what to do as soon as you get a 30(b)(6) notice of deposition
By Hayes Hunt and Joshua Red
In a world where the overwhelming bulk of cases never make it to trial, depositions take on outsized importance. They will almost certainly exist the only in-person testimony either party has the opportunity to elicit and the merely opportunity for alive cross-examination. That means every deposition requires careful preparation.
Corporations and other entities accept unique obligations regarding the depositions of corporate designees pursuant to Federal Rule of Civil Procedure 30(b)(6) and its land cognate, Pennsylvania Rule of Ceremonious Procedure 4007.1(due east). An entity must prepare a designated witness to respond its adversary's questions, and the designee's answers bind the entity in the litigation. Avoiding plush mistakes and discovery sanctions requires that both in-business firm and outside counsel for such entities take care to set up for such depositions and sympathize the rules that govern them.
Adversary's Responsibilities In Noticing Deposition
The entity's adversary has few obligations in noticing the deposition of a corporate designee. All
Rule 30(b)(6) requires is a notice directed to the entity that "depict[s] with reasonable particularity the matters for exam."
Notwithstanding this minimal obligation, some limits do be on the adversary's clarification of the matters for exam. The qualifier "including, just non limited to," or other linguistic communication indicating that the topics listed in the notice are not exclusive renders the discover overbroad and subject to a move to quash. (See, e.g., Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000).)
Instead, the adversary has an obligation to define the "outer limits" of the subject field matter of the degradation of the corporate designee. This limit exists to ensure that the entity is capable of designating a witness (or witnesses) who can testify about each of the topics listed, rather than facing the "impossible task" of designating a witness who can bear witness about all possible questions the adversary might ask.
Responsibilities Upon Receiving Rule thirty(b)(6) Notice
Upon receiving a Rule 30(b)(6) discover, a corporation must produce a witness (or witnesses) for deposition questioning by the adversary. The witness(es) must be capable of giving "consummate, knowledgeable and binding answers on behalf of the corporation" well-nigh each of the topics listed in the degradation detect, according to Marker v. Matrimony Fidelity Life Insurance, 125 F.R.D. 121, 126 (Chiliad.D.Northward.C. 1989).
Accordingly, the corporation besides incurs a duty to educate and ready its designees to testify about whatever matter outside the designee's personal cognition, which the Rule 30(b)(6) notice specifies. Failure to practice and then "is tantamount to a failure to announced, and warrants the imposition of sanctions," as in United Technologies Motor Systems 5. Borg-Warner Automotive, Ceremonious Action No. 97-71706, 1998 U.Southward. Dist. LEXIS 21837, at *4 (Due east.D. Mich. Sept. 4, 1998).
Who Tin The Corporation Designate?
An entity is not express to its own present employees as its corporate designees. Instead, Rule xxx(b)(vi) permits an entity to designate "officers, directors, or managing agents, or … other persons who consent to testify on its behalf."
In particular, where the relevant events take long since passed, a former employee may exist the virtually advisable corporate designee. In Beauperthuy v. 24 60 minutes Fitness USA, Case No. 06-715 SC, 2009 U.Southward. Dist. LEXIS 104906, at *17 due north.5 (Northward.D. Cal. Nov. 9, 2009), for case, the court held that "the text of Rule xxx(b)(6) leaves no incertitude that a former employee tin and should exist designated every bit a Rule xxx(b)(half-dozen) deponent, if the sometime employee is the well-nigh knowledgeable individual and as long equally the former employee consents."
Nor does Rule xxx(b)(6) limit proper designees to people employed by or otherwise affiliated
with the entity. Any "other person who consent[s]" to show on behalf of the entity and has the requisite knowledge and preparation may do and then.
What Questions Must The Corporate Designee Answer?
As with whatever other deposition witness, the corporate designee must bear witness about facts within his or her (or, in this case, the entity'due south) knowledge. But a corporate designee'south responsibilities go further; he or she must also reply questions about the entity's "subjective beliefs," "interpretation of documents and events," and "position" on any of the topics in the deposition notice, equally in United States five. Taylor, 166 F.R.D. at 361.
Some courts likewise permit the antagonist to ask questions across the scope of the topics in the degradation notice. Even where the court so permits, the answers of the designee are treated like those of any other fact witness and do non bind the entity, according to Detoy v. Metropolis & County of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000).
Other courts, such as in Paparelli v. Prudential Insurance Co. of America, 108 F.R.D. 727, 728-31 (D. Mass. 1985), take held that the adversary may not enquire questions beyond the topics listed in the Dominion 30(b)(six) observe. Simply counsel for the entity cannot enforce that limitation past instructing the designee not to answer the questions. Instead, the designee must answer the questions to the extent possible, and the adversary has no recourse if the witness disclaims cognition of matters outside the scope of the degradation notice.
What Is Effect Of Corporate Designee'southward Testimony?
Within the scope of the deposition notice, the designee's answers are the corporation's answers. That is not to say that the corporation may not later alter its answers or positions, but doing so will subject area its representatives to cross-test at trial. And the deposition testimony itself of the designee may exist open-door at trial as a prior inconsistent statement, a statement against involvement, or on another basis.
The same dominion applies "if a political party states information technology has no cognition or position every bit to a prepare of declared facts or expanse of inquiry at a Rule 30(b)(6) deposition." In that circumstance, "it cannot argue for a contrary position at trial without introducing evidence explaining the reasons for the modify."
The deposition of a corporate designee presents both risks and opportunities for a corporation or other entity involved in litigation. By understanding the rules that govern such depositions, both in-firm and outside counsel for entities tin use them to dandy effect while minimizing the risks to their client's litigation positions.
Originally published in The Legal Intelligencer on July sixteen, 2014.
Source: https://www.fromthesidebar.com/2014/07/22/30-b6-corporate-designee-depositions-what-you-need-to-know-4/