chevron-down Created with Sketch Beta.
April 29, 2024 Feature

Outside the Scope: How to Conquer Corporate Representative Depositions

David S. Becker and Emily C. Shapiro
Whether taking the deposition or preparing a witness, always keep the subject matter outlined in the notice top of mind.

Whether taking the deposition or preparing a witness, always keep the subject matter outlined in the notice top of mind.

Getty Images/iStock/Getty Images Plus/Jacob Wackerhausen

Corporate representative depositions are an indispensable part of commercial litigation. Rule 30(b)(6) of the Federal Rules of Civil Procedure allows a deposing party to call for the company to designate a witness to testify on certain identified topics. Most states likewise adopt the same or a similar rule for state court matters. These rules provide a critical convenience for both sides in commercial litigation. Particularly, they permit parties seeking information from their adversaries to seek information based on subject matter, without needing to know beforehand each and every individual corporate employee who has the specific, requisite knowledge. At the same time, they permit companies to present a single prepared witness (or group of witnesses), properly prepared and armed with the company’s knowledge, to provide requested information in a streamlined process, avoiding serial presentation of numerous witnesses. The rules thus provide efficiency, limiting the expenditure of time and resources that could otherwise be focused on the company’s business.

The rules are relatively straightforward, but, in practice, corporate representative depositions can present challenges both for deposing attorneys and for the companies, and their counsel, responding to notice and subpoenas. These challenges arise both in discovery and at trial and require focused understanding to optimize the value of this expedience. This article discusses the ins and outs of corporate representative depositions and provides best practices for propounding notices, responding to them, and preparing and presenting witnesses pursuant to those notices.

Notice or Subpoena Directed to an Organization

Federal Rule of Civil Procedure 30(b)(6). Rule 30(b)(6) states as follows:

In its notice or subpoena, a party may name as the deponent 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 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. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

Rule 30(b)(6) dictates the procedures, for both parties involved, to prepare the most efficient and helpful discovery process while still understanding it is on behalf of the corporation, not individuals.

December 2020 amendment. The 2020 amendment to Rule 30(b)(6) made clear that the meet-and-confer requirements apply in third-party subpoenas and that parties are to provide a subpoena to advise “a nonparty organization of its duty to confer [with the serving party] and to designate each person who will testify.” The purpose was to strengthen the rule’s requirements to avoid deposing parties providing overly broad topic lists and, in turn, creating scenarios where respondents presented inadequately prepared witnesses and unnecessary follow-on motion practice. The rule now requires that “[b]efore or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.” This amendment serves to prevent conflicts or disagreements regarding the topics prior to the deposition itself. Significantly, it allows parties to clarify and focus the matters for upcoming depositions and ultimately create a more productive process.

Where Deposition Limits Apply, Rule 30(b)(6) Preserves Flexibility in Discovery

Depositions under Rule 30(b)(6) are treated as a single deposition. Thus, in jurisdictions where there are limits, such as those applying a limit of 10 depositions per side, a party can still preserve nine specific noticed depositions while covering extensive ground in the single corporate representative deposition. Depending on the court where the litigation is pending, this has the potential to expand the total number of depositions available to a party.

But courts differ as to how they apply the seven-hour time limit where numerous corporate representative witnesses are designated to testify. In practice, it is a good idea for both sides to agree on an extended time limit for the corporate representative deposition—particularly when numerous individuals are being designated to cover portions of the noticed subject matter. Alternatively, a party seeking appropriate time to question numerous designees or to address a large number of topics can always approach the court to seek additional time for questioning.

While the requirements for preparation may be different from ordinary depositions, the same rules apply to the way a deposition itself is conducted. That said, during deposition, there is nothing preventing the parties from reasonably agreeing to let the corporate representative take a break to confer with a colleague by phone or other means to get an accurate answer. Of course, if such breaks become excessive, there may be a valid objection that the witness is inadequately prepared, and that issue can be addressed with the court and may lead to supplemental time with the representative—potentially at the expense of the presenting party.

Rule 30(b)(6) Allows a Corporation to Present a Coherent Story

When companies are parties in litigation, it is often the case that very few, if any, individuals know all of the facts relevant to the case. Individual employees know facts relevant to their specific roles but lack an overall understanding of how those facts fit together as they pertain to the allegations and claims. Without the expedience of the procedure under Rule 30(b)(6) and its state law counterparts, companies would be required to assemble numerous witnesses and marshal them through the discovery process. Every point would require separate testimony and/or affidavits and follow-on depositions. From the perspective of a plaintiff, counsel would be left to treat every case as a search for needles in a haystack, working their way through corporate organizational charts and seeking depositions of employees based on suspected knowledge instead of actual involvement in the relevant matters. Rule 30(b)(6) helps both sides avoid the unnecessary wide-net initial search and allows for a single witness or group of witnesses to be prepared and presented to cover the legal issues identified by a litigation adversary in their own words.

Corporate Representatives Should Be Chosen Wisely

Once a corporation is subpoenaed through a proper notice or subpoena, the corporation has the opportunity to elect a representative for the company to testify. That designee will present the views, facts, and opinions of the organization as a whole. Importantly, the corporation has complete discretion to choose the representative, so long as the representative is properly prepared and can deliver the corporate knowledge requested. Notably, the representative deponent could be a high-ranking officer or manager who consults with their team to prepare for the deposition, but the representative (as long as they can keep the information straight) could even be a contractor or a former employee. What matters is that the individual takes the time to understand things and can provide the facts when questioned.

The “best” representative may not always be the most knowledgeable. A corporation may choose an individual based on familiarity with the company or merely on personality and expressiveness in their position. A person who lacks expression or character may be more helpful than someone who can answer the questions in the best interest of the company but is erratic. But in making this choice, the corporation must be wary of the relationship and opinions the representative has toward the company itself. If the person harbors any ounce of doubt about the corporation, the deposing party may use that to their advantage, and in turn, the designation of this witness could provide testimony that, while comprehensively addressed by a single representative, ends up doing the corporation more harm than good.

When selecting this individual, the corporation and individual must give consideration to the fact that the answers represent the knowledge of the corporation and not the personal knowledge of the employee—unless asked specifically. The representative is not speaking on behalf of a “mere corporate employee” and must provide information coming from a representative capacity. Further, this means any interpretation of facts, beliefs, or opinions must be how the corporation and not the individual would interpret them—even if this means the personal opinion and corporate opinion diverge. If the chosen representative does not know all of the answers for the deposition firsthand, the company is obligated to prepare them so they can provide answers and bind the corporation; constantly dismissing questions due to lack of knowledge will not make a favorable presentation for the company. Merely because a corporation lacks witnesses with personal knowledge does not excuse it from its obligations under Rule 30(b)(6), and the failure to provide a witness with appropriate knowledge may amount to failure to testify. If this were not the case, any corporation could simply avoid answering critical questions at deposition by presenting a witness unprepared to provide answers to subjects about which they want to avoid being pinned down.

Properly Preparing the Corporate Representative Is Key

Proper preparation of the Rule 30(b)(6) witness is critical. This preparation begins at the outset with the identification and designation of the proper witness(es). Once identified, the company designates and begins preparation of at least one officer, director, managing agent, or other reliable witness to testify. But the choice of this witness is not something the corporation can make without regard to the concerns of the individual chosen. Whomever the corporation chooses must consent to testifying. Neither a corporation nor any party can force any witness to testify without their consent. The purpose of this aspect of Rule 30(b)(6) is threefold: (1) to reduce the difficulty a deposing lawyer has before deposition to find the perfect “managing agent” or representative, (2) to stop people from the organization constantly denying questions they clearly know the answers to, and (3) to assist in finding the most knowledgeable people of the corporation for the case.

Because the witness is going to be giving the corporation’s testimony, and often will be testifying as to subjects they are not intimately familiar with (or in some cases, have no familiarity with whatsoever), time must be taken in preparing the witness. Unlike a common fact witness, counsel has an obligation to test the witness’s knowledge and, where lacking, obtain the information for the designee to deliver at the deposition. Often, preparation of a corporate representative will last many hours or even days and may require calls or meetings with others with firsthand knowledge. It may require reviewing documents and asking questions to ensure that the designee can properly testify about them. In general, the scope of preparation is dictated by the notice. That is why it is extremely important, well before the deposition, that the parties’ counsel meet and confer regarding any differences of interpretation relating to the topics identified in the notice. It is best practice to put designations and objections, perhaps including counsels’ and parties’ understanding of certain subject matter descriptions, in writing to ensure that the preparation conducted matches the information requested.

Effect of the Corporate Representative’s Testimony

It is imperative that a company chooses the right person(s) to testify and prepare them properly, not only because courts may sanction inadequate preparation, but also because the testimony that the witness gives in a deposition is binding on the corporation. If the corporation does not believe that the testimony of the particular person will benefit the company, or believes that the witness has ulterior motives, it should not use that individual as a representative. The representative uses knowledge they either are aware of from working at the organization or became aware of through preparation. Any answer a representative gives during depositions will be used by the other side as “gospel,” and they are likely to plan their case strategy around it. That said, binding testimony does not equate to a judicial admission. “[A] judicial admission is a deliberate, clear, unequivocal statement by a party concerning a concrete fact within that party’s knowledge. Where made, a judicial admission cannot be contradicted in a motion for summary judgment or at trial.” To the contrary, an inaccurate statement by a corporate representative will be attributed to the company and may well be used at trial to contradict inconsistent testimony from other witnesses but is not necessarily something that cannot be overcome. However, it is quite likely that every time the statement from the deposition is cited, it will be accompanied by some incantation of “speaking as a designated corporate representative, he testified . . .” That can have significant impact on a fact finder.

Using Rule 30(b)(6) Throughout the Litigation Life Span

That being said, a party cannot notice a Rule 30(b)(6) deposition frivolously and think they will get all the answers they need and more. The deposing party must provide a notice that describes “with reasonable particularity” the matters for examination against the corporation prior to the deposition taking place. If there is a dispute regarding scope and the court is required to intervene, the court will usually analyze the breadth of the requests and the burden placed on the corporation and will not permit undue burden in the corporation’s preparation of deponents. Courts often will not grant substantial leeway to inquire beyond narrow, specific topic area designations, as it is the deposing party’s job to provide themselves room to ask follow-up questions and a narrow scope may render the follow-ons outside the scope. While there is no specificlimit in number of topics in a 30(b)(6) notice, courts are wary of notices that use language such as “not limited to topics listed,” and reasonableness standards are often applied. This protects against depositions going on for too long, and affording an unfair advantage to the deposing party if the corporation cannot adequately prepare their representatives. While limits to 30(b)(6) notices are relatively generic, most jurisdictions do not pose any more specific boundaries for what must be included in the notice in connection with the actual deposition. In practice, deposing parties often probe the edges of the scope of the notice, and it is the defending counsel’s job to police those boundaries through objections. Because of this, it may also be good practice for the corporation to select a representative without knowledge outside the scope of the notice to avoid presenting a witness that could wander, through testimony, into irrelevant areas.

While the rule affords a corporation the same litigation protections an individual receives, a corporation has an early notice advantage. Rule 30(b)(6) provides a notice of most, ideally all, topics counsel will cover at depositions. This allows the corporation to choose the representatives that either have the most knowledge surrounding the topics or can answer the questions in the most favorable light to the corporation and prepare them for the deposition.

If, after looking through the notice, the corporation finds the deposing party trying to seek too much information, or manufacture a conflict with prior discovery, it must move quickly to identify and take steps to pursue resolution of the issue. The corporation should begin by asking the other party how to best resolve the dispute and advise that if the two cannot come to a resolution, they may seek a protective order from the court. Failure to take such action could result in adverse consequences to the corporate client in the form of witnesses literally being compelled to testify about issues that should by all reasonable measures be considered well outside the appropriate scope of the corporation’s duty to provide testimony on, or to testify about issues they cannot be properly prepared for.

Dealing with Questions Outside the Scope

As stated earlier, most jurisdictions do not have clear limits for discovery and thus typically allow the deposing party to go into a line of questioning that may not be explicitly set forth in the 30(b)(6) notice. There has been varying case law regarding the limitations that can be placed on questioning at a Rule 30(b)(6) deposition, and some jurisdictions follow opposing views.

Rule 30(b)(6) depositions are generally limited to matters only contained in the notice, and the deposing party must “confine the examination to the matters stated ‘with reasonable particularity’ contained in the Notice of Deposition.” The purpose of this limitation is to permit the party to prepare the best representative for the deposition and avoid a situation where after bringing the most knowledgeable representative, or the most prepared one, the deposing party goes “off book” and asks questions from topics not listed, and the representative is unprepared to answer them. If a party asks a question outside the scope in a limiting jurisdiction, however, counsel should generally avoid advising the corporate representative not to answer.

Be wary, though; some jurisdictions have issued rulings providing a significant amount of leeway for the deposing party to ask questions on topics not provided in the notice. That said, because there is no defined limitation on the scope of the questions, it is very important for a party to object to any questions they believe are well outside the scope of the matters they prepared for. If a party objects to a line of questioning and the deposing party still asks questions on the topic, the corporation can answer, but responses to questions outside the scope of the notice, or unknown to the witness, will not bind the corporation, because counsel has no obligation to prepare corporate representatives on topics not identified.

Moreover, a corporate representative should not be faulted for simply confessing a lack of knowledge or fear reprisal for having been ill-prepared. When seeking such information, there is always the possibility that the noticing party could re-notice a deponent and, if found to be appropriately within the scope of topics to be addressed at deposition, ask the same questions to which the attorney for the corporate designees previously objected. They might even be able to seek fees if the corporation’s position was based on a myopic reading of the noticed subject areas.

State Court Corporate Representative Depositions

Many states have Rule 30(b)(6) equivalents. Some states choose varying language, and other state rules cite 30(b)(6) within them. After the enactment of the federal rules, many state courts nearly fully adopted the federal rules. However, “it is arguable that there are no longer any true replicas of the [Federal Rules of Civil Procedure] to be found among the local procedural systems of the fifty states and the District of Columbia.” Several states include in their state rules of civil or trial procedure language very similar to Rule 30’s that “[a] party may in his notice name as the deponent an organization, including without limitation a governmental organization, or a partnership and designate with reasonable particularity the matters on which examination is requested.”

For instance, Illinois Supreme Court Rule 206(a)(1) is the state equivalent of a Rule 30(b)(6) deposition request. This rule focuses on the representative deponent. Illinois permits a party to “name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested” and advise the corporation of its duty to designate a knowledgeable representative. Both the “reasonable particularity” standard and the duty to designate mirror the Federal Rules of Civil Procedure standards as defined earlier.

Previously, some states, such as Illinois, had no equivalent to Rule 30(b)(6) and had to argue its applicability to the state court systems. It was not until 1987 when Illinois enacted Rule 206(a) and gave the state its own discovery rules. Illinois looked at the Federal Rules of Civil Procedure to best enact Rule 206 because it had minimal precedent and minimal guidance on the correct interpretation. Therefore, the two are substantially similar. Illinois courts, however, do not say nearly as much about this process as the federal rules do, and only a handful of cases apply it, the most recent application being from 2020 (and 2016 before that).

Strategies for Conducting or Defending a Corporate Representative Deposition

With that historical background in mind, the following are some recommendations for pursuing deposition testimony pursuant to and providing a witness to appear to testify in response to a Rule 30(b)(6) deposition notice or state rule equivalent.

Cover all bases. It is in the best interest of the party seeking discovery from a corporate designee to construct the notice to “cover all possible topics of inquiry” to afford themselves the most answers and less risk of objections. Provide specificity in the designations, but make sure—to the extent reasonably possible—that they cover every conceivably relevant topic.

Choose designees wisely. It is absolutely critical that the responding party select the most appropriate person to appear. Sometimes, the most knowledgeable person is the best choice. Sometimes, the best testifier is the best. This will all depend on the party’s understanding of its case and its witnesses and clients.

Notify the other side of designations and objections in writing and well in advance. Often, parties simply rely on phone conversations or cursory correspondence to sloppily designate a witness. This is a mistake. Designations should be made on a subject-by-subject basis, and objections should be stated clearly. Sometimes, the deposing party may merely focus on the designations and never address or respond to the objections, leaving counsel representing the deponent free to rely on those objections at the deposition. It is good practice to treat the response to a 30(b)(6) notice like a response to interrogatories or requests for documents and prepare a responsive pleading containing all the relevant information and explanations. Conversely, it is critical to closely review the objections raised and seek resolution of same in advance of the deposition so that questioning is not inappropriately curtailed.

Prepare witnesses carefully and comprehensively. Set aside the appropriate time necessary to prepare in advance of the deposition and keep that preparation time close to the date of the questioning. It is good practice to line up not only the designee(s) but also colleagues with relevant knowledge in advance of the deposition. Expect to spend significant time preparing the witness—particularly when the witness has little firsthand knowledge. This is like learning lines for a play. Take the time to rehearse and make sure the lines are correct.

Rely on the right to get the requested information when it is covered in the notice. When questioning, do not settle for nonanswers such as “I don’t know,” “maybe,” “I can’t remember,” etc. If a corporation designates a witness who lacks knowledge of the matters specified in the notice, it may be a failure to appear to testify, and the party seeking the testimony may have the right to seek sanctions. One good practice for dealing with this is to pause the deposition and require that the deponent take a break and confer with appropriate colleagues back at their company. Perhaps they can clarify the issue and, in doing so, avoid costly motion practice.

Know the notice. Deposing parties should likewise be well-versed in the scope and construction of their notice. Asking questions the witness was not aware would be asked, and thus was not prepared for, will permit the witness to avoid answering. The court is unlikely to force an answer when the subject was not included in the notice. Conversely, if a witness provides full disclosure that they do not know an answer on behalf of the company, or were never prepared for the topic, their response may be deemed inadequate by a reviewing court and result in the company’s admission of the lack of knowledge.

Defend the witness with careful attention to the nature of the questions. During the deposition, questioners often veer away from the formality of recognizing that the witness is a corporate representative, and the witness may get lazy about making clear that they are testifying about corporate knowledge and not their own. The deposing party may phrase questions using “you,” which can be confusing for the deponent as to whether “you” means the individual witness or the corporation. The deponent should be prepared to be cautious in their answers and phrase the answers in all cases as the knowledge of the company. More importantly, this is an appropriate time to make objections about the use of “you” and to make clear that the “you” is the company and not the individual witness. This is particularly critical when important questions are pending—that sound bite may be a headline in a future motion, or it may be read to a jury at trial.

Rule 30(b)(6) in Trial

Finally, it is important to take note of the fact that failure to properly prepare a Rule 30(b)(6) witness, raise objection where appropriate to questions beyond the scope of the 30(b)(6) notice, or encourage a witness with uncertainty about a topic to seek clarification before answering can prove enormously damaging at trial. In pertinent part, Federal Rule of Civil Procedure 32(a) states as follows:

(1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:

(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;

(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and

(C) the use is allowed by Rule 32(a)(2) through (8).

. . .

(3) Deposition of Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).

Thus, any statement made by the corporate designee witness, even if technically hearsay under the Federal Rules of Evidence, or information outside the witness’s personal knowledge, may potentially be admissible as an admission against interest. This makes it absolutely critical that appropriate attention be given to every step of the process in responding to a Rule 30(b)(6) deposition notice, preparing the witness for deposition, and representing the witness at deposition. Failure to do so could prove to be literally fatal to the corporation’s defense at trial.

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    David S. Becker

    Dickinson Wright PLLC

    David S. Becker is a member of Dickinson Wright PLLC and part of the firm’s IP and commercial litigation groups. He works out of the firm’s Chicago office and has represented companies and individuals in litigation involving technology and ideas. He has served as chair of numerous general and standing committees in TIPS and is part of TIPS Council.

    Emily C. Shapiro

    Gutnicki LLP

    Emily C. Shapiro is an associate with the firm Gutnicki LLP in Skokie, Illinois.