In-house counsel should never underestimate the importance of selecting and preparing the appropriate representative, or representatives, to respond to deposition requests noticed under Federal Rule of Civil Procedure 30(b)(6) or corresponding state procedure rules. Improper selection or inadequate preparation could result in adverse, binding admissions, privilege waiver or sanctions.
Exposing Myths and Rule Breakdown
Some myths have emerged regarding a corporate entity’s requirements to produce a knowledgeable representative for deposition. It is incorrect that Rule 30(b)(6) requires production of the “most knowledgeable” representative. It is equally untrue that the rule requires the corporate representative to have “personal knowledge” of the topics identified in the Rule 30(b)(b) notice. Despite these untruths, many notices of deposition improperly demand production of these witnesses.
In-house counsel should, from time to time, breakdown Rule 30(b)(6) to counter these myths and produce the most appropriate representative(s). Counsel should first examine the Notice of Deposition to ensure that it complies with the Rule’s language and to object to noncompliant notices. For example, if the Notice demands production of a corporate representative with “personal knowledge” of an itemized list of topics, or the person “most knowledgeable” about the topics, then counsel should object, in writing, to the Notice. Similarly, if the Notice of Deposition outlines a vague topic list and does not describe the topics with “reasonable particularity,” then counsel should assert an objection. Counsel should assert the objections well before the deposition date or risk waiving the objections and incurring sanctions.
The corporate entity’s duty under Rule 30(b)(6) is to designate an appropriate representative to provide deposition testimony on the entity’s behalf. The entity may produce more than one representative, having different representatives designated for different deposition topics. The entity may offer an officer, director or managing agent; but it may also offer persons outside the corporate structure if these persons consent to providing testimony. So, for example, a retired employee or an outside consulting expert may, under the circumstances, serve as the optimal corporate representative. The chosen representative(s) must testify about information known by the organization—not necessarily the representative—or that is “reasonably available to the organization.”
Duties and Responsibilities
The Rule effectively imposes a duty of “due inquiry,” meaning that the corporate entity must gather reasonably available information to educate the testifying representative(s). This requires the entity, preferably working at the direction of in-house counsel, to search and review files, conduct interviews of employees with personal knowledge about a given topic, and otherwise become a representative duly informed about the topics identified in the deposition notice. In essence, in-house counsel should ensure that the chosen representative(s) are appropriate spokespersons for the organization and can provide complete, knowledgeable and nonevasive answers.
In-house counsel should refrain from the initial reaction to identify and produce representative(s) with the most knowledge about the list of topics. Of course, these representatives may be optimal, but that is not always the case. Counsel should think in terms of producing a company spokesman, and should look for a representative who is coachable and has the time and dedication to educate herself about the topics, interview company employees with personal knowledge on certain topics, review documents, and meet with in-house and outside counsel to thoroughly prepare. The selected representative should have a good demeanor and appearance, and ideally have some familiarity with the deposition testifying process.
Selecting appropriate representatives is only half the battle; in-house and outside counsel must diligently prepare them. The selection and preparation process should begin when litigation is anticipated and certainly by the time suit is filed. Waiting until receipt of the deposition notice greatly decreases the chances of identifying a company spokesman who has the time to prepare, and increases the chances of noncompliance with the Rule’s requirements.
Counsel should assist the chosen representative(s) in locating and reviewing the appropriate documents and being able to identify from whom or where he learned responsive information. And it is imperative that the representative(s) become familiar with any evidentiary privileges in-house counsel plans to assert. Counsel should prepare the representative(s) to understand what preparation sessions are privileged and which are not, and to understand that discussing privileged communications may result in privilege waiver. For example, the representative’s discussions with other employees to prepare for the deposition likely are not privileged, while his discussions with in-house lawyers about those conversations likely are privileged. Even the most astute corporate representatives often misunderstand the contours of the attorney–client privilege, and thorough preparation on this topic is essential.
In summary, selecting and preparing corporate representatives for the organization’s Rule 30(b)(6) deposition is a critical part of the litigation process, and the following practice tips, along with the substance provided above, should be useful:
- Begin identifying and preparing a corporate representative when litigation is anticipated and certainly by the time suit is filed; waiting until receipt of the deposition notice will result in deficiencies.
- Examine the Notice of Deposition and promptly object to notices that do not follow the Rule’s dictates; the failure to assert objections ahead of the deposition could result in waiver or sanctions.
- Watch out for Notices containing requirements of persons with “personal knowledge” or who are the “most knowledgeable” about the identified topics; this is not what is required.
- Ensure that the deposition topics are identified with “reasonable particularity” and, if not, address these inadequacies ahead of the deposition.
- Select a representative who has the demeanor and appearance to serve as a good spokesman; remember that the requesting party may videotape the deposition and play it before the jury.
- In-house counsel, working with outside counsel, should control the selection and preparation process and determine to whom, where, and in whose presence the representative should talk as part of the preparation process.
Prepare the corporate representative(s) for questions that may elicit privileged communications; as part of the preparation process, the Rule 30(b)(6) witness will necessarily have privileged and non-privileged discussions, and he should be aware of the difference.