Voice of the Corporation: The 30(b)(6) Witness

The volatility, malleability and dispersed nature of electronically stored information (ESI) have created new challenges to litigators trying to search, preserve, produce and authenticate information. So it's important to inquire about the steps a corporate defendant or plaintiff took to identify, preserve, collect and produce documents relevant to the litigation. To ensure that discovery was diligently completed in good faith, this requires detailed inquiry into a corporation's information management and retrieval systems. The 30(b)(6) witness is the target of this inquiry.

The 30(b)(6) witness's role is to testify not on the facts of the case, but on a company's operations, such as IT infrastructure or accounting practices. It is important to note that the 30(b)(6) witness's testimony represents the knowledge of the entity, not of the person being deposed. In the context of e-discovery, this witness is often called to testify on the steps the corporation took to find and produce responsive documents to ensure good faith discovery.

30(b)(6) Strategies

Whether you are the party requesting the witness or the one producing the witness, it is key to pre-plan a strategy around your actions. For parties producing the witness, selection and preparation of the witness is the linchpin that will determine success or failure of the outcome. Counsel should take great care in the preparation of each designated representative to ensure that he or she is fully prepared for the categories of inquiry contained in the notice, as well as any other relevant matters to the cause of action. Failure to prepare the corporation's designated representative fully could result in adverse testimony binding the corporation in the future.

Albert Barsocchini

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