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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

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. 

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.

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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