Utah Law Developments

JurisdictionUnited States,Federal
CitationVol. 33 No. 4 Pg. 22
Publication year2020
Utah Law Developments
Vol. 33 No. 4 Pg. 22
Utah Bar Journal
August, 2020

July, 2020

New Federal Local Rule Addresses Rule 30(b)(6) Issues

By Gregory D. Phillips

Imagine receiving a 30(b)(6) Notice in a lawsuit involving your largest client that has nearly 100,000 employees and has been in existence since the early 1900s. See Fed. R. Civ. P. 30(b)(6). The 30(b)(6) Notice is served by the plaintiff to your defendant client just twenty days before the court ordered discovery cutoff and has ninety-eight “topics,” including topics such as (1) “the factual and legal basis for each and every of the twenty-one affirmative defenses set forth in Defendant’s answer,” (2) the “terms of every product liability settlement entered into by Defendant since 1960 including Defendant’s strategy in deciding upon the terms for the settlement agreement,” and (3) the “factual and legal basis for every claim of privilege set forth in Defendant’s privilege log.”

In addition to the 30(b)(6) Notice, the propounding party’s counsel reminds you in the cover email serving the notice of your obligations set forth in cases such as Great American Insurance Co. of New York v. Vegas Construction Co., that the responding party is obligated

to educate an appropriate Rule 30(b)(6) designee to provide knowledgeable answers reasonably available to the corporation, which include information ascertainable from project files and documents in the repository, information from past employees, witness testimony and exhibits, or any other sources available to the corporation, including factual information learned through or from its counsel.

251 F.R.D. 534, 541 (D. Nev. 2008). The cover email ends with the reminder that your client may be barred from testifying at trial on any matters on which the company’s selected deponent had been unable or unwilling testify. See QBE Ins. Corp. v. Jorda Enters., 277 F.R.D. 676, 700 (S.D. Fla 2012).

Not being familiar with case law interpreting Rule 30(b)(6), you prepare written objections to several of the topics set forth in the 30(b)(6) Notice that you serve ten days before the deposition. In addition, rather than prepare a single corporate representative to testify and in an effort to avoid being barred at trial from providing testimony on claims and defenses, you decide to prepare three witnesses with different backgrounds, knowledge, and expertise to address the numerous topics to be discussed at the 30(b)(6) deposition believing that the presumptive seven-hour deposition limit will cumulatively apply to the deposition of all three corporate representatives.

You then show up at the deposition and opposing counsel informs you that your written objections...

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