I would venture to guess that most litigators reading this column can recall a time or two when opposing counsel has leered at them from across the table (or, these days, through a webcam on Zoom) and accused them of failing to adequately prepare a corporate witness on noticed deposition topics. A fight typically ensues.
This is why, in 2020, Rule 30(b)(6) was amended to require a good faith conference between parties “before or promptly after” a corporate deposition notice is served. In practice, however, it seems as if many litigants either ignore the rule or give it short shrift, blindly finger-pointing about the failure to prepare a witness to testify on a topic without first establishing a mutual understanding of the scope of that topic.
To be clear, I am not arguing that thorough witness preparation is not required. But I am emphasizing that both parties have burdens to meet under this rule.
The plain text of Rule 30(b)(6) requires that upon receipt of a notice to depose a corporation, “the named organization must designate one or more officers, directors, or managing agents…or other persons who consent to testify on its behalf” and must produce the designated individuals to testify about “information known or reasonable available to the organization.”
The standard for preparation to testify has been articulated as a requirement to make a “conscientious and good-faith endeavor” to prepare witnesses “in order that they can answer fully, completely, and unevasively, the questions posed…as to the relevant subject matters,” just as a party would be required to do in responding to interrogatories.
The rule does not require “absolute perfection” in preparation, note the courts. But to the extent the corporate representative does not have personal knowledge regarding a noticed topic, courts have held that he or she has an affirmative obligation to investigate in order to answer in a manner that reflects the knowledge of the corporation as a whole. This might include a review of prior fact witness deposition testimony and exhibits, discussion with other past or present employees, or a review of documents, “even if the documents are voluminous and the review of the documents would be burdensome.”