Rule 30(b)(6) Depositions Are a Two-Way Street

• Pages: 22-22
• Date: 01 October 2023
• Author: Lauren Gregory Leipold
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

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I

would venture to guess that most litigators reading this

column can recall a time or two when opposing counsel

has leered at them from across the table (or, these days,

through a webcam on Zoom) and accused them of fail-

ing to adequately prepare a corporate witness on noticed

deposition topics. A ght typically ensues.

This is why, in 2020, Rule 30(b)(6) was amended to require

a good faith conference between parties “before or promptly

after” a corporate deposition notice is served. In practice,

however, it seems as if many litigants either ignore the rule or

give it short shrift, blindly nger-pointing about the failure to

prepare a witness to testify on a topic without rst establish-

ing a mutual understanding of the scope of that topic.

To be clear, I am not arguing that thorough witness prepa-

ration is not required. But I am emphasizing that both parties

have burdens to meet under this rule.

The plain text of Rule 30(b)(6) requires that upon receipt of

a notice to depose a corporation, “the named organization must

designate one or more ofcers, directors, or managing agents…

or other persons who consent to testify on its behalf” and must

produce the designated individuals to testify about “information

known or reasonable available to the organization.”

The standard for preparation to testify has been articulated

as a requirement to make a “conscientious and good-faith

endeavor” to prepare witnesses “in order that they can answer

fully, completely, and unevasively, the questions posed…as to

the relevant subject matters,” just as a party would be required

to do in responding to interrogatories.

The rule does not require “absolute perfection” in prepa-

ration, note the courts. But to the extent the corporate rep-

resentative does not have personal knowledge regarding a

noticed topic, courts have held that he or she has an afrma-

tive obligation to investigate in order to answer in a manner

that reects the knowledge of the corporation as a whole.

This might include a review of prior fact witness deposition

testimony and exhibits, discussion with other past or present

employees, or a review of documents, “even if the documents

are voluminous and the review of the documents would be

burdensome.”

It is well known that failure to adequately prepare a cor-

porate representative for deposition can lead to signicant

adverse consequences for your client. Some courts have

ordered an unprepared party to expend the time and money

to reprepare and reappear, possibly with a new witness better

suited to address the noticed topics. Others have determined

that testimony given by a nonresponsive deponent is deemed

binding on the corporation, such that the corporation can-

not offer contrary evidence at trial. Still others have held that

producing an unprepared witness “is tantamount to failure to

appear” and, thus, merits Rule 37 sanctions ranging from the

imposition of costs to entry of a default judgment.

However, litigants seem to forget that the burden to ade-

quately prepare a witness to testify only comes into play after

the deposing party has met its burden to set forth deposi-

tion topics “with reasonable particularity” in the rst place.

Some courts have refused to award sanctions for an allegedly

unprepared corporate witness where the topics as articulated

in the deposition notice failed to “reasonably particularize the

subjects” for examination. These courts have observed that

it is simply not fair to “demand that a corporate designee be

prepared to speak with encyclopedic authority” in response to

“counsel’s quizzing.”

In other words, the process is meant to be a two-way street,

and the parties should use Rule 30(b)(6)’s meet and confer

requirement to engage accordingly. While the noticing counsel

may be concerned about limiting the scope of its examination

too narrowly by agreeing to narrow topics during a meet-and-

confer, it would be equally problematic to have a court later

declare that the burden to prepare never even shifted to the

party producing the corporate witness because the topics were

not articulated with “reasonable particularity.”

With increased communication regarding topic scope during

a meet-and-confer, the deposing party will get better, more use-

ful testimony because the witness will be prepared to speak to

specic issues in more detail. And the party being deposed will

be able to reduce the chances its witness inadvertently provides

inaccurate or incomplete testimony that will bind the corpora-

tion on specic issues that might fall within a larger topic.

Ideally, all of this will allow the parties to address potential

privilege issues in advance of deposition, rather than having to

call the court for guidance in real time, and should also reduce

the time and cost associated with motions to compel (if any

are required after the conference). Finally, compliance with

the rule will ensure that litigants are not drawing attention

from the court for the wrong reasons—an outcome both sides

would agree is best to avoid.

Rule 30(b)(6) Depositions Are a

Two-Way St ree t

By Lauren Gregory L eipold, Litigation News Associate Ed itor

FALL 2023 • VOL. 4 9 NO. 1

22 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE