Playing Defense at the Rule 30(b)(6) Deposition

Federal Rule of Civil Procedure 30(b)(6) permits a party to notice or subpoena the deposition of “a public or private corporation, a partnership, an association, a governmental agency or other entity and must describe with reasonable particularity the matters for examination.” The named organization “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Fed. R. Civ. P. 30(b)(6). While defending Rule 30(b)(6) depositions presents a daunting task, a poor defense strategy will often derail the course of litigation and may bind the corporation to unfavorable testimony. The following are tips to consider when preparing for and defending a successful 30(b)(6) deposition.

1. Choose the Right Witness
   The key to a strong defense is wisely selecting and preparing your corporate witness to provide complete, knowledgeable, and binding answers. Unlike a usual deposition where the moving party names the individual to be deposed, the ball is in the defense attorney’s court when choosing a 30(b)(6) witness. As the corporation’s designee, the witness is required to testify on the corporation’s behalf regarding to the topics presented in the 30(b)(6) notice. While the witness does not have to be the most knowledgeable, the designated witness should be thoroughly experienced in the noticed topics and should be able to accurately respond. Presenting a knowledgeable corporate witness will often avoid the necessity of presenting multiple representatives on certain topics. Failure to present a knowledgeable corporate witness may end in a motion to compel or a variety of sanctions once opposing counsel discovers the witness lacks knowledge on the topics listed in the notice.
2. Prepare the Witness
   Defense attorneys have a duty to prepare their corporate witness for the deposition. See Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995). Defense attorneys should aim to set aside ample preparation time to review applicable materials, such as prior deposition testimony, exhibits, and summaries of the facts and issues of the case. Corporate witnesses should also be thoroughly familiar with the corporation’s procedures, personnel files, or other corporate documents that may be addressed during the deposition. If the corporate witness does not know an answer to an important question during preparation, further inquiry should be made prior to the deposition. Simply preparing the witness on the morning before the deposition is insufficient, and defense attorneys should consider conducting mock depositions to shed light on additional information or documents that should be located or reviewed prior to the deposition.
3. Make Strategic Objections during the Deposition
   When a question falls outside of the scope of the noticed topics, defense attorneys should object to the question on the grounds that it exceeds the scope of the witness’s corporate knowledge. Despite the objection, however, a corporate witness may still respond to the question. Rule 30(b)(6) presents little guidance as to whether a 30(b)(6) deponent can respond to questions outside the scope of topics identified in the notice, and federal courts are split on whether the examination can go outside of the scope of the notice. See, e.g., Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 730 (D. Mass. 1985) (holding that the examination must be confined to matters stated ‘with reasonable particularity’ in the deposition notice); But see also King v. Pratt v. Whitney, 161 F.R.D. 475, 475 (S.D. Fla. 1995) (holding that is more broad and accepting of questions outside the scope or the notice as long as they are within the general discovery rules).

Conclusion

Although onerous, preparation is key. Defense attorneys who put in the time to prepare the corporate witness can further the corporation’s trial strategy. Failing to properly prepare the witness will not only end in sanctions against the corporation, but can also limit the corporation’s options at the trial. Defense attorneys must tackle the obligations imposed by Rule 30(b)(6) with full force to strengthen the corporation’s defense and trial strategy.