Serving and Receiving 30(b)(6) Deposition Notices
| Publication year | 2016 |
| Pages | 36 |
Thomas C. Nelson, J.
In cases with corporate parties, there may be additional challenges in discovery because there is often no one representative who possesses all relevant information. Effective usage of the Rule 30(b)(6) deposition notice is vital in these types of cases. Likewise, it is important for the attorney representing the corporate party to ensure that the party's obligations in responding to a 30(b)(6) deposition notice are fully met.
"A party may in [a deposition] notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested."[1] "In that event, 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"[2] A subpoena shall advise a non-party organization of its duty to make such designations. The persons so designated shall testify as to matters known or reasonably available to the organization. Subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. The designated witness is "speaking for the corporation," and this testimony must be distinguished from that of a "mere corporate employee" whose deposition is not considered that of the corporation and whose presence must be obtained by subpoena.[3] "Obviously it is not literally possible to take the deposition of a corporation; instead, when a corporation is involved, the information sought must be obtained from natural persons who can speak for the corporation."[4] The corporation appears vicariously through its designee.[5]
Preparing the notice
One reason for the 30(b)(6) deposition is to allow a party to obtain discovery from an organization while that party may not know the identities of persons with relevant knowledge.[6] The difficulty in preparing 30(b)(6) notices arises because the noticing lawyer often does not know what information exists.
The lawyer should be careful not to issue an objectionable, overly broad notice. A deposition notice may be held overly broad and unduly burdensome if the information sought is greater than necessary for the litigation, and the court may consider the matters designated, the relevance to the litigation, the amount of review required by the deponent organization to prepare for the deposition, and whether the information is available from other sources.[7] The matters designated in the notice cannot be limitless and should be calculated to lead to the discovery of admissible evidence.[8] In some scenarios, "including but not limited to" language could be improper if it places too great of a burden on the deponent organization to designate its witnesses.[9] If possible, a noticing party should consider limiting the matters to a finite but relevant time period.[10]
Some general categories to consider for a 30(b)(6) deposition are: policies, procedures, training, facts, corporate hierarchy, human resources, hiring and firing, certification and licensing, insurance, maintenance, inspection, security, finances and accounting, records retention, identities of witnesses, and facts and events. However, these general categories may require modification to fit a particular case. This list is not by any means exhaustive. Also, while some categories on this list may be appropriate for one case, they may be too broad or irrelevant in another. Finally, a lawyer preparing a 30(b)(6) notice should consider the elements of the causes of action raised in the complaint and the defenses raised in the answer when deciding which matters to explore.
The notice need only designate, with reasonable particularity, the topics for examination.[11] In response to the notice, the organization must designate one or more individuals to testify on its behalf, who must have knowledge of the subjects described in the deposition notice.[12] These designated corporate deponents must be prepared to give complete, knowledgeable and binding answers.[13]
A subpoena shall advise a nonparty organization of its duty to make such a designation.[14]
Receiving the notice
Consider the purpose
The deponent organization is obligated to produce one or more 30(b)(6) witnesses "who [are] thoroughly educated about the noticed deposition topics with respect to any and all facts known to [the deponent organization] or its counsel."[15]
Inspect and object
A lawyer should make any objections to the scope or clarity of a 30(b)(6) notice subject matter prior to the deposition and not risk producing an insufficient witness. In Arctic Cat, Inc. v. Injection Research Specialists, Inc.,[16] the District Court of Minnesota granted, in part, a party's motion for sanctions against an organizational party that had produced a witness who could not fully respond to the subject matter of the deposition notice despite the organizational party alleging that the notice was vague.[17]
Duty to designate
The corporation's designee must be "knowledgeable about the subjects described in the notice" and the corporation must "prepare that witness to testify not just to his or her own knowledge, but the organization's knowledge."[18] In other words, the party seeking the Rule 30(b)(6) deposition "must designate the areas of inquiry with reasonable particularity, and the [corporation] must designate and adequately prepare the witness to address those matters."[19]
Corporations have a duty to make "a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter"[20] "If the rule is to promote effective discovery regarding corporations the spokesperson must be informed."[21] The corporation must provide a knowledgeable person, even if this means educating particular...
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