GSB Vol. 10, No. 4 - #1. Use and Misuse of O.C.G.A. 9-11-30(b)(6).

AuthorBy Walter H. Bush Jr. and Matthew T. Covell

Georgia Bar Journal

Volume 10.

GSB Vol. 10, No. 4 - #1.

Use and Misuse of O.C.G.A. 9-11-30(b)(6)

Georgia State Bar JournalVol. 10, No. 4, December 2005"Use and Misuse of O.C.G.A. 9-11-30(b)(6)"By Walter H. Bush Jr. and Matthew T. CovellThe authors of Rule 30(b)(6) of the Federal Rules of Civil Procedure originally envisioned that it would be utilized in situations when it is unclear what role each of the individual employees played in a dispute involving a corporate party. Rule 30(b)(6) is intended to "curb the 'bandying' by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it."1 For example, suppose that after exchanging written discovery, it is apparent that key individuals involved in the transaction at issue no longer work for the corporate party. Or, suppose that the documents produced during discovery reveal that numerous individuals are involved, and it is unclear what each of their respective roles was in the underlying transaction. In these situations, a Rule 30(b)(6) deposition allows the examining party the option of simply designating the subject matters about which it is interested in eliciting testimony, and the corporate party is then tasked with identifying the proper individuals within the corporation to testify as to those matters. Essentially, a Rule 30(b)(6) deposition is meant to take the guesswork out of the deposition-designation process.2 In recent years, proponents of Rule 30(b)(6)3 have touted the use of this procedure to dramatically streamline the discovery process when corporate parties are involved. Moreover, they have encouraged lawyers to use the rule as an offensive weapon to force the opponent to create and prepare a "super" witness who possesses all of the corporate party's relevant knowledge. Through this one witness, an examining party can discover all of the facts supporting its opponent's contentions and pin its opponent down with binding admissions obtained from the deposition. Practically speaking, however, the rule does not always streamline discovery as much as supporters had hoped, and, in some situations, it is misused for strategic reasons.4 There is no uniform standard regarding the obligations on a corporate party to prepare its Rule 30(b)(6) witness or witnesses. For example, some courts hold that the organization has an affirmative obligation to prepare a witness with knowledge of all the facts known by anyone in the organization that are relevant to matters designated in the Rule 30(b)(6) notice.5 The difficulty with such a standard is that a Rule 30(b)(6) deposition of the specially prepared "super" witness can then be employed to obtain binding admissions against the organization for use on a motion for summary judgment.6 Other courts recognize that no one "super" witness can fairly be expected to articulate all knowledge of the corporate party. The examining party during a deposition usually attempts to discover its opponent's factual knowledge with respect to the matters designated. Any information gained is simply another form of evidence. It may be used to bolster supporting evidence or undermine contradictory evidence. As one court explained, "[i]t is true that a corporation is 'bound' by its Rule 30(b)(6) testimony in the same sense that any individual deposed under Rule 30(b)(1) would be 'bound' by his or her testimony. All this means is that the witness has committed to a position at a particular point in time. It does not mean that the witness has made a judicial admission that formally and finally decides the issue."7 While some courts hold that the deponent must be both knowledgeable about a given area and prepared to give complete and binding answers on behalf of the organization, 8 other courts recognize that Rule 30(b)(6) is not intended to be a memory contest. One court commented that "[i]t is not reasonable to expect any individual to remember every fact in a [corporate] investigative file."9 Another court acknowledged that there are limits on what a single human being may be capable of remembering, characterizing the obligation to be an effort to testify "to the extent that [the witness] is able."10

Strategic Misuse of Rule 30(b)(6) Depositions

One increasingly common strategic misuse of Rule 30(b)(6) is for opposing counsel to mount a pre-emptive strike by noticing a Rule 30(b)(6) deposition regarding all facts in support of a corporation's contentions and affirmative defenses at the beginning of discovery, before the corporation has had an opportunity to investigate its position and is ready to be bound by its answer.11 To appreciate this potential misuse, assume that a corporate party has been noticed for a deposition under the Rule. Suppose that the events giving rise to the claims are complex and involve the actions of several people over a course of time. Assume further that the events in question happened long ago, and that many of the people who were employees of the corporate party are no longer under its control. Other participants in the underlying transaction may be dead or unavailable. Furthermore, other potential witnesses are third parties who are not under the control of the organization. The documents that bear upon the underlying transaction are voluminous, scattered and ambiguous. Counsel for the corporate party is now faced with the task of helping the client select and prepare one or more designees to testify on its behalf on what is "known or...

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