5TH ANNUAL LABOR AND EMPLOYMENT LAW CONFERENCE SECTION OF LABOR AND EMPLOYMENT LAW

AMERICAN BAR ASSOCIATION

Seattle, Washington November 2011

Rule 30(b)(6) Depositions In Employment Discrimination Actions

ROBERTA L. STEELE GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

300 Lakeside Dr., #1000 Oakland, California 94612

510-763-9800 rls@gdblegal.com www.gdblegal.com

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I. FEDERAL RULE OF CIVIL PROCEDURE 30(b)(6)

A. RULE 30(b)(6)

(b) Notice of Examination: General Requirements; Method of Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone.

(6) A party may in the party’s notice and in a subpoena name as the deponent

a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

B. GENERAL PRINCIPLES

• Rule 30(b)(6) was added to the Federal Rules in 1970. • Rule 30(b)(6) permits a party to take the deposition of a corporation or

organization simply by naming the entity as the deponent in the notice of deposition or subpoena.

• Prior to the addition of Rule 30(b)(6) in 1970, if a party wanted to take the

deposition of a corporation, the deposing party had to identify the official who would be deposed on behalf of the corporation.

• The Rule has three purposes –

To reduce the difficulty of determining in advance of the deposition

whether a particular employee was a managing agent. To curb “bandying” by which corporate employees each disclaim

knowledge of facts known to the corporation. To protect the corporation by eliminating unnecessary and unproductive

depositions.

Protective National Ins. Co. v. Commonwealth Ins., 137 F.R.D. 267, 278 (D. Neb. 1989), citing Advisory Committee Notes to 1970 Amendments of Federal Rules.

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• Rule 30(b)(6) was intended to streamline the discovery process. McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 79 (D.D.C. 1999).

• Rule 30(b)(6) applies to partnerships and joint ventures. Starlight Int’l, Inc. v.

Herlihy, 186 F.R.D. 626, 638 (D. Kan. 1999).

• Rule 30(b)(6) applies to pension trust fund. Taylor v. Shaw, 2007 WL 710186 *2 (D. Nev. 2007).

• Rule 30(b)(6) applies to domestic and foreign corporations and United States and

foreign governmental entities. McKesson, 185 F.R.D. at 79-80; see also Rubin v. Islamic Republic of Iran, 2007 WL 2219105 (N.D. Ill. 2007) *6.

• A Rule 30(b)(6) deposition may be used by an adverse party for any purpose

consistent with the rules of evidence in court proceedings. Fed.R.Civ.P. 32(a). • Also check local court and chambers rules for guidance.

C. LIMITS ON NUMBER OF DEPOSITIONS

• There are no restrictions on the number of 30(b)(6) depositions that may be taken other than the general limitation of 10 depositions per side in Rule 30(a)(2)(A).

• If the corporation designates multiple individuals to testify in response to a Rule

30(b)(6) deposition notice, it is counted as a single deposition for purposes of the limit on the number of depositions a party is permitted to take in the litigation. Quality Aero Technology v. Telemetrie Elektronik, 212 F.R.D. 313, 319 (E.D.N.C. 2002).

• Some courts have held that Fed.R.Civ.P. 30(a)(2)(A), which requires leave of

court to take a second deposition of a previously deposed witness, applies to entities deposed under Rule 30(b)(6). Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d 189, 192 (1st Cir. 2001); see also Motoi v. Bristol Group, Inc., 2007 WL 30604 (E.D. Ky. 2007) *2 (allowing leave to take second deposition of 30(b)(6) witness due to late produced documents, but limiting time to 4 hours maximum); In re Sulfuric Acid Antitrust Litigation, 2005 WL 1994105 (N.D. Ill. 2005) (quashing second Rule 30(b)(6) notice on different topics than first notice, because leave of court was not obtained).

• Other courts have found that Fed.R.Civ.P. 30(a)(2)(A) does not apply to 30(b)(6)

depositions. Cornell Research Foundation, Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. 2006) *6 n.6 (noting that Rule 30(a)(2)(A) does not preclude taking of a second deposition from a corporation or similar entity, as opposed to a single person); Quality Areo, 212 F.R.D. at 319 (stating that leave of court is not required to take a deposition pursuant to a second Rule 30(b)(6) notice on different topics).

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• Rule 30 also permits taking the deposition of the same witness in his individual

capacity and in an organizational capacity, because the depositions serve distinct purposes and impose different obligations. Shaw, 2007 WL 710186 *2; Williams v. Sprint/United Management Co., 2006 WL 334643 (D. Kan. 2006); AG-Innovations, Inc. v. U.S., 82 Fed.Cl. 69, 81 (Fed.Cl. 2008).

• Prior deposition testimony from individual fact witness does not relieve an

organization from designating a witness in response to a Rule 30(b)(6) notice. Shaw, 2007 WL 710186 *3.

D. LIMITS ON DURATION

• Some courts have held that the durational time limit of one day of seven hours per deposition established by Rule 30(d)(2) does not apply to 30(b)(6) depositions. Heartland Surgical Specialty Hosp. v. Midwest Division, Inc., 2007 WL 1054279 (D. Kan. 2007) *1 (allowing 11 deposition hours over 2 days for topics 1-17 and 24 hours over 4 days for topics 18-55); McDougal-Wilson v. Goodyear Tire and Rubber Co., 232 F.R.D. 246, 249 (E.D.N.C. 2005) (finding that 8 hours was ample time for plaintiff to conduct 30(b)(6) deposition); Quality Aero, 212 F.R.D. at 319 (stating that there are no restrictions on the amount of time that may be used to take a 30(b)(6) deposition); Calzaturficio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 35 (D. Mass. 2001) (noting that two designee deponents had been deposed for total of 37 hours); Advisory Committee Notes to 2000 Amendments of Federal Rules (“For purposes of this durational time limit, each person designated under Rule 30(b)(6) should be considered a separate deposition.”).

• Other courts have held that the durational time limit applies to 30(b)(6)

depositions, but will be extended in appropriate circumstances. Security Ins. Co. of Hartford v. Trademark Ins. Co., 218 F.R.D. 29, 32 (D. Conn. 2003) (denying request for additional time, beyond seven hour limit, to depose 30(b)(6) witness, because based on review of deposition notice and transcript it was not apparent that more time was required); Dunkin Donuts, Inc. v. Mary’s Donuts, Inc., 206 F.R.D. 518, 522 (S.D. Fla. 2002) (allowing 14 hour examination of 30(b)(6) deponent due to complexity of deposition).

• When one witness is deposed pursuant to an individual deposition notice and later

produced as a corporate designee pursuant to 30(b)(6), each deposition is presumptively subject to independent seven hour time limits. Sabre v. First Dominion Capital, 2001 WL 1590544 * 1 (S.D.N.Y. Dec. 12, 2001).

E. PLACE OF DEPOSITION

• The general rule is that the deposition will take place at the corporation’s principal place of business. Sugarhill v. Motown, 105 F.R.D. 166, 171 (S.D.N.Y.

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1985); see also McDougal-Wilson, 232 F.R.D. at 249 (finding that plaintiff failed to overcome presumption that the deposition of a corporation should take place at the corporation’s principal place of business).

• This is a presumption is merely a decision rule that facilitates determination when

other relevant factors such as cost, convenience and litigation efficiency do not favor one side over the other. It is a presumption that is often more honored in the breach than in the observance. Court allowed telephone deposition of 30(b)(6) witness because other party would not be prejudiced. Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 390 (S.D.N.Y. 2011).

• Deposition of defendant corporation must be held at its principal place of business

in Amman, Jordan where former employee filed qui tam action. U.S. ex rel. Barko v. Halliburton Co., 270 F.R.D. 26, 29 (D.D.C. 2010).

• The court may, in its discretion, order that the deposition be held in another

location when convenience or the interests of justice require, such as when the deponent is a foreign corporation doing business in the United States. In re Vitamins Antitrust Litigation, 2001 U.S. Dist. LEXIS 24025 *32 (D.D.C. 2001) (ordering depositions to be conducted in Washington, D.C. instead of Germany, France and Japan); In re Honda, 168 F.R.D. 535, 539 (D. Md. 1996) (ordering that deposition be held in Baltimore rather than Japan); but see ICE Corp. v. Hamilton Sundstrand Corp., 2007 WL 1500311 (D. Kan. 2007) (stating that to hold that it is always more cost effective and convenient to have foreign corporate 30(b)(6) witnesses deposed in the US would eviscerate the general presumption regarding the place for taking such depositions).

• Some courts have ordered both parties to bear the cost of transporting the witness

to another location when the deposition will not be held at corporation’s place of business. GFSI, Inc. v. J-Loong Trading, Ltd., 2006 WL 2403103 (D. Kan. 2006) (finding that factors of cost, convenience and efficiency weighed in favor of holding deposition in Kansas City, Missouri of corporation headquartered in Hong Kong and ordering both parties bear costs of bringing corporate representatives to US); Cadent Ltd. v. 3M Unitek Corp., 2005 WL 2850103 * 4 (C.D. Cal. 2005) (ordering Israeli corporation to produce 30(b)(6) witnesses in Los Angeles where suit was filed, but partially shifted travel costs to noticing party).

F. RULE 30(B)(6) NOTICE OF DEPOSITION

• The notice must meet the requirements of Rules 30(b)(1) and (2) by providing the date, time, and place of the deposition, designate any materials to be produced at the deposition, and the manner of recording.

• The notice of deposition also must describe with reasonable particularity the

subject matter(s) on which the examination will be conducted.

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1. Specificity Required

• “To allow the Rule to effectively function, the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.” EEOC v. Thorman & Wright Corp., 243 F.R.D. 421, 426 (D. Kan. 2007); Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000).

A notice of deposition that identified claims processing, claims records,

and general file keeping, storage and retrieval systems was held to be sufficiently specific to require compliance by defendant. Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 125-26 (M.D.N.C. 1989).

Description of subject matter was considered to be sufficient where the

notice contained a general description of subject matter and counsel also sent a letter specifically identifying seven areas of expected testimony. Alexander v. Federal Bureau of Investigation, 186 F.R.D. 137, 141 (D.D.C. 1998).

Where the notice described a deposition topic as: “The sum and substance

of all conversations between Ann Harkins and any employee of [defendant] concerning [plaintiff] from January 1, 2002 and March 20, 2002” the court found the request to be “absurdly overbroad; conversations about [plaintiff’s] hair style or his new suit cannot possible be relevant to this lawsuit.” Banks v. Office of the Senate, 222 F.R.D. 7, 18-19 (D.D.C. 2004).

Informal requests made in a letter from opposing counsel, stating its desire

to discover why various documents had not been previously produced, did not constitute a sufficient notice of deposition under Rule 30(b)(6). Bank of New York v. Meridien Baio Bank Tanzania, Ltd., 171 F.R.D. 135, 145-146 (S.D.N.Y. 1997).

Notice of deposition that stated examination would “include but not be

limited to” areas specifically enumerated was overbroad because it subjected the noticed party to an impossible task. If the deposing party cannot identify the outer limits of the areas of inquiry, compliance with the notice is not feasible. Innomed Labs v. Alza Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002); Reed v. Nellcor Puritan Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000).

2. No Limits on Number of Topics

• There are no restrictions on the number of subjects that may be identified and designated for examination in a 30(b)(6) notice. Heartland Surgical, 2007 WL 1054279 at *1 (notice identified 55 separate topics, which court split into two

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depositions); Quair v. Bega, 388 F. Supp. 2d 1145, 1147 (E.D. Cal. 2005) (notice identified seven topics); Banks, 222 F.R.D. at 18 (notice listed 35 topics); Bregman v. District of Columbia, 182 F.R.D. 352, 354 (D.D.C. 1998) (notice identified six specific areas); Federal Deposit Ins. Corp. v. Butcher, 116 F.R.D. 196, 197-98 (E.D. Tenn. 1986) (notice identified at least 12 subjects).

3. Subpoena

• While a notice of deposition is sufficient to compel the deposition of a corporate party, a subpoena is necessary if the corporation is a non-party. Cates v. LTV Aerospace Corp., 480 F.2d 620 (5th Cir. 1973).

The deposing party must identify with reasonable particularity the subjects

on which examination is requested in both the notice of deposition and the subpoena.

The subpoena also must advise the corporation of its duty to designate

someone to testify for it. The territorial limits of Rule 45 are applicable to the 30(b)(6) deposition

subpoena. Fed.R.Civ.P. 45. G. CORPORATION’S DUTY TO DESIGNATE AND PREPARE PERSON(S) TO TESTIFY

1. Duty to Designate

• It is the duty of the corporation to designate one or more officers, directors, managing agents, or other persons to testify about the matter(s) described in the notice of deposition.

The burden is on the corporation to decide who will speak for it, but this

burden is no greater than the other discovery burdens placed on parties in litigation. “This burden is not essentially different from that of answering interrogatories under Rule 33, and is in any case lighter than that of an examining party ignorant of who in the corporation has knowledge.” Advisory Committee Notes to 1970 Amendments of Federal Rules.

• It is the responsibility of the corporation to undertake a “diligent inquiry” to

decide “who” is best suited to testify about the subjects identified in the notice. Poole v. Textron, Inc., 192 F.R.D. 494 (D. Md. 2000).

• The corporation must designate as many witnesses as necessary to respond to the

relevant areas of inquiry specified by the deposing party in the notice of deposition. Alexander, 186 F.R.D. at 141.

• The person(s) designated must be able to testify about matters known or

reasonably available to the corporation.

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The corporation must make a conscientious, good-faith endeavor to

designate persons who have knowledge of the subject matters noticed. Dey, L.P. v. Eon Labs, Inc., 2005 WL 3578120 * 6 (C.D. Cal. 2005); Protective National Ins., 137 F.R.D. at 278.

However, first hand or personal knowledge of facts by deponent is not

required. PPM Finance, Inc. v. Norandal USA, Inc., 297 F. Supp.2d 1072, 1085-86 (N.D. Ill. 2004) (“A Rule 30(b)(6) witness, however, need not have personal knowledge of the facts to which he testifies, because he testifies as to the corporation’s position on the matters set forth in the Rule 30(b)(6) [notice], not his personal opinion.”); Nellcor Puritan, 193 F.R.D. at 692; Securities and Exchange Comm. v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992).

• The corporation must provide the name and position of the deponent it will

produce in advance of the deposition to allow the deposing party to prepare for the deposition. Coleman v. Blockbuster, Inc. v. Blockbuster, Inc., 238 F.R.D. 167, 171 (E.D. Pa. 2006).

• Corporation cannot refuse to designate witness by responding that no one is

available who has personal knowledge on topics in the deposition notice. ICE Corp., 2007 WL 1500311 at *3; Dipsea v. Home Depot, 245 F.R.D. 53, 55 (D. Mass. 2007).

• Rule 30(b)(6) does not permit the noticing party to designate the deponent who

will testify on behalf of the corporation. It is up to the company to decide who will be its 30(b)(6) witness. Booker v. Massachusetts Dept. of Public Health, 246 F.R.D. 387; Dillman v. Indiana Ins. Co., 2007 WL 437730 (W.D. Ky. 2007) *1

2. Duty to Prepare

• The corporation has an affirmative duty to prepare its designated deponents so that they can respond to questions fully and completely.

• The corporation must prepare the witness to testify about matters not only known

to him or her, but also about those matters that should be known by the corporation. Alexander, 186 F.R.D. at 141. This is to prevent “sandbagging” of an opponent by conducting a half-hearted inquiry before the deposition and a more thorough and vigorous one prior to trial. United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C. 1996).

• The corporation’s designee must be prepared to testify to the extent information is

reasonably available, whether from documents, past employees, or other sources. Preparation was found lacking where deponent could not even testify about

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purpose or intended scope of the deposition. Bank of New York, 171 F.R.D. at 150-51.

• The fact that corporation no longer employed any person with knowledge of the

events at issue in the lawsuit or such persons were now deceased did not relieve the corporation of its obligation to prepare a designee for deposition to the extent that information about the events is available from other sources. Taylor, 166 F.R.D. at 361-62.

• Designee must be able to testify about facts within the corporation’s knowledge as

well as its subjective beliefs and opinions. The corporation must provide its interpretation of documents and events. Taylor, 166 F.R.D. at 361.

• Information from corporate affiliate was reasonably available to defendant in the

ordinary course of business and corporate designee thus was require to familiarize himself regarding relevant activities performance by the related entity, where both the defendant and affiliate had acted together to seek FDA approval of drug at issue in lawsuit. Sanofi-Aventis v. Sandoz, Inc., 272 R.D.R. 391, 395-96 (D.N.J. 2011); Ethypharm S.A. France v. Abbott Labs, 271 F.R.D. 82, 93 (D.Del. 2010).

• Court found that it was obvious that designated deponent either did not

understand or deliberately disregarded obligations. For example, in response to one question, deponent responded, “[A]sk the company, I’ll go get you a business card and you can talk to that.” Fabiano, 201 F.R.D. at 37 n.5.

• The corporation was required to prepare the witness despite the difficulty

involved in investigating the subject matter. Defendant bank was ordered to produce a witness prepared to testify about its underwriting policies and practices over a three year period even though it objected that this was a difficult and time-consuming task. Buck-Roberson v. Citibank Federal Savings Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995).

• Designee of defendant yacht club was required to review documents embodying

all matters known or reasonably available regarding membership applications and decisions. The fact that documentation was voluminous and different people affiliated with the club held this information did not absolve defendant from its responsibility to produce a witness who can provide information within the club’s knowledge or reasonably available to it. Concerned Citizens of Belle Haven v. Belle Haven Club, 223 F.R.D. 39, 43 (D. Conn. 2004).

• Designated deponents had affirmative obligation to educate themselves as to the

matters regarding the corporation. The court found that deponents were not properly prepared, because they reviewed almost no company records or correspondence prior to being deposed. The requirement to review documents reasonably available to the organization included obtaining tax returns and related documents in the possession of the company’s outside accountant. Court noted,

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however, that obligation imposed by Rule 30(b)(6) is not infinite. If deponents reviewed the tax records and still could not give complete answers with regard to operating losses, and there were no other available witnesses who could provide such testimony, then corporation’s obligations ceased. Fabiano, 201 F.R.D. at 36-39.

• The corporation was obligated to prepare the witness to testify about the facts and

admissions contained in governmental submissions, regardless of whether the facts were memorialized in work product documents or resided in the minds of counsel. The designated corporate deponent was inadequately educated and did not have full knowledge of facts contained in documents prepared by counsel and submitted to the government. The court noted that defendant waited until the last minute to prepare the deponent and devoted no more than a morning to the effort. Counsel did nothing to inform the deponent about the factual bases of the governmental submissions. In re Vitamins Antitrust Lit., 216 F.R.D. 168, 172-73 (D.D.C. 2003).

• “It strains credulity to state that a deponent who can only testify as to the

mechanical process for creating training materials fulfills the obligation to produce someone knowledgeable about designing training materials.” Satchell v. FedEx Express, 2006 WL 2884318 *10 (N.D. Cal. 2006).

• The company did not produce knowledgeable prepared witness, where witness

testified he had not prepared at all for deposition; had not reviewed any patents involved in the lawsuit; and could not describe the operation of any covered invention. Sprint Communications Co. v. Vonage Holdings Corp., 2007 WL 2333356 (D. Kan. 2007).

• The fact that the deponent stated numerous times in response to questions that the

answer was known by someone else at the company, indicated that the company had other persons available who could have been used as additional 30(b)(6) witnesses. It also indicates that the witness was not adequately prepared to provide testimony about the identified topics. Heartland Surgical, 2007 WL 1054279 at *6.

• The responding party must prepare deponents by having them review prior fact

witness deposition testimony, documents and deposition exhibits. The fact that this could be onerous to the corporate party makes little difference. This burden is justified because a corporation can only act through its employees. The Rule negates any possibility that the inquiring party will be directed from one witness to another, vainly searching for someone who could provide a response that would be binding on the corporation. ICE Corp., 2007 WL 1500311 at *3-4.

• The corporation properly prepared witness to give complete, knowledgeable, and

binding answers on the topics for which he was the corporate designee. It was sufficient that witness had been provided with data on the spreadsheet relating to

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the company’s financial condition. It was not necessary for witness to have personal knowledge of data or to have personally prepared the spreadsheet. PPM Finance, 297 F. Supp.2d at 1086.

3. Duty to Redesignate

• If, during the deposition, it becomes clear that the designated witness is not able to testify about the matters specified in the notice of deposition, the corporation must immediately designate and prepare another individual who can provide the requested testimony. Dey, 2005 WL 3578120 at * 6; Arctic Cat, Inc. v. Injection Research Specialists, Inc., 210 F.R.D. 680, 683 (D. Minn. 2002); Marker, 125 F.R.D. at 126; Butcher, 116 F.R.D. at 199.

• A 30(b)(6) deposition is not a memory test, however. Where the deponent

testified knowledgeably about a wide array, but not all, subjects, the court did not find that the importance or number of unanswered questions warranted the taking of additional depositions. The court ordered plaintiffs to submit the unanswered deposition questions to defendant in the form of interrogatories and requests for production of documents. Alexander, 186 F.R.D. at 142-43.

• Court ordered further questioning of corporate representative through deposition

upon written questions, rather than oral questioning, to allow plaintiff to discover facts forming basis of defendant's damage claims and affirmative defenses. Because work-product objections to questions in prior oral deposition were likely to continue, deposition upon written questions would be more convenient, less burdensome, and less expensive. This also would allow court to hear and decide any objections to questions before written answers were provided and to rule on any complaints that answers were not responsive. Fidelity Mgt & Research Co. v. Actuate Corp., --- F.R.D. ---, 2011 WL 2550390 (D.Mass. 2011).

• Plaintiffs in a product liability action regarding a front-end loader manufactured

30 years earlier were not allowed to compel the deposition of another corporate designee. The court found that defendant’s designation of the then-manager of the design team was sufficient even though the passage of time had caused his memory to fade. Given the age of the machine, it could be anticipated that certain information concerning it would be unavailable. Barron v. Caterpillar, Inc., 168 F.R.D. 175, 177-78 (E.D. Pa. 1996).

• Although designated deponent was largely unresponsive, the deposing party,

made a tactical decision by not insisting that a better witness be produced before the close of discovery. The court noted that such a request would have been favorably viewed. However, plaintiffs waited until after the close of discovery and the midst of summary judgment briefing to raise their objections to the 30(b)(6) deponent produced. Thus, court would not “belatedly punish” defendants by striking the affidavit of another witness or reopening discovery. Gutierrez v. AT&T Broadband, 382 F.3d 725, 733 (7th Cir. 2004).

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H. PROTECTIVE ORDERS

• A corporation does not have a right to refuse to designate someone with knowledge. If it objects to the requested deposition, it must seek a protective order pursuant to Fed.R.Civ.P. 26(c). E.E.O.C. v. Thurston Motor Lines, Inc., 124 F.R.D. 110, 114-15 (C.D.N.C. 1989).

• If a corporation is unable to designate an individual to comply with a Rule

30(b)(6) request, it must also seek a protective order. • Court granted defendant’s motion for a protective order in a highly technical case

where the plaintiff noticed a 30(b)(6) deposition seeking the basis for defendant’s defenses. The court found that it was impossible for any human being to accurately set forth in detail every piece of evidence supporting the positions that the company was taking in the litigation. McCormick v. Teledyne, 234 F.R.D. 275 (N.D. Cal. 1991).

• Court granted defendant’s motion for a protective order in an environmental

clean-up action because plaintiff’s 30(b)(6) notice sought irrelevant confidential settlement information and confidential communications covered by the attorney-client privilege. New York v. Solvent Chemical Co., 214 F.R.D. 106, 110-12 (W.D.N.Y. 2003).

• Court granted motion for a protective order in a civil fraud enforcement action

brought by the SEC. Defendant served a 30(b)(6) notice on SEC to produce witness to testify about the results of its early investigation, which was conducted by and at the direction of its attorneys. The court found that the 30(b)(6) notice was an inappropriate attempt to depose opposing counsel and delve into theories and opinions of SEC attorneys. Securities and Exchange Comm. v. Buntrock, 217 F.R.D. 441, 444 (N.D. Ill. 2003).

• Court refused to grant protective order, finding that attorney-client privilege and

work product doctrine did not preclude questioning regarding factual bases of defendant’s position statements in EEOC charges and for affirmative defenses in lawsuit. EEOC v. Ceasars Entertainment, Inc., 237 F.R.D. 428, 434 (D. Nev. 2006).

• Court granted motion for protective order where defendant sought to take

deposition of corporation owned by plaintiffs relating to e-mail and other communications. Court found that corporation could have no more information about liability and damages for molestation than did plaintiffs themselves who had already produced 400 pages of e-mails including e-mails from their corporate accounts. The requested deposition was cumulative and duplicative, unduly burdensome and harassing. Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th Cir. 2004).

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• Court denied motion for protective order because did not believe it should fashion

a rule precluding contention questions at 30(b)(6) deposition and noting that courts have split whether to allow parties to use 30(b)(6) depositions to explore facts underlying legal claims and theories. Radian Asset Assur., Inc. v. Coll. of the Christian Bros. of New Mexico, 273 F.R.D. 689, 691-92 (D.N.M. 2011)

I. MOTIONS TO COMPEL AND SANCTIONS

• The deposing party may move to compel, pursuant to Fed.R.Civ.P. 37(a)(3), if the noticed party refuses to produce a 30(b)(6) witness or produces one who is not prepared to testify on the topics identified in the notice.

• Additionally, Rule 37(b)(2)(A) provides for harsh sanctions for failing to comply with an order compelling testimony from a 30(b)(6) witness including that (i) matters covered by the order be taken as established; (ii) prohibiting disobedient party from supporting or opposing designated claims or defenses; (iii) striking pleadings in whole or part; (iv) staying proceedings until order is obeyed; (v) dismissing action in whole or party; (vi) issuing default judgment; or (v) issuing contempt order.

1. Failure to Produce

• Party who refused to designate witness for any noticed topic was ordered to produce for deposition one or more corporate witnesses that satisfy requirements of Rule 30(b)(6). Jurimex Kommerz Transit GMBH v. Case Corp., 2005 WL 440621 * 3 (D. Del. 2005).

• Sanctions, pursuant to Fed.R.Civ.P. 37, are proper when the corporation fails to designate and produce a person to testify on its behalf. Resolution Trust Co. v. Southern Union Co., 985 F.2d 196, 197 (5th Cir. 1993).

• Failure to designate a witness able to testify about the matters identified in a

30(b)(6) notice of deposition violates the unequivocal command of the Rule and falls within the spirit of Rule 37(d), which permits sanctions for failure to appear at a deposition, and thus provides authority for sanctions for failure to comply with a 30(b)(6) notice. Bregman, 182 F.R.D. at 355.

• Failure to designate and produce a Rule 30(b)(6) witness after proper notice and

to request a protective order will not be tolerated and warranted imposition of sanctions under Rule 37. Thurston, 124 F.R.D. at 115.

• Court imposed monetary sanctions because defendant failed to produce 30(b)(6)

witness for deposition. Court refused, as a sanction, to enter a default judgment, deem the allegations in the complaint established as a matter of law, or strike affirmative defenses, stating that it could not impose such harsh sanctions as mere

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penalties and noting that a court’s use of sanctions must be tempered by due process. EEOC v. Lockheed Martin, 2007 WL 1521252 (D. Hawaii 2007).

• The trial court did not abuse its discretion by entering summary judgment against

defendant that repeatedly failed to designate a Rule 30(b)(6) deponent. Commodity Futures Trading Comm’n v. Noble Metals Int’l, Inc., 67 F.3d 766, 770-771 (8th Cir. 1995).

2. Failure to Prepare

• Sanctions, pursuant to Fed.R.Civ.P. 37, also are proper when the corporation fails to adequately prepare a 30(b)(6) witness it produces to testify on its behalf.

• Sanctions were imposed on a corporate defendant who produced a 30(b)(6)

deponent who was unprepared for his deposition. Deponent could not answer questions and repeatedly testified that he was unaware that he was a 30(b)(6) deponent. The court found that deponent’s lack of preparedness and cooperation during the deposition was a clear demonstration of bad faith warranting sanctions and stated:

I read the record. It is appalling. It is appalling. [Deponent] did nothing except show his face only under the threat of court orders. When he showed up, he knew he was a 30(b)(6) witness and, notwithstanding the fact that he knew he was a 30(b)(6) witness, he refused to answer questions in an intelligent way. He refused to prepare, as you are required to prepare under 30(b)(6), to intelligently answer questions and just literally thumbed his nose at the defendants and, frankly, at the Court. Black Horse Lane Assn. v. Dow Chemical Co., 228 F.3d 275, 305 (3d Cir. 2000).

• Discovery was reopened for the limited purpose of allowing the 30(b)(6)

deposition of the plaintiff and plaintiff was required to pay costs to compensate the defendant for the time and expense incurred in preparing motion for sanctions because the deponent was not satisfactorily prepared at her first deposition. Paul Revere Ins. Co. v. Jafari, 206 F.R.D. 126, 128 (D. Md. 2002).

• Monetary sanctions of all costs and attorneys’ fees associated with actual taking

of deposition (as opposed to preparation time) imposed where court was struck how little time deponent spent preparing for 30(b)(6) deposition: total of 3 hours reviewing materials, merely glancing at some; did not conduct investigation into bank’s role in case; and spent scant 1.5 hours meeting with counsel. Continental Casualty Co. v. Compass Bank, 2006 WL 533510 *19-20 (S.D. Ala. 2006). See also Otero v. Vito, 2006 WL 3535149 *3 (M.D. Ga. 2006) (court imposed

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monetary sanctions where struck by how little time deponent spent preparing for deposition – 3 hours only – and incredibly did not review any documents or receive any substantive information from others relating to the categories noticed for deposition).

• Corporation was precluded from relying on information not disclosed by a

30(b)(6) deponent in a motion for summary judgment unless it could prove that the information was not known or accessible at the time of the deposition. Rainey v. American Forest and Paper Ass’n, 26 F. Supp. 2d 82, 94 (D.D.C. 1998). But see Interstate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455, 462, 2003 WL 22328849 (M.D.N.C. 2003) (defendant not precluded from providing evidence on its motion for summary judgment different or beyond that provided by its 30(b)(6) deponent, because summary judgment motions will be decided based on all appropriate evidence; plaintiffs’ remedy for failure to produce knowledgeable witness was to file a motion to compel and seek appropriate relief under Rule 37).

• Court refused to exclude evidence of defendant’s underwriting standards even

though 30(b)(6) witness could not answer questions about standards because plaintiff elected not to pursue several other avenues of information openly disclosed by defendant. Cedar Hill Hardware and Const. Supply, Inc. v. Ins. Corp. of Hanover, 563 F.3d 329, 345 (8th Cir. 2009).

• Court rejected proposed sanction of striking defendant’s opposition to motion for

class certification for allegedly violating order to produce 30(b)(6) witness properly prepared to testify about contracts with and agency fees paid to models. The requested sanction was out of proportion to the alleged violation. Masters v. Wilhelmina Model Agency, Inc., 2003 WL 21089073 *2 (S.D.N.Y. May 13, 2003).

• Court ordered defendant to designate proper deponent and prepare deponent to

testify. Court noted that it considered requiring deposition to be taken in close proximity to courthouse (in Minnesota) in order that objections could be expeditiously resolved, but that it was persuaded that deposition should be taken in at defendant’s office (in California) in proximity to documents. If problems persist, however, the deposition will be taken in Minnesota and accompanied by the imposition of sanctions upon a proper showing. Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000); see also Satchell, 2006 WL 2884318 at *10 (ordering 30(b)(6) deponent be produced in San Francisco, in light of defendant’s failure to produce knowledgeable witness first time and plaintiffs’ counsel had traveled to Memphis for first deposition).

• Court found that designees were not adequately prepared, but could not determine

from the transcript which topics were not sufficiently addressed. It thus ordered the plaintiff to serve a new notice with a list of topics on defendants and the court, not repeating any topics adequately covered during earlier depositions. The

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designees were ordered to review all documents in order to educate themselves. If, after that review, they believed in good faith that they could not respond to some of the topics, they were to notify plaintiff. The court reserved decision on whether reasonable costs and attorneys’ fees incurred by plaintiff in redeposing the designees should be assessed against defendants. Fabiano, 201 F.R.D. at 41.

• Court rejected extraordinary sanction of precluding defendant from offering

testimony at trial on subject matter of 30(b)(6) notice, which was tantamount to seeking a default judgment, because notice covered every issue in the lawsuit. After reviewing transcript, court found witness answered questions conscientiously and completely. However, ordered that deposition would recommence before the court to rule on application of privilege claims as to each question where they were asserted. Banks, 222 F.R.D. at 19-20.

• After 12 years of litigation, dismissal of case proper where plaintiff’s counsel

interposed inordinate number of objections and instructed 30(b)(6) witness not to answer even basic questions, such as, “are you a representative of plaintiff today?” After an order compelling 30(b)(6) testimony, plaintiff offered substitute designees who would only answer questions based on talking points prepared in advance and gave the same answers to many questions, and refused to answer questions because they lacked firsthand or personal knowledge. The court characterized the depositions as “fiascos” and ordered dismissal of the case as a sanction. Banco Del Atlantico, S.A. v. Woods Industries, Inc., 519 F.3d 350, 353-54 (7th Cir. 2008).

J. TESTIMONY BINDS THE CORPORATION

• The testimony of the designated 30(b)(6) witness binds the corporation. Marker, 125 F.R.D. at 126.

• The deposition of a corporation by its designee “is in substance and effect that of

the corporation or other organization which is a party.” Advisory Committee Notes to 1970 Amendments of Federal Rules.

• Not having a witness who can bind the corporation leaves the deposing party at an

unfair advantage, having no understanding of the company’s position in the areas of inquiry. Fabiano, 201 F.R.D. at 37.

• Designated 30(b)(6) witness must be an officer, director or managing agent in

order to bind the corporation. Honda, 168 F.R.D. at 540; Sugarhill, 105 F.R.D. at 170.

• It is the examiner’s burden to establish that the 30(b)(6) deponent was an officer,

director or managing agent at the time the deposition was taken. Honda, 168 F.R.D. at 540.

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• Test for determining if deponent is a managing agent –

Whether the corporation has invested the individual with discretion to exercise judgment;

Whether the individual can be depended upon to carry out the employer’s

directions; and Whether the individual can be expected to identify with the interests of the

corporation as opposed to the interests of the adverse party. This is the most important or paramount prong of the test.

Honda, 168 F.R.D. at 540.

• When managing agent status of deponent is a close call, doubts should be resolved in favor of the examining party. E.I. DuPont de Nemours and Co. v. Kolon Industries, Inc., 268 F.R.D. 45, 49 (E.D. Va. 2010).

• Finding that testimony of 30(b)(6) witness was not binding because it contained

no factual admission and did not discuss the intentions of the parties in forming the contract. Thus company was entitled to produce contrary evidence at trial. AstenJohnson, Inc. v. Columbia Cas. Co., 562 F.3d 213, 229 n.9 (3d Cir. 2009).

• Former employees cannot be managing agents of a corporation. Honda, 168

F.R.D. at 541. • Statements of designated 30(b)(6) witnesses are admissible into evidence as

admissions of the corporation. McKesson, 185 F.R.D. at 79.

• The fact that an individually noticed witness may have already testified about a subject is not a bar to a 30(b)(6) deposition on the same subject since the testimony of a witness noticed as an individual does not bind an entity as a 30(b)(6) witness does. State Farm Mut. Ins. Co. v. Weiss, 2005 WL 2861124 * 1 (M.D. Fla. 2005); Sabre v. First Dominion Capital, 2002 WL 31556379 *2 (S.D.N.Y. 2002).

• A Rule 30(b)(6) deponent may not invoke the Fifth Amendment. Nutramax

Laboratories, Inc. v. Twin Laboratories, Inc., 32 F. Supp. 2d 331, 337-38 (D. Md. 1999).

K. SCOPE OF EXAMINATION

• There is a split of authority regarding the permissible scope of examination of a Rule 30(b)(6) witness.

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• Some courts hold that examination of a Rule 30(b)(6) deponent is limited to the issues identified in the notice of deposition.

Even though examination is limited to the issues identified in the notice of

deposition, it should be construed broadly to facilitate substantial inquiry and dispense with the necessity of taking a second deposition of the witness as an individual. Paperilli v. Prudential Ins. Co., 108 F.R.D. 727, 730 (D. Mass 1985).

Counsel must seek a protective order and not just simply instruct the

witness not to answer matters outside the scope of the notice.

• Other courts hold, and the weight of authority is, that a Rule 30(b)(6) deponent may be examined in the same manner as any other deponent.

Rule 30(b)(6) simply defines a corporation’s obligation to produce an

individual who can testify for it. The Rule cannot be used to limit what is asked at the deposition. King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995).

Once a corporation’s designee has been produced for deposition, the scope

of the inquiry is guided by the general discovery standard of Rule 26(b)(1). Overseas Private Investment Corp. v. Mandelbaum, 185 F.R.D. 67, 68 (D.D.C. 1999).

Rule 30(b)(6) does not carve out a special limitation on the scope of

discovery as defined in Rule 26(b)(1). The requirement in Rule 30(b)(6) to describe with reasonable particularity the matters on which the examination is requested is not a limit on the scope of discovery set forth in Rule 26(b)(1). Cabot Corp. v. Yamulla Enterprises, Inc., 194 F.R.D. 499, 500 (M.D. Pa. 2000).

Although the Rule 30(b)(6) deponent can be asked questions outside areas

specified in the notice, the general deposition principles apply to these questions and the corporation cannot be sanctioned if the witness does not know the answer. Starlight, 186 F.R.D. at 639; see also Payless Shoesource Worldwide, Inc. v. Target Corp., 2007 WL 1959194 (D. Kan. 2007) *1 (stating that if deponent does not know the answer to questions outside the scope of matters described in the notice, then that is the examining party’s problem”) (emphasis in original).

It is improper to instruct a 30(b)(6) deponent not to answer questions

outside the scope of the matters described in the notice. Postx Corp. v. Secure Data Motion, Inc., 2005 WL 767593 *2 (N.D. Cal. 2005).

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II. WHEN TO TAKE THE CORPORATE DESIGNEE DEPOSITION

A. ADVANTAGES

• Gain admissible admissions of corporation.

• Can be used for any purpose consistent with Rules of Evidence. • Superior method of obtaining complete information. Better than interrogatories

and requests for production of documents. • More efficient and cost effective because the burden is on the corporation to

designate and prepare most knowledgeable person to testify in specified subject areas.

B. DISADVANTAGES

• There really are not many, if any, disadvantages that should dissuade you from taking a 30(b)(6) deposition, particularly in a class action case.

• Corporation will tend to produce lowest level individual with knowledge of

subject matter or person least likely to make damaging admissions. • Size and complexity of case may not warrant time and cost.

III. CONSIDERATIONS FOR DRAFTING THE RULE30(B)(6)

DEPOSITION NOTICE

• Rule 30(b)(6) requires identifying the topics on which examination with reasonable particularity.

• There are risks to describing your topics too broadly:

Some courts have required that the topics be designated with “painstaking specificity”.

Do not use “including but not limited to” in describing your topics, as it will likely render the entire notice defective.

Remember that your notice likely will be admitted as an exhibit at the deposition and the designee may be questioned about it. Be sure to write in plain English and avoid any unintentional ambiguities.

• Consider topics that allow you to inquire about the company’s position on class certification issues (e.g., “contention 30(b)(6) topics”). Some courts have allowed

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inquiry into facts and the company’s position regarding the claims and affirmative defenses, so you may be able to inquire into the company’s position on topics such as numerosity, typicality, etc.

• A 30(b)(6) notice counts as one deposition even if the company designated more than one witness to testify in response to that notice.

• The durational time limits of 7 hours per deposition under the Rules may or may not apply in your jurisdiction to 30(b)(6) depositions.

• There are no limits in the number of topics that can be identified in the 30(b)(6) notice. But be reasonable or you risk having the court tailor the notice.

• A notice suffices to compel the deposition if the entity is a party. A subpoena is necessary to compel the attendance of a non-party entity.

• While Rule 30(b)(6) allows the deposing party to request that documents be produced at the deposition, the better practice is to serve a document request well in advance of the scheduled deposition so that documents may be received and reviewed prior to the deposition.

IV. TAKING THE CORPORATE DESIGNEE DEPOSITION

• 30(b)(6) depositions are invaluable for obtaining understanding of corporation’s organizational structure, operating and personnel policies and practices, identification of relevant decision makers and criteria for making decisions, record keeping, and statistical information.

• Inquire about all facts upon which the corporation based its denial of allegations

made in its Answer to the Complaint. • Inquire about all facts supporting affirmative defenses made in the Answer to the

Complaint. • Areas of inquiry at the deposition (for an employment discrimination case)

Confirm that witness understands that he or she was designated by

corporation to speak for it and that he or she has reviewed deposition notice

Establish competence to testify about topics listed in notice If deponent cannot testify about a particular topic, find out who can

Nature and scope of document search conducted and by whom

Educational and professional background

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Establish that witness is officer, director or managing agent of entity

Corporate structure and personnel

Company headquarters Board of Directors President Management Committee or Executive Team Training and supervision provided by corporate headquarters Divisions Employee classifications Human Resources Department Regional/District structure Structure at job site

Personnel policies and practices

Formulation and development Implementation and enforcement Employee manual or handbook Hiring and initial job assignment Training Transfers Promotions EEO or diversity policy Performance Management Compensation EEO complaints

Personnel recordkeeping

Historical staffing patterns

Validation studies

• If witness cannot testify about noticed topics, make your record at the deposition.

Details the deficiencies in the witness’ testimony. Make a demand for another witness who is knowledgeable and prepared to testify about those topics. Follow up with the opposing party’s counsel after the deposition.