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Litigation: Handling corporate depositions with care

How to choose the best witness for a Rule 30(b)(6) deposition

Outside counsel sends you a notice of deposition served by your adversary that commands your company to appear for a deposition pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Such notices must include a list of topics on which the corporation is required to testify, which in a complex case, often include dozens of separate items over multiple pages.

Since the testimony given in a corporate deposition constitutes admissions of the party, you and your outside litigation counsel should carefully consider the person or persons who will appear on behalf of the corporation, and prepare carefully for these depositions. The failure to designate or prepare properly could doom the case, resulting in an adverse judgment or unfavorable settlement. Rule 30(b)(6) authorizes the deposition of business and governmental entities. The party serving the notice or subpoena “must describe with reasonable particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6). The recipient of the notice or subpoena “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” Id. More than one witness may be designated to testify, and the rule permits, but does not require, the organization to set out the matters on which each person is expected to testify. Importantly, the rule requires that each person identified as a deponent “must testify about information known or reasonably available to the organization” on those matters for which the person has been identified. Id

Added to the Federal Rules of Civil Procedure in 1970, Rule 30(b)(6) sought to streamline the process of obtaining corporate information by deposition and benefit the noticing party and the corporate deponent alike. For the party noticing the deposition, the rule attempts to remove uncertainty as to who was a “managing agent” and to eliminate the practice of multiple corporate deponents disclaiming knowledge of discoverable matters that are clearly known to the organization. See Fed. R. Civ. P. 30(b)(6) advisory committee’s note. The rule also benefits corporate deponents, however, by reducing multiple depositions of corporate officers and employees by parties uncertain of who in the corporation has relevant information. Id

In attempting to promote these goals, a deposition conducted pursuant to Rule 30(b)(6) is significantly different than the deposition of a witness under Rule 30(b)(1). Although a typical fact witness deponent is generally limited to testifying about matters known or reasonably perceived by the witness, a Rule 30(b)(6) deponent must testify regarding matters “known or reasonably available to the organization.” This vastly expands the universe of information to which an entity designee must testify. 

The expanded scope of the matters on which an entity deponent must testify requires investigation conducted by the witness, working in conjunction with inside counsel and litigation counsel. The deponent must review all relevant documents in the possession, custody or control of the entity (even if the witness himself has no first-hand knowledge of them) and speak with the corporate individuals with personal knowledge of the matters to satisfy the requirements of the rule.

The need for careful investigation and preparation is obvious given that the witness’ answers will be admissions of the party. And while the answer “I don’t know” is generally acceptable for a fact witness deponent, an “I don’t know” from a corporate designated witness becomes the official position of the party, subject to impeachment if the party develops a position between the deposition and trial. 

One benefit of preparing a corporate designee to testify is that the witness is the embodiment of the client. As a result, conversations between the witness and counsel in preparation for the deposition are covered by the attorney-client privilege. That said, the designated witness must not be placed in a position where the sole source of the information to which the witness is testifying turns out to be counsel, as that jeopardizes the assertion of privilege and calls into question the adequacy of the pre-deposition investigation. 

Importantly, and contrary to a common misconception, a witness designated under this rule need not be the “most knowledgeable person” with regard to a particular subject matter. The most knowledgeable person is likely, however, to be identified during the deposition (and in prior initial disclosures and answers to interrogatories), and he may be noticed for a deposition as well. 

Given these considerations, corporations must take care when selecting witnesses. The more information a witness possesses about a particular topic, the less time is likely to be taken investigating that topic and preparing for the deposition. On the other hand, if the person with personal knowledge of a topic is not likely to make a particularly effective witness, another corporate employee or representative might be a better choice for the Rule 30(b)(6) deposition.

And while it is tempting to pick senior officials with responsibility over a wide range of matters, witnesses need to have the time and willingness to conduct the investigation and participate in the preparation required to fulfill the corporation’s obligations under the rule. 

Other issues connected with Rule 30(b)(6) depositions involve time limits. Depositions of fact witnesses are generally limited in duration to one day of seven hours. Fed. R. Civ. P. 26(d)(1). That limitation is often impractical, however, when applied to a Rule 30(b)(6) deposition involving multiple designees and topics. It would, for example, be patently unreasonable for a deposing party to have seven hours per topic in connection with a deposition notice covering multiple topics.

By the same token, it would be similarly unreasonable to require a party in complex litigation to complete a Rule 30(b)(6) deposition involving multiple topics and witnesses in one day of seven hours. In these instances, counsel must work out reasonable limits or seek the assistance of the court in doing so by motion or conference. 

Moreover, designated witnesses with relevant personal knowledge implicate similar issues of timing and scope. Counsel representing such witnesses must make it clear on the record when the witness is testifying as to personal knowledge and when the witness is testifying as a corporate designee. Best practice often dictates one deposition of the witness in his or her individual capacity under Rule 30(b)(1) and another of the witness as a corporate representative under Rule 30(b)(6), although issues of efficiency and demands on the witness’ time may make this undesirable. 

It is often said that cases are seldom won at deposition but can be lost at deposition. Carelessness in selecting corporate witnesses to testify at Rule 30(b)(6) depositions or failure to conduct a thorough investigation or to prepare the witness properly can bring the second scenario into play, and minimize or ruin the chances of a successful outcome to the litigation. 

Contributing Author

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Paul M. Honigberg

Paul Honigberg is a partner in Blank Rome’s litigation practice. He has more than 30 years of experience litigating a variety of complex civil cases...

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