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Taking and Defending Effective Depositions under Rule 30(b)(6) by Tanya N. LewisEvery attorney knows what it means to take the deposition of anindividual, whether the deponent is a party to civil litigation or a non-partywitness with knowledge pertaining to an issue in the case. But what about an organization?Information about how a company or organization conducts its operations, hiresand trains its employees, handles its accounting and finances, or performssafety inspection may be crucial to proving either liability or damages,depending on the case. How can a party (whether a plaintiff or a defendant)obtain valuable, relevant testimony on these or other subjects from what mayseem like a faceless entity?The 30(b)(6) Deposition, GenerallyThe Federal and Utah Rules of Civil Procedure both anticipated theneed for verbal testimony to be taken from a corporation, limited liabilitycompany, or other organizational entity, and set forth special guidelines underFederal Rule 30(b)(6) and Utah Rule 30(b)(6), respectively. Both the Federaland Utah rules permit (and require) a party seeking a deposition from an entityto direct a deposition notice to the entity that sets forth the subject mattersof the desired testimony from whom testimony is sought. The Utah rule states:
A party may in the notice and in a subpoena name as the deponent a public orprivate corporation, a partnership, an association, or a governmental agencyand describe with reasonable particularity the matters on which examination isrequested. In that event, the organization so named shall designate one or moreofficers, directors, managing agents, or other persons who consent to testifyon its behalf and may set forth, for each person designated, the matters onwhich the person will testify. A subpoena shall advise a nonparty organizationof its duty to make such a designation. The persons so designated shall testifyas to matters known or reasonably available to the organization. ThisSubdivision (b)(6) does not preclude taking a deposition by any other procedureauthorized in these rules.
U.R.C.P. 30(b)(6). The Federal rule is similar in nature to the Utah rule andreads:
In its notice or subpoena, a party may name as the deponent a public or privatecorporation, a partnership, an association, a governmental agency, or otherentity and must describe with reasonable particularity the matters forexamination. The named organization must then designate one or more officers,directors, or managing agents, or designate other persons who consent totestify on its behalf; and it may set out the matters on which each persondesignated will testify. A subpoena must advise a nonparty organization of itsduty to make this designation. The persons designated must testify aboutinformation known or reasonably available to the organization. This paragraph(6) does not preclude a deposition by any other procedure allowed by theserules.
F.R.C.P. 30(b)(6). Both rules require the deposing party to set forth in thenotice, with reasonable particularity, the categories of testimony desired fromthe corporation or other entity.
History of and Policy Reasons for the 30(b)(6) DepositionThe section providing for 30(b)(6) depositions was added to theFederal rules in the 1970 amendments. The advisory committee noted that the30(b)(6) deposition would improve the deposition process by reducingdifficulties as to whether an employee was a “managing agent.” It also wasintended to reduce the instances of “passing the buck” from one employee toanother by having the corporation designate which witnesses would testify.
The advisory committee notes also indicate that the rule was designed tosupplement the existing practice, where the examining party designates thecorporate official to be deposed. It provides for the examining party to takeadditional fact witness depositions (other than the deposition taken pursuantto Rule 30(b)(6)) if he or she believes that other individuals who haveknowledge but who have not been deposed under 30(b)(6) should testify. For anin-depth discussion of this subject, as well as an analysis of motion practiceregarding protective orders for a 30(b)(6) deposition see Stone v. MortonInt’l, Inc., 170 F.R.D. 498 (D. Utah 1997).
The Subject of 30(b)(6) Depositions Has not been Litigated Significantly inUtah State Courts. However, in Harris v. IES Associates, Inc., 69 P.3d 297 (Utah Ct.App. 2003), the Utah Court of Appeals did issue an opinion regarding, amongother things, the scope of questioning allowed during a 30(b)(6) deposition.Prior to trial, Harris sought to depose IES’s corporate representative, andsent three notices indicating that he intended to depose the representative inregard to, inter alia, document authenticity and IES records maintained orprepared during the course of its regularly conducted business activities.During the deposition, IES’s counsel objected to questions about therepresentative’s status at IES and involvement in the production of documentsrequested during the course of written discovery. IES’s counsel maintained thatthe questions were outside the scope of the 30(b)(6) notices. After thirtyminutes into the deposition, counsel for IES made an oral motion for protectiveorder and instructed the representative not to answer questions about hisstatus and involvement in document production. Ultimately, following a hearing,the trial court found that the questions were within the scope of the notices,and that although IES’s counsel could object on the record to the questions, itwas improper for counsel to instruct the deponent not to answer. The court alsoimposed sanctions under rule 37(a)(4) of the Utah Rules of Civil Procedure,ruling that the deposition was improperly terminated. On appeal, the Utah Courtof Appeals upheld the trial court’s ruling and sanctions, pointing out that IESfailed to discuss the scope of the three deposition notices and to identify orexplain why specific questions exceeded the scope of the notices.
The Harris case illustrates, then, the importance of crafting adequate 30(b)(6)notices that comply with the rule. Note that the rule does not require noticesto be drafted with specificity, only that they describe the matters on whichtestimony is sought with reasonable particularity. Therefore, in noticing a30(b)(6) deposition, general background-type questions pertaining to thelitigation itself such as those described in the Harris case will probably beallowed, even if there is no category set forth on the deposition notice.However, it is not a bad idea to include a separate category just forlitigation of the instant matter. More importantly, Harris should serve as awarning to those defending 30(b)(6) depositions that a Utah court is likely togive a substantial amount of latitude to deposition takers, and thatinstructing a deponent not to answer questions on the grounds that thequestions are outside the scope of the notice is something that should be donesparingly and at great peril, and only when the matters are obviously outsidethe scope of the notice.
30(b)(6) Cases in the Federal CourtsAt both the state and Federal level, the 30(b)(6) deponent is notgiving his personal opinions; rather, the deponent presents the corporation’sposition on the topic. See generally Sprint Commc’ns L.P. v. Theglobe.com, 236F.R.D. 524 (D. Kansas 2006). The Sprint court noted that in a 30(b)(6)deposition, there is no distinction between the corporate representative andthe corporation. It further held that companies have a duty to make aconscientious, good-faith effort to designate knowledgeable persons to bedeposed on behalf of the corporation and to prepare them to fully andnon-evasively answer questions about the designated subject matter. It alsoacknowledged that the requirements on a corporation that must prepare adeponent to be deposed on the corporation’s behalf may be onerous. However, itnoted that the burden upon such an entity is justified, since a corporation canonly act through its employees. Therefore, the requirements negate anypossibility that a deposing party will be directed from one corporaterepresentative to another, “vainly searching for a deponent who is able toprovide a response which would be binding upon that corporation.” Id. at 528.The court also suggested that a party responding to a request for a depositionof a corporate representative to testify on behalf of a corporation “preparedeponents by having them review prior fact witness deposition testimony as wellas documents and deposition exhibits. Any other interpretation of the Rulewould allow the responding corporation to ‘sandbag’ the deposition process.”Id. (internal quotation and footnotes omitted).
The Sprint court also stated in order for the 30(b)(6) to function effectively,the requesting party state, with “painstaking specificity,” the particularsubject areas intended to be questioned, and that are relevant to the issues indispute. It is important to note that this interpretation goes significantlyfarther than the actual language of the rule, which requires only “reasonableparticularity.”
Practical Tips for 30(b)(6) Deposition NoticesOne of the most common mistakes is drafting a deposition noticefor an entity, entitled a “Notice of 30(b)(6) Deposition,” that is drafted justlike any other deposition notice, without any type of description of subjectsor matters on which testimony is sought. In many instances, I can usuallydetermine what type of testimony the other side wants. However, to protect myclient and to prevent misunderstandings at the time of deposition, I willusually draft and send a letter to counsel citing the rule and asking them tosend an amended notice stating the categories of testimony sought.
Another problem brought to our attention recently was the opposite issue,where, for a fairly minor case, counsel prepared a 30(b)(6) notice to acorporate defendant with over 100 separate categories of testimony sought. Inthis instance, recommended practices would probably include attempting to workout a stipulated agreement between counsel on the areas of testimony, and, ifthat was not successful, seeking a protective order from the court and/or acourt ruling on the subjects of testimony to be covered in the deposition.
In matters where multiple people are expected to sit for a 30(b)(6) deposition,serving the notice and coordinating schedules with the deponents far in advanceof any case deadlines or discovery cutoffs is usually well-advised, especiallywhen the party seeking testimony needs the people to be deposed in a particularorder. For example, in an employment discrimination case, you may wish to takethe testimony of the person most knowledgeable for hiring within the companybefore you were to take the testimony of the person most knowledgeable for theindividual’s performance during their employment. Scheduling matters can impedethe 30(b)(6) process, especially if persons in an organization are scatteredacross multiple states, and planning ahead can save a great deal of troublelater in the case.
Rule 30(b)(6) is probably one of the least-understood (and least-complied with)discovery rules. A thorough understanding of 30(b)(6), as well as what it canand cannot do, can greatly improve an attorney’s representation of corporationsand other organizational entities in all types of litigation.
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