I. Introduction
A corporate deposition authorized by Fed. R. Civ. P. 30(b)(6), and similar state rules[1] is a powerful discovery device with far-reaching implications. Entities served with such a notice face significant burdens to select and prepare the appropriate witness or witnesses to testify. This article reviews the full scope of the Federal rule, identifies some pitfalls that may occur if it is not taken seriously, and offers some practical pointers to maximize a successful defense of these depositions.
The current rule states:
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.[2]
The rule describes three key elements. First, the deposing party provides notice of the proposed topics. Second, the parties must confer regarding the scope of the noticed topics. Finally, the deponent entity must designate an appropriate witness and adequately prepare him to testify on behalf of the entity.
II. The Rule 30(b)(6) Procedure
A. Notice
Rule 30(b)(6) is typically used when a party seeks information from an entity but does not know the identity of the person(s) within the entity who possess the information. The rule does not preclude deposing employees of the entity who are known to the parties and/or played a significant role in the facts leading to the litigation. For example, if a plaintiff sues his former employer alleging discrimination, the supervisor(s) and colleague(s) who witnessed or perpetrated the purported discriminatory behavior would be known to the plaintiff and would be deposed under standard deposition procedures as fact witnesses.
However, the plaintiff may not know the persons in upper management who participated in any investigation relating to his complaints. As a result, he may notice a Rule 30(b)(6) deposition of the employer-defendant seeking information regarding the investigations, policies, and other matters material to his claim.[3] To that end, an employee may be deposed in both his individual capacity and as a corporate designee for the topics listed in a 30(b)(6) notice, either at the same time (which brings its own concerns and troubles) or at different points in the discovery process.
B. Duty to Confer and the 2020 Amendments
Parties have the right to conduct Rule 30(b)(6) depositions. They need only serve a notice pursuant to Rule 30(b)(6), designate the entity to be deposed, and “describe with reasonable particularity the matters for examination.”[4] Prior to the 2020 amendments, the rule proved troublesome for many litigants who disagreed on the number of topics or witnesses who may be involved in responding to a notice and the overall scope and burden a single party may place on an entity for purposes of discovery. The revision now requires that the parties confer regarding the topics of examination before or promptly after the notice is sent. This mandate seeks to avoid the common scenario where parties disagree about several matters, including the number and scope of topics and the overall length and demands on an entity that any Rule 30 (b)(6) notice imposes.[5] The conference also allows the parties to identify collaboratively the topics that are too broad, too narrow, or not relevant or proportional to the claims and defenses in the lawsuit, and hopefully, to reach a mutual agreement about the scope of the deposition before it occurs. Finally, the requirement of a pre-deposition conference is intended to help the parties identify core disputes regarding the matters to be discussed and give the parties an opportunity to seek the court’s resolution prior to the scheduled deposition.
C. Designation and Preparation of the Deponent
Following the required conference (and court intervention, if necessary), the entity must designate one or more witnesses to testify on its behalf, and if multiple witnesses are identified, to state which topics each will address at his or her deposition. The entity is charged with a duty to prepare the witness(es) to fully testify on all designated topics on behalf of the entity—that is, each witness must prepare for and testify to all knowledge of the entity on a specific topic. This almost always requires a designated witness to “study up” on documents and information not already known to him or her in their day-to-day work for the entity.[6] The designated witness’s testimony will be binding on the entity, regardless of its accuracy or completeness.
Most courts take an expansive view of the obligations of a company that receives a Rule 30(b)(6) deposition notice:
[A Rule 30(b)(6) deponent] has an affirmative obligation to educate himself as to the matters regarding the corporation. This duty to prepare extends beyond the personal knowledge of the individual witness for the entity and includes all matters that are known or reasonably available to the corporation. Even if the documents are voluminous and the review of the documents would be burdensome, the deponents are still required to review them to prepare themselves to be deposed.[7]
The process of seeking out additional information for the witness and preparing the witness to testify on the breadth of topics noticed by the opposing party is the most burdensome aspect of a Rule 30(b)(6) deposition. This process is fraught with pitfalls and common mistakes, which are discussed further below. It is important to note that federal courts have endorsed and reiterated the broad duties and responsibilities of the entity to adequately prepare its witnesses to testify on its behalf. For example, though the notice must specify topics with reasonable particularity, courts have allowed Rule 30(b)(6) depositions to cover dozens of topics.[8] The entity must also make a conscientious, good-faith effort to designate a witness with knowledge of the topics contained in the notice and to prepare that person to answer questions fully including on matters beyond the personal knowledge of the witness. The Fifth Circuit has held that the entity-deponent must prepare the designated witness “to the extent matters are reasonably available, whether from documents, past employees, or other sources.”[9]
These requirements emphasize the importance of preparing a witness with information, documents, policies, experiences and knowledge from throughout the entity so the witness can adequately testify on its behalf. This requires significant input and effort from the entity and cannot be delegated to outside litigation counsel, who will lack the institutional knowledge and experience to investigate, identify and educate on the noticed topics. Instead, it must be a joint effort.
III. Preparation and Presentation of Corporate Designee
A. Pitfalls to Avoid in Preparation and Testimony
Today’s economic climate often requires that companies operate leaner (translation: fewer employees). Therefore, many companies may think they do not have time to select or prepare a witness or perform the necessary work required. Compounding this problem is the fact that the rule remains vague. What is “reasonable particularity”? What exactly must a witness do to prepare? How much of the prep work winds up being work product as opposed to fair game in deposition? What are the consequences of not getting this right?
The first three questions are not easily answered, but authorities cited in this article do offer a good start. One point that is clear, however, is that the consequences of not getting this right can be catastrophic. A corporate representative’s testimony may be used as a corporate admission against interest in subsequent lawsuits. Rule 30 (b)(6) testimony has often been played and re-played over years in products liability or other multi-district litigation involving the same or similar products or operations.[10] Thus, the risks of getting it wrong can potentially haunt a corporation for years, if not decades.
An unprepared witness can torpedo an entity’s entire litigation strategy. Entities must avoid shielding a witness from relevant information within the scope of the deposition notice or risk facing a motion to compel for alleged evasive answers. In addition to monetary sanctions under Federal Rule 37 for failure to properly identify and prepare a witness, courts impose significant penalties against a party who fails to properly prepare its designated witnesses, including precluding the entity from introducing evidence at trial regarding topics on which the witness was unprepared to testify at the deposition.[11] These pitfalls demonstrate the enormous costs—to the entity and to current and future litigation—that could result from taking shortcuts in the preparation of a Rule 30(b)(6) witness.
B. Practice Pointers for Optimizing Corporate Designee Performance
How can an entity avoid these pitfalls? The following practice pointers may help optimize the performance of your witness and the outcome of the deposition itself:
- Fully engage in early, good faith conferrals on the scope and breadth of the designated topics. Attempt to reach common ground among the parties with clear boundaries for the scope and length of the deposition.
- If needed, file a motion for a protective order before the Rule 30(b)(6) deposition so that you have clear guidance on the scope of topics that are proportional and relevant to the claims as well as topics stated with “reasonable particularity” as the rule requires.
- Select a witness who has prior experience in depositions. It not only helps overall performance, but it reduces preparation time by not having to dwell on the basics of depositions.
- Sometimes the list of topics is too broad, or too much, for one witness to handle. Whether to designate more than one representative as a testifying witness is a case-by-case decision. Consideration should be given to whether one person is fully capable of handling the questions as well as the preparation required, or whether topics can be delegated among more than one witness.
- The Committee Notes to the 1993 Rule Amendments state that a Rule 30(b)(6) deposition is one deposition even though multiple witnesses may be designated to testify on the topics listed in the notice.[12] As noted above, the length of each individual deponent, and the overall length of the Rule 30 (b)(6) deposition may be subject to adjustment. But if the parties do not agree, court intervention will be required.[13]
- Michael Jordan, Tom Brady, Lionel Messi and Itzhak Perlman never stopped practicing. Practice and preparation are important even for experienced witnesses. Malcolm Gladwell is quoted as saying, “Practice isn’t the thing you do once you’re good. It’s the thing you do that makes you good.” Many litigants are hesitant to prepare their witnesses as thoroughly as they should because: (1) it’s expensive; (2) it’s time consuming and burdensome; or (3) they’ve done it before, so they don’t need it now. However, given the potential that this testimony can and will be used against the entity for many years, and beyond the present case, it is hard to “overprepare.” Often, multiple sessions are needed in even the simplest of cases. “Mock exercises” — where a witness is videotaped, presented with anticipated questions, and later de-briefed – remain a great strategy with even the most seasoned witnesses. Underprepared witnesses present grave risks, including incorrect or incomplete testimony, poorly phrased answers (such as guesses or approximations), or creating an incorrect or incomplete record. Some jurisdictions allow answers like “I don’t know” to be used against the entity.[14]
- Preparation often requires that a witness interview others and review documents or relevant data to be able to fully answer questions. Counsel must encourage and facilitate this work, though client support is of paramount importance. Witnesses, and those assisting them, should follow through on investigating the noticed topics and seeking out additional documents, employees, and information as they are identified throughout the preparation process, so that the witness can provide complete answers on each topic with reasonable particularity.
- Proper preparation of a Rule 30 (b)(6) corporate representative requires that work begin as soon as topics are received, not the day or week before the deposition. A witness must thoroughly review data, meet with lawyers, and even hold several mock sessions in order to be adequately prepared. Often preparation must begin weeks or even months in advance of the actual deposition. Remember, the corporate designee is not as much speaking about the company; rather, the corporate designee is speaking for the company. Therefore, it is important the company put its best foot forward with the most knowledgeable and prepared witness on the topics in play.[15] The preparation required may be akin to that needed for an expert to properly review the case, investigate, and write an expert report.[16]
- Last but not least, counsel and clients defending a Rule 30 (b)(6) deposition should look at this deposition as far more than fending off questions and lodging objections. Instead, view this challenge as an opportunity. A properly prepared company witness who is on the mark can provide great support for pretrial motions such as summary judgment, improve a client’s standing in mediation, and send a message to opposing parties and counsel that you are prepared and you will prevail if forced to trial. Having that mindset to utilize this deposition as a sword and not only a shield can lead to a more engaged and better prepared witness, and a more successful outcome.
IV. Conclusion
A Rule 30(b)(6) deposition is a time- and resource-intensive process which is often a very burdensome and costly exercise. The current rule imposes conferral obligations on the parties but leaves other important issues unaddressed, including the absence of limits on the number of topics[17] as well as the sudden deadlines and disproportionate demands such a deposition can impose on a corporation.[18] Entities often avoid the hard yet necessary work to properly respond to a 30(b)(6) notice. Too often companies facing Rule 30 (b)(6) depositions cut corners to avoid expense or to avoid time burdens on their witnesses. Proper preparation and diligence will pay significant dividends in the long run.
Conversely, failure to avoid common pitfalls and adequately prepare deponents could plague an entity for years. Despite the significant challenges and burdens placed on entities subject to the Rule 30(b)(6) deposition notice, it is crucial that companies take necessary steps to prepare witnesses on all information known or reasonably available to the entity on the noticed topics, and when parties cannot agree to the questions or the scope or length of the deposition, to seek court intervention well before the deposition.
[1] This article focuses on the Federal rule; considerations presented herein may or may not translate to States’ varied procedural rules regarding depositions of entities.
[2] Fed. R. Civ. P. 30(b)(6).
[3] See E.E.O.C. v. Thorman & Wright Corp., 243 F.R.D. 421, 426 (D. Kan. 2007) (topics must be designated with “painstaking specificity” and relevant to the issues in dispute). While the issue of what’s “relevant” in discovery is beyond the scope of this article, relevance in the context of discovery is very broad, but not without limits. F.R.C.P. 26 (b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case…”).
[4] Fed. R. Civ. P. 30(b)(6).
[5] It is too soon to tell whether the duty to confer has made any significant impact on the frequency or severity of disputes regarding a 30(b)(6) deposition notice. Nevertheless, while parties may not resolve their disagreements over the deposition notice at the conference, this duty certainly increases communication among the parties and should narrow and clarify the dispute prior to seeking relief from the Court.
[6] While the entity is free to designate as many employees as it wishes to testify on various noticed topics, there are drawbacks to designating multiple witnesses to testify. First, doing so may increase the amount of time needed to prepare. Second, there is an opportunity for a disconnect between the witnesses based on the topics and materials reviewed by each. Third, although a Rule 30(b)(6) deposition is considered a single deposition for purposes of any discovery order or limit on the number of depositions available, each designated witness may be subject to individual time limits, prolonging the amount of time that the entity is subjected to questioning. See Infernal Technology, LLC v. Epic Games, Inc., 339 F.R.D. 226, 230 (E.D.N.C. 2021); see also Committee Note to 2000 Amendments, 192 F.R.D. 341, 395 (“For purposes of [the 7-hour limit on depositions], the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition. The presumptive duration may be extended, or otherwise altered, by agreement. Absent agreement, a court order is needed. The party seeking a court order to extend the examination, or otherwise alter the limitations, is expected to show good cause to justify such an order.”) But see E.E.O.C. v. The Vail Corp., No. 07-cv-02035-REB-KLM, 2008 WL 5104811, at *1 (D. Colo. Dec. 3, 2008) (court declined to adopt plaintiff’s claim to extend length of deposition as court noted a single, 7-hour deposition was conveyed at prior hearing and no evidence suggested deviating from that limit). Therefore, as with all other matters including the scope of questioning, the duration of the deposition should be the subject of conferrals especially if more than one witness will be offered to testify.
[7] Resolution Trust Corp. v. Southern Union Co., Inc. 985 F.2d 196, 197-98 (5th Cir. 1993); Peshlakai v. Ruiz, 2014 WL 459650 at *22 (D.N.M. 1/9/2014) (quoting Alexander v. FBI, 186 F.R.D. 137, 141 (D.D.C. 1998)).
[8] Resolution Trust Corp. supra; see also Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D. N.C. 1989); Alexander v. F.B.I., 186 F.R.D. 137, 141 (D.D.C. 1998); Wultz v. Bank of China Ltd., 298 F.R.D. 91, 99 (S.D.N.Y. 2014); Tamburri v. SunTrust Mortg. Inc., 2013 WL 1616106 (N.D. Cal. 4/15/13) (affirming depositions of multiple financial institutions with approximately 50 topics each); Krasney v. Nationwide Mut. Ins. Co., 2007 WL 4365677 (D. Conn. 12/11/07) (upholding the majority of forty topics noticed for a 30(b)(6) deposition).
[9] Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416 (5thCir. 2006) (citing Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135 (S.D.N.Y. 1997)); see also Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70 (D. Neb. 1995) and Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338 (N.D. Ill. 1995).
[10] Not only might an error, misstatement, or poor word choice follow the entity in future litigation, but a witness’s lack of knowledge can be just as problematic. Because the witness is testifying on behalf of the entity, including all information known or reasonably available to the entity, a witness who testifies to not knowing a relevant fact or document could be used to show that the entity does not know a piece of relevant and important information.
[11] Spinks v. Alamo Area Council of Governments, No. 5:15-CV-749-RP, 2016 WL 7442661, at *6 (W.D. Tex. Dec. 27, 2016); Function Media, L.L.C. v. Google, Inc., No. 2:07-CV-279-CE, 2010 WL 276093, at *3 (E.D. Tex. Jan. 15, 2010).
[12] 146 F.R.D. 401, 662.
[13] See supra note 6.
[14] See QBE Insurance Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 681-85 (S.D. Fla. 2012)(“It would be patently unfair to permit QBE to avoid providing a corporate deposition designee on certain topics (because its insured refuses to cooperate) yet allow it to take a position at trial on those very issues by introducing testimony which Defendant Jorda was unable to learn about during a pre-trial 30 (b)(6) deposition.” Court found answers including “I don’t know” would bind the company to that position later at trial); City of Las Cruces v. United States, 2021 WL 330062, at *5 (D.N.M. 2/1/21); but see Monopoly Hotel Group, LLC v. Hyatt Hotels Corp., 1:12-CV-1250-JEC-JSA, 2013 WL 12246988, at *6 (N.D. Ga., June 4, 2013) “(“The occasional ‘I don’t know’ in the context of this massively broad deposition does not itself reveal at Rule 30 (b)(6) violation, if the witness otherwise took reasonable steps to prepare.”).
[15] See Lapenna v. Upjohn Co., 110 F.R.D. 15, 20 (E.D. Pa. 1986)(company designee may be asked to testify about the corporation’s subjective opinions and beliefs).
[16] When possible, include Rule 30(b)(6) discussions in the Rule 26(f) conference at the outset of the litigation. This allows litigants to know in advance whether the other party will seek a Rule 30(b)(6) deposition and begin steps to identify information and witnesses for that purpose.
[17] Unlike interrogatories, requests for production and requests for admission, Rule 30 (b)(6) does not limit the number of “topics.” As noted above, the limits on the length of depositions (presumptively seven hours) and the requirement that topics be stated with “reasonable particularity” for now remain as the prime factors limiting the scope of these depositions.
[18] See Generally Comment to the Rule 30 (b)(6) Subcommittee of the Advisory Committee on Civil Rules, Lawyers For Civil Justice, July 5, 2017 (https://www.uscourts.gov/file/22273/download).
