Fury Bailey - Personal Injury - Wrongful Death Attorneys

RULE 30(b)(6) DEPOSITIONS OF CORPORATE DEFENDANTS

By C. Steven Fury

Fury Bailey

1218 Third Avenue, Suite 1300

Seattle , WA 98101-3021

(206) 292-1700

Civil Rule 30(b)(6) is one of the great equalizers assisting an individual plaintiff to even the playing field against the largest corporation. When properly used it can be a most effective tool in a discovery arsenal against a corporate defendant. A Rule 30(b)(6) deposition notice requires a corporate defendant to produce a witness who is obligated to know everything a corporation knows on a subject . The witness must testify "fully, completely and un-evasively" and be prepared by the corporation to "give complete, knowledgeable and binding answers on behalf of the corporation." Through proper use of a Rule 30(b)(6) deposition, a corporate witness can be required to attempt to justify a corporation's actions. This can be especially fun when the corporate defense lawyer has pled a kind of inconsistent, alternative or hypothetical defenses permitted by CR 8(e)(2).

A corporate defendant is required to produce a knowledgeable witness. Repeated answers of "I don't know" can be considered "tantamount to a failure to appear" and, if deemed egregious by the Court, subject the corporation to sanctions.

Because some defense counsel are well-aware of the great boon the Rule 30(b)(6) deposition can be to the plaintiff, they interpose a flurry of objections and obstruction. It is useful to know that what little judicial gloss there is on the rule, almost all of it favorable to the party taking the corporate deposition.

THE LAW

A. History.

Before the 1970's amendments to the Federal Rules of Civil Procedure, a party seeking to take the deposition of a corporation had to note the deposition of an officer, manager or other employee and hope that this witness was the knowledgeable witness. This led to the practice, still employed by corporate defendants, of "bandying" the deposing lawyer around the corporation by witnesses repeatedly answering "I don't know, and don't know who does" to crucial questions. It was in part to curb this practice that Rule 30(b)(6) was adopted. E.g., United States v. Taylor , 166 F.R.D. 356, 360 (M.D.N.C. 1996); SEC v. Morelli , 143 F.R.D. 42 (S.D.N.Y. 1992); Advisory Committee Notes to Rule 30(b)(6).

B. The Rule.

Civil Rule 30(b)(6) provides:

A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. 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 known on which he will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to the matters known or
reasonably available to the organization. This subsection (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

C. The Notice.

A party wishing to take the deposition of a corporation, particularly a plaintiff taking the deposition of a corporate defendant, must be careful in drafting the deposition notice. The notice must comply with the usual deposition notice requirements identifying time and place and giving reasonable notice. For a non-party deponent, it must inform the corporation of the duty to designate a witness. This is usually a good practice for any corporate deponent.

Most importantly, the deposition notice must "designate with reasonable particularity the matters on which a examination is requested." To prevent having a witness who will give no information, it is important to be sufficiently specific in identifying the topics, but the notice need not list every question which will be asked. Some examples of Rule 30(b)(6) notices used in various types of cases are attached.

D. Corporate Deponent's Obligation.

The rule means what it says. The corporate deponent " shall designate " a witness to testify on the subjects. The witness can be an officer or managing agent or anyone else who will consent to testify on behalf of the corporation. The corporation may designate more than one witness to respond to the 30(b)(c) motion, particularly when there is more than one topic identified.

Although the rule is silent on the question, I think it can be helpful to attempt to get a designation of identity of the witnesses who will respond to the notice in advance of the day of the deposition. This way you can have an
idea of generally the identity of the witnesses and the number of witnesses to be deposed pursuant to the deposition notice. Sometimes you can do research on the background of the witness through media sources or previously produced documents.

In practice, the defense counsel cannot designate a Rule 30(b)(6) witness before receiving the notice designating the subjects on which a corporate witness is to testify. I usually prepare the 30(b)(6) notice designating the subjects, time and place and send it with a cover letter offering to reschedule to a time convenient the witnesses. This way I can learn who the witnesses will be in advance and be courteous with regard to scheduling.

E. Evasive "I Don't Know" Answers.

Designation of a witness by itself does not satisfy the corporation's obligation.

The witnesses shall be prepared to answer questions fully, un-evasively and completely about discoverable matters in connection with the subject or subjects for which they are designated.

FDIC v. Butcher , 116 F.R.D. 196, 202 (ED Tenn. 1986).

The corporation . . . must not only produce such number of witnesses 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.

Marker v. Infidelity Life Ins. Co. , 125 F.R.D. 121, 126 (M.D.N.C. 1989).

Producing an unprepared witness is tantamount to a failure to appear.

United States v. Taylor , 166 F.R.D. 356, 363, aff'd 166 F.R.D. 367 (M.D.N.C. 1996) (citing Resolution Trust Corp. v. Southern Union , 985 F.2d 196, 197

(5th Cir. 1993); Bank of New York v. Meridian Biao Bank Tanzania , 171 F.R.D. 135 (S.D.N.Y. 1997).

If the witness produced is unprepared and unable to answer the questions within the designated topic, the defendant is required to produce a new witness "even if defendant in good faith thought that the [witness designated] would satisfy the deposition notice, it had a duty to substitute another person once the deficiency of its Rule 30(b)(6) designation became apparent during the course of the deposition.

Marker , supra , at 126.

Egregious and repeated failure to designate and prepare a witness who can answer fully under the rule can lead to sanctions pursuant to Rule 37. Bank of New York , supra , at 151; Commodities Future Trading Comm'n v. Noble Metals International, Inc. , 67 F.3d 766, 771 (9th Cir. 1995); cert. denied 117 Sup. Ct. 64 (1996). Where a corporation is unable to designate a witness because no one in the corporation knows or where anyone within the corporation who does know would invoke the 5th Amendment privilege against self-incrimination, the corporation is under a duty to seek a protective order. See , United States v. Cordell , 397 U.S. 1, 9 (1970).

Sometimes evasive or "I don't know" answers can be helpful to the plaintiff. For example, in a product liability case plaintiff might ask:

Q. What steps did XYZ Corporation take to investigate safer alternative designs before manufacturing the product?

An answer of "I don't know" can be helpful. If the corporation does not know what, if any, investigation it did in alternative safer designs, this can be
negligence. The answer, however, must be pinned down to implicate the corporation with a question such as:

Q. And because you are here today answering on behalf of XYZ Corporation, your answer means that XYZ Corporation does not know, is that correct?

The deponent hat to answer "Yes."

F. Tactical Issues.

1. Contentions.

Often we ask interrogatories seeking the information concerning the contentions being made by the defendant, including interrogatories to identify all facts upon which the defendant relies in asserting its affirmative defense of comparative negligence, third party fault, etc. Interrogatories are answered by lawyers. Rarely do I ever get useful and clean answers to interrogatories. They come with a string of objections, qualifications and obfuscations, the purpose of which is to waffle on any subject. Such answers in the 30(b)(6) deposition would not be the type of "full, complete and un-evasive answers" required by the cases interpreting Rule 30(b)(6). A Rule 30(b)(6) deposition notice can designate as a subject:

Defendants contentions with regard to its allegation of plaintiff's comparative negligence.

The notice requires the defendant to produce a witness on this subject who is fully knowledgeable and prepared to answer questions. Defendant's contentions are a subject which must be within the knowledge of a corporate defendant. Rule 11 requires that a party's allegations be “well grounded in fact and . . . warranted by existing law . . .” Under the rules and case law, production of a witness who can explain the corporate defendant's contentions should be required.

It was precisely this issue, the contentions of the corporate plaintiff (the FDIC) in a civil lawsuit, that the court addressed in FDIC v. Butcher , 116 F.R.D. 196 (ED Tenn. 1986). The holding required the FDIC to produce a witness who will testify in detail concerning the FDIC's claims . Whatever the witness answers may be "binding answers on behalf of the corporation." Marker , supra , at 126.

A corporate defendant's assertion that it has or will answer interrogatories with regard to a given subject cannot prevent inquiry into that subject by deposition under Rule 30(b)(6):

Nothing in the Federal Rules of Civil Procedure give the party the right to not respond or inadequately respond to a Rule 30(b)(6) deposition notice or subpoena request and elect to supply the answers in written response to an interrogatory. An attempt to so limit a Rule 30(b)(6) deposition is not warranted. Because of its nature, the deposition process provides a means to obtain more complete information and is, therefore, favored.

Marker , supra , 125 F.R.D. at 126.

2. Multiple Depositions.

Even after the adoption of Rule 30(b)(6), Rule 30(b)(1) permits deposition of corporate officers and managing agents as a alternative method of taking depositions where the testimony is binding on the corporation. Depositions of officers and managing agents are admissible in evidence even if the witness is not designated pursuant to Rule 30(b)(6). CR 32(a)(2). These rules can permit a plaintiff to effectively take the deposition of a corporate defendant more than once. For example, the plaintiff can take the deposition of a Rule 30(b)(6) witness with the designated subjects and later take the deposition of the corporate president,
assuming he or she was not designated as a Rule 30(b)(6) witness. Further, there is nothing in the rule prohibiting more than one 30(b)(6) deposition on separately designated subjects. While the Court plainly has authority to enter a protective order if it appeared that serial Rule 30(b)(6) depositions were for harassment or cumulative, the rules does not require that all subjects on which a corporation will be examined be designated in one deposition notice.

Once a corporate party has produced a Rule 30(b)(6) witness on certain subjects, that witness is available to be asked any question relevant in the case. The defendant cannot prevent inquiry into other areas beyond the scope of the Rule 30(b)(6) subjects:

Rule 30(b)(6) cannot be used to limit what is asked of a designated witness at a deposition. Rather, the rule simply defines a corporation's obligations regarding when they are obligated to produce for such a deposition and what that witness is obligated to be able to answer.

King v. Pratt & Whitney , 161 F.R.D. 475, 476 (S.D. Fl. 1995). Accord, Moore 's Federal Practice 3d §30.25[4] . However, if a designated witness is asked questions beyond the matters designated, "then that is the examining parties problem." King , supra , at 476.

3. Notice As Exhibit.

The deposition notice is a useful exhibit to a 30(b)(6) deposition. You can use it to inquire into the preparation of a witness, and to make sure that the witness has read it and is prepared to respond to each and every subject. You can confirm with the witness that he or she is responding not personally, but on behalf of the corporation and the answers are binding on
the corporation. The deposition notice can also be used as a leash to pull witness back and require an answer to a subject listed when there is an attempt to equivocate or evade.

Other useful 30(b)(6) deposition exhibits are the pleadings. This is especially helpful with a corporate witness who is designated to testify concerning the corporate defendant's contentions. Defense lawyers deny liability as a knee jerk reaction to receiving a complaint. In a rear-end car crash case where there is a corporate defendant employer of the driver, attach the answer as an exhibit then ask:

Q. What facts does XYZ Corporation rely on in denying liability in this case?

* * *

Q. Can you state any good faith basis on which XYZ Corporation denies responsibility for this accident?

Sitting through a 30(b)(6) deposition where such questions are asked can be discomfiting to the defense lawyer.

A Rule 30(b)(6) deposition is especially powerful when used in combination with a Rule 43(f) notice to compel the attendance of a corporate manager in the State of Washington .

But see SEC v Morelli , 143 F. R. D. 42 (S.D.N.Y. 1992) in which the court held that a Rule 30(b)(6) deposition notice identifying contentions as subjects impermissibly sought work product information and limited such discovery to contention interrogatories.

But see, Paparelli v. Prudential Ins. Co. , 108 F.R.D. 727 (D. Mass. 1985) which reaches opposite conclusion and holds that a Rule 30(b)(6) designated witness may not be asked questions outside the scope of the notice.

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