Organizational Avatars: Preparing Crcp 30(b)(6) Deposition Witnesses
| Publication year | 2014 |
| Pages | 39 |
| Citation | Vol. 43 No. 12 Pg. 39 |
Articles The Civil Litigator
Organizational Avatars: Preparing CRCP 30(b)(6) Deposition Witnesses
By Martin D. Beier
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editor
Timothy Reynolds, Boulder, of Bryan Cave HRO-(303) 417-8510, timothy.reynolds@bryancave.com
About the Author
Martin D. Beier is a director at Silver & DeBoskey, P.C, and is an experienced appellate and trial attorney appearing regularly in both state and federal courts. His civil law practice focuses on providing solutions to businesses and individuals on complex business, real estate, tenancy, and employment matters. He also represents schools and students on matters of education and contract law-beierm@s-d.com, www.silverdeboskey.com.
Properly preparing an organization’s designee for a deposition requires familiarity with the obligations imposed by the civil rules, and involves unique obligations and challenges. This article discusses the requirements of Rule 30(b)(6) and possible sanctions for noncompliance with that rule. It also provides guidelines for dealing with organizational depositions.
Corporations and other legally recognized organizations are frequently involved in litigation and, as a result, can be required to testify as witnesses to the organization’s "knowledge." What an entity knows is often a conglomeration of information learned by its officers, directors, agents, employees, or others, as well as other knowledge residing in the company’s records. Assembling this organizational knowledge becomes necessary if the organization receives a Notice that it will be deposed. The Colorado Rules of Civil Procedure include a process, spelled out in Rule 30(b)(6), to make this possible.
Civil litigators who receive Rule 30(b)(6) deposition Notices for their organizational clients are required to help them prepare to testify. Doing so under the Rule 30(b)(6) process involves unique challenges, because courts have held that "a corporation is expected to create an appropriate witness or witnesses from information reasonably[1] available to it if necessary."1 This organizational avatar-a designee who embodies the organization-is someone who has been educated on the topics in the Notice and is charged with knowing more than just the cumulative understanding of events held by other organizational employees. The designee speaks for the organization and gives its views and understanding of events. Thus, properly preparing the Rule 30(b)(6) designee requires familiarity with the obligations imposed by the text and interpretations of that rule.
This article provides an overview of the text and relevant case law interpreting Rule 30(b)(6) so that practitioners can assist their organizational clients in creating and preparing the designee(s) who will appear. The article discusses the extent and limits of such preparations, and covers sanctions that might be imposed on an organization for failing to meet its obligations under the rule. It concludes with a checklist of guidelines to help attorneys assist their clients in creating the organizational avatar who will embody the organization during the deposition.
The Colorado and Federal Versions of the Rule
Colorado’s version of Rule 30(b)(6) provides:
A party may, in his notice, name as the deponent, a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. 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 he will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This sub-section (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.[2]
The federal rule is similarly worded, with only a couple of substantive differences worth noting.[3] First, the federal rule includes the phrase "other entity" within the list of organizations that ma y be named as deponents. This addition was intended to avoid wrangling over what types of entities are covered, to clarify that "more exotic common-law creations, or forms developed in other countries[,]" also fall within the rule’s scope.[4] Second, the federal rule uniquely requires that the subpoena advise a non-party organization of its duty to make the witness designation.
The Purposes Behind the Rule
Two key purposes of Rule 30(b)(6) are to assist the party deposing an organization by
avoid[ing] the "bandying" by corporations where individual officers disclaim knowledge of facts clearly known to the corporation, and to assist corporations which found an unnecessarily large number of their officers and agents were being deposed.[5]
As one court has said, the rule "allows an entire corporation to speak through one agent."[6] The rule also aids the organization called to testify, because it gives the entity more control, allowing it to designate and prepare as few or as many witnesses to testify on its behalf as it elects.[7]
Requirements on the Party Preparing the Notice
The Rule obligates the party taking the organizational deposition to prepare the topics "with reasonable particularity[.]"[8] Courts have interpreted this language to require the deposing party to identify specific subjects "with painstaking specificity," and confine the topics to those "that are relevant to the issues in dispute."[9] This heightened specificity level exists because if the organization "cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible."[10] The demand for reasonable particularity aids the organization in identifying persons with knowledge and relevant documents so the designee can be prepared with responsive knowledge. Particularity is also important because the designee "is not expected to be clairvoyant, so as to divine the specific questions that could require the assist of a demonstrative aid[.]"[11] Thus, where appropriate, attorneys preparing Rule 30(b)(6) Notices should consider combining them with Rule 30 Requests for Production (or with a subpoena duces tecum to a non-party) so the designee comes with documents relevant to the topics that the designee cannot be expected to have committed to memory.[12]
Further, the rule also implicitly requires that the party seeking the deposition provide the organization being deposed sufficient time to get its witness(es) ready, as appropriate, based on the number and/or subjects of the topics.[13] The deposing party’s failure to satisfy the rule’s requirements can result in a protective order that delays or even prevents that party from obtaining the requested information.
Although many attorneys will include in their Rule 30(b)(6) Notices the statement that the organization must produce the "person most knowledgeable" about the listed topics, the rule does not expressly require that such persons be produced. In fact, some courts believe such requests are "fundamentally inconsistent with the purpose and dynamics of the rule."[14] These courts hold that the deposing party cannot include a requirement in the topics that the witness have personal knowledge.[15] It has also been held improper to preface the areas of inquiry with language that the topics "include, without limitation" areas specifically enumerated. This practice is disapproved because it "subjects the noticed party to an impossible task" to prepare its designee.[16]
The rule gives the organization, not the deposing party, the right to select the person(s) who will appear. The organization can designate anyone to testify on its behalf, "but only with their consent."[17] As long as the person produced has the requisite knowledge, the organization may elect not to produce the person most knowledgeable on the topics. As one magistrate judge has cautioned, "permitting a requesting party to insist on the production of the most knowledgeable witness could lead to time-wasting disputes over the comparative level of the witness’ knowledge."[18]
Thus, requests to produce the most knowledgeable person in a Rule 30(b)(6) Notice are problematic because they may be objectionable and/or unenforceable.
Requirements on the Organization Receiving the Notice
To date, there is very little published Colorado authority construing an organization’s obligations under Rule 30(b)(6). The Colorado Supreme Court has yet to interpret the rule. The Colorado Court of Appeals has directly addressed the obligations of a designee in just two published cases to date: D.R. Horton, Inc.–Denver v. D & S Landscaping, LLC and Camp Bird Colorado, Inc. v. Board of County Commissioners of County of Ouray.[19]
The D.R. Horton Case
In D.R. Horton, a development company (D.R. Horton) brought claims against its subcontractors for breach of contract and warranty, indemnification, contribution, and negligence. D.R. Horton was served with a Rule 30(b)(6) Notice, which required designation of a witness to testify to, among other things, "any other errors D.R. Horton claims were made by the subcontractors."[20]
The company did not seek a protective order, but elected instead to advise the deposing parties that it had only one employee left who was there at the time the subcontractors’ work was done and that she worked in sales and marketing, but that she could identify former employees who may have knowledge of the topics. The deposition proceeded, and although the designee identified former...
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