The Eleventh Circuit recently affirmed sanctions against a plaintiff, holding that striking the plaintiff’s claims was an appropriate sanction for continued obstructionist behavior and failure to obey discovery orders in connection with the plaintiff’s Federal Rule of Civil Procedure 30(b)(6) depositions. Although the behavior exhibited by the plaintiff was extreme, the ruling provides important guidance for preparing Rule 30(b)(6) witnesses.
Rule 30(b)(6) allows an entity party to designate a representative who testifies on the entity’s behalf. In the underlying action of Consumer Financial Protection Bureau v. Brown, 69 F.4th 1321 (11th Cir. 2023), the plaintiff attempted multiple times to avoid Rule 30(b)(6) depositions of its witnesses, with the district court forced to then require the plaintiff to provide Rule 30(b)(6) witnesses for depositions and answer factual questions.
At the plaintiff’s Rule 30(b)(6) depositions, the witnesses and lawyers exhibited obstructionist behavior including:
Following the plaintiff’s Rule 30(b)(6) depositions, certain defendants moved for sanctions under Federal Rule of Civil Procedure 37(b) for failure to obey a court order to provide or permit discovery and Rule 37(d) for failure to appear for the depositions. The district court granted the defendants’ motion and dismissed those defendants from the case.
Under Rule 37(b), the district court found that the plaintiff disregarded its prior orders when the witness (1) read from memory aids to such an extent that the defendants could not with reasonable particularity identify what supported the plaintiff’s claims, and (2) objected on work-product grounds to questions that the district court repeatedly ordered must be answered.
Regarding Rule 37(d), the district court ruled that, although the deponents were physically present, their inability to answer questions without memory aids rendered the witnesses effectively unavailable.
Because the district court was not optimistic that reopening the depositions would be fruitful, it granted the motion for sanctions and struck all of the plaintiff’s claims against the moving defendants. The Eleventh Circuit affirmed the order on appeal, under an abuse-of-discretion standard. However, the Eleventh Circuit did not reach the question of whether a Rule 30(b)(6) witness who is physically present but refuses to offer meaningful testimony has failed to appear under Rule 37(d). Instead, the Eleventh Circuit affirmed the district court’s Rule 37(b) analysis.
Overall, practitioners preparing a party for a Rule 30(b)(6) deposition should be mindful that, although the witness is not required to provide the keys to their litigation strategy, they are required to testify regarding exculpatory factual information. If practitioners provide their Rule 30(b)(6) witness with a memory aid, then they should ensure that the witness testifies independently. And all practitioners should take extra care to ensure that discovery practice abides by any previous court rulings in the case. Although striking claims is an extreme sanction, this case is an example that courts will order it.
