Advanced Topics in Oral Civil Discovery.

• Date: 01 January 2021
• Author: Redmond, Robert F.

THIS article addresses advanced topics in civil discovery in state and federal courts. It presupposes prior experience in both oral discovery and pretrial procedure. This article focuses on oral civil discovery and is presented in a Frequently Asked Questions ("FAQ") format that may be more accessible to seasoned practitioners. Because state court rules are frequently based on the Federal Rules of Civil Procedure ("FRCP"), (1) this article generally relies on federal authority (with occasional references to state court authority).

1. Oral Discovery

   1. What to do About Overbroad Corporate Deposition Notices

      Corporations are required under FRCP 30(b)(6) to produce a witness (or multiple witnesses) who can testify about specific topics identified in the deposition notice. Sometimes, corporations are served with notices that have 20, 30 or 40 topics. It can be difficult, if not impossible, to prepare a witness for all of those topics. This creates a further risk to corporations, because there is case law that provides that a corporation cannot offer evidence on a topic that was covered by a 30(b)(6) notice if the witness was not prepared to testify on that topic.

      Courts recognize that Rule 30(b)(6) depositions can be a wellspring of discovery abuse. One judge described the issue:

      [A] 30(b)(6) deposition, which by its nature can be time-consuming and inefficient, [must] be productive and not simply an excuse to seek information that is already known. (2) Courts have held that the deposing party must designate topics for the deposition with "painstaking specificity":

      A deposition under Rule 30(b)(6) differs in significant respects from the normal deposition. To begin with, the notice of deposition must "describe with reasonable particularity the matters for examination." As several courts and commentators have pointed out, the goal of this requirement "is to enable the responding organization to identify the person who is best situated to answer questions about the matter, or to make sure that the person selected to testify is able to respond regarding that matter." Accordingly, there is an implicit obligation on the deponent to prepare the witness. However, the rule implies an equivalent obligation on the deposing party to designate with painstaking specificity, the particular subject areas that are intended to be questioned. (3) Courts have also quashed FRCP 30(b)(6) deposition notices when the topics listed are open-ended or vague:

      The court finds plaintiff's Rule 30(b)(6) notice to be overbroad. Although plaintiff has specifically listed the areas of inquiry for which a 30(b)(6) designation is sought, she has indicated that the listed areas are not exclusive. Plaintiff broadens the scope of the designated topics by indicating that the areas of inquiry will "include, but not [be] limited to" the areas specifically enumerated. An overbroad Rule 30(b)(6) notice subjects the noticed party to an impossible task. To avoid liability, the noticed party must designate persons knowledgeable in the areas of inquiry listed in the notice. Where, as here, the defendant cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible. (4) In sum, corporate deposition notices can be a source of discovery abuse, but courts will limit them.

   2. What Happens When a Corporate Representative "Does Not Know" about a Topic?

      The Federal Rules of Civil Procedure do not allow a party to disclaim knowledge in a Rule 30(b)(6) deposition and then later offer testimony about that topic. Courts have ruled that because a Rule 30(b)(6) designee testifies on behalf of the entity, the entity is not allowed to defeat a motion for summary judgment based on an affidavit that conflicts with its Rule 30(b)(6) deposition or contains information that the Rule 30(b)(6) deponent professed not to know. (5) Federal courts apply this principle to preclude evidence a corporate witness "did not know":

      [D]epending on the nature and extent of the obfuscation, the testimony given by the non-responsive deponent (e.g. "I don't know") may be deemed "binding on the corporation" so as to prohibit it from offering contrary evidence at trial. (6) Courts impose this proscription because the 30(b)(6) deposition is intended to ease the burden on corporations, and conversely, corporations have an obligation to present well-prepared witnesses:

      By commissioning the designee as the voice of the corporation, the Rule obligates a corporate party "to prepare its designee to be able to give binding answers" in its behalf. Unless it can prove that the information was not known or was inaccessible, a corporation cannot later proffer new or different allegations that could have been made at the time of the 30(b)(6) deposition. (7) A notice of deposition made pursuant to Rule 30(b)(6) requires the corporation to produce one or more officers to testify with respect to matters set out in the deposition notice or subpoena. A party need only designate, with reasonable particularity, the topics for examination. The corporation, then must not only produce such number of persons as will satisfy the request, but more importantly, prepare them so that they may give complete knowledgeable and binding answers on behalf of the corporation. (8) The Western District of North Carolina has excluded evidence on "the central issue" because the FRCP 30(b)(6) witness was unprepared.

      [Movant] could not first take the position that it had no information on that subject and then later, after the close of discovery and the filing of the Defendant's dispositive motion, completely reverse itself. (9) In sum, if a corporate representative is unprepared to offer testimony about a topic, his testimony that he "does not know" about the topic is binding on the corporation; the corporation also "does not know."

   3. Can a Corporate Representative be Forced to Testify About Litigation Contentions?

      Many courts reject the use of Rule 30(b)(6) to require an adverse party to "marshal...its factual proof" and then put forward a witness to be cross-examined regarding such proof under oath. For example, In re Independent Serv. Orgs. Antitrust Litigation (10) upheld objections to these notices seeking "facts supporting numerous paragraphs of [a party's] denials and affirmative defenses." As the court explained, these 30(b)(6) notices improperly required the responding party "to marshal all of its factual proof and then provide it to [the 30(b)(6) designee] so that she could respond to what are essentially. contention interrogatories. [T]his would be highly inefficient and burdensome, rather than the most direct manner of securing relevant information." (11)

      If a party seeks to learn his adversary's legal contentions, that party should serve interrogatories:

      The Rules also preclude proponents of discovery from wielding the discovery process as a club by propounding requests compelling the recipient to assume an excessive burden. (12) Consequently, the recipient of a Rule 30(b)(6) request is not required to have its counsel muster all of its factual evidence to prepare a witness to be able to testify regarding a defense or claim. This rule holds especially true when the information sought is likely discoverable from other sources....Defendants could readily have obtained the same information in a more efficient manner by propounding "standard" interrogatories upon its opponent. By doing so, Defendants could obtain the same information with infinitely less intrusion upon privilege concerns, in a more workable form, and from the individuals who have actual knowledge of the matters at issue. (13) District courts in the Fourth Circuit routinely require parties to use written discovery rather than corporate depositions to ferret out an adversary's legal contentions:

      Plaintiffs can obtain the factual support for defendants' affirmative defenses in other less burdensome ways. Plaintiffs are entitled to know the factual basis for defendants' affirmative defenses, and defendants should provide through answers to written discovery responses. A party may seek to discover by interrogatory facts that form the basis of pleaded affirmative defenses. (14) Counsel should promptly object to such Rule 30(b)(6) notices and argue that the 30(b)(6) deposition is intended to identify facts, not poke holes in legal theories.

   4. FRCP 30(b)(5) and Overbroad Deposition Document Requests

      FRCP 30(b)(6) deposition notices are frequently accompanied by a Rule 30(b)(5) request for documents. Often, discovering parties use these document requests to burden the party to be deposed while the party is trying to prepare for the Rule 30(b)(6) deposition. There is good authority for the proposition that FRCP 30(b)(5) is meant for narrow, focused document discovery related to the pending FRCP 30(b)(6) deposition and is not intended to substitute for broad document discovery under FRCP 34. Rule 30(b)(5) states in relevant part as follows:

      The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request. (15) The pertinent portion of the Advisory Committee Notes to this subsection states that:

      ...[A] provision is added to enable a party, through service of notice, to require another party to produce documents or things at the taking of his deposition. Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this rule will depend on the nature and volume of the documents or things. Both methods are made available. When the documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate discovery. If the discovering party insists on examining many and complex documents at the taking of the deposition, thereby causing undue burdens on others, the...