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.”
It is well known that failure to adequately prepare a corporate representative for deposition can lead to significant adverse consequences for your client. Some courts have ordered an unprepared party to expend the time and money to reprepare and reappear, possibly with a new witness better suited to address the noticed topics. Others have determined that testimony given by a nonresponsive deponent is deemed binding on the corporation, such that the corporation cannot offer contrary evidence at trial. Still others have held that producing an unprepared witness “is tantamount to failure to appear” and, thus, merits Rule 37 sanctions ranging from the imposition of costs to entry of a default judgment.
However, litigants seem to forget that the burden to adequately prepare a witness to testify only comes into play after the deposing party has met its burden to set forth deposition topics “with reasonable particularity” in the first place. Some courts have refused to award sanctions for an allegedly unprepared corporate witness where the topics as articulated in the deposition notice failed to “reasonably particularize the subjects” for examination. These courts have observed that it is simply not fair to “demand that a corporate designee be prepared to speak with encyclopedic authority” in response to “counsel’s quizzing.”
In other words, the process is meant to be a two-way street, and the parties should use Rule 30(b)(6)’s meet and confer requirement to engage accordingly. While the noticing counsel may be concerned about limiting the scope of its examination too narrowly by agreeing to narrow topics during a meet-and-confer, it would be equally problematic to have a court later declare that the burden to prepare never even shifted to the party producing the corporate witness because the topics were not articulated with “reasonable particularity.”
With increased communication regarding topic scope during a meet-and-confer, the deposing party will get better, more useful testimony because the witness will be prepared to speak to specific issues in more detail. And the party being deposed will be able to reduce the chances its witness inadvertently provides inaccurate or incomplete testimony that will bind the corporation on specific issues that might fall within a larger topic.
Ideally, all of this will allow the parties to address potential privilege issues in advance of deposition, rather than having to call the court for guidance in real time, and should also reduce the time and cost associated with motions to compel (if any are required after the conference). Finally, compliance with the rule will ensure that litigants are not drawing attention from the court for the wrong reasons—an outcome both sides would agree is best to avoid.
