Preparation
Rule 30(b)(6) mandates that the witness be prepared to testify not only about information known to him or her, but also about matters that should be known by the corporation. Alexander, 186 F.R.D. at 141. The purpose of this is fairness—to prevent “sandbagging” of the other party by providing a half-hearted witness at deposition and more thorough and vigorous testimony at trial. United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C. 1996). In addition to providing factual testimony, the Rule 30(b)(6) witness must be able to testify about the corporation’s subjective beliefs and opinions. Id. at 361.
Preparation requires the witness to be ready to testify about information reasonably available to the entity, whether the information derives from documents, current or former employees, or other sources. Bank of New York v. Meridian BIAO Bank of Tanzania Ltd., 171 F.R.D. 135, 151 (1997). A corporation cannot refuse to designate witnesses by responding that it cannot produce someone with personal knowledge on the deposition topic. Sprint Commc’ns Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 528 (D. Kan. 2006). Likewise, that a witness’s deposition preparation might be burdensome is no excuse. Ice Corp. v. Hamilton Sundstrand Corp., 05-4135-JAR, 2007 WL 1500311, at *3 (D. Kan. May 21, 2007).
Documents
Under Fed. R. Civ. P. 30(b)(2), the deposition notice may also include a request for documents. Keep in mind that “[p]roducing documents at the deposition in lieu of testimony . . . is not a substitute for providing an educated deponent. . . . Indeed, such conduct smacks of gamesmanship.” Pioneer Drive, LLC v. Nissan Diesel Am., Inc., 262 F.R.D. 552, 559 (D. Mont. 2009) (citation omitted). Thus, when a Rule 30(b)(6) notice includes document requests, the corporation should produce a witness prepared to discuss both the deposition topics and any corresponding responsive documents.
Remedies
Not all hope is lost when an entity produces an unknowledgeable witness or fails to produce responsive documents. When it becomes obvious during the deposition that the witness is unwilling or unprepared to testify on the notice topics, be sure to obtain admissions on the record establishing the witness’s lack of knowledge, failure to prepare, or failure to search for responsive documents. This will give you the foundation to file a motion to compel and for Rule 37 sanctions because such conduct is tantamount to a failure to appear. In addition to asking for attorney fees and costs related to the deposition, consider requesting an order requiring the entity to designate knowledgeable witnesses to provide additional Rule 30(b)(6) deposition testimony at the entity’s expense.