Bar News - December 13, 2013
Business Law & Business Litigation: Corporate Designee Depositions: A Potent Weapon in the Discovery Arsenal
By: Donald E. Frechette
Using depositions under federal Rule 30 (b)(6), you can force the corporate defendant in your federal lawsuit to investigate itself and deliver to you a key witness who must have all the information “reasonably available” to the company.
You’ve brought a lawsuit against a corporation in federal court. Wouldn’t it be great if you could cause the company to investigate itself, conduct interviews with potentially key witnesses (including third-parties), review relevant documents, and then tell you all about it? Under Federal Rule of Civil Procedure 30 (b)(6), you can do just that.
Rule 30 (b)(6) provides that a party can name a corporation, partnership, association, governmental agency, or other entity as a deponent and describe “with reasonable particularity” the matters for examination. The organization must then designate one or more persons to testify on its behalf, and, according to the rule, those persons “must testify about information known
or reasonably available to the organization” (emphases added).
In short, the party taking a Rule 30(b)(6) deposition – commonly referred to as a “corporate designee” deposition – is required to provide the deponent with some advance notice of the subject matter of the deposition, and to do so with some reasonable degree of specificity. The deponent must then designate someone (or multiple people) to testify about these topics. More important, though, and as observed by the New Hampshire federal district court in Philbrick
v. Enom Inc., the “entity producing a witness for a Rule 30(b)(6) deposition must ensure that [such person]... has been educated on what the entity, as a corporate personage, ‘knows’ or could reasonably find out.”
Courts interpreting Rule 30 (b)(6) have repeatedly made it clear that an organization doesn’t fulfill its responsibilities simply by designating a “warm body” and hoping for the best. Instead, the organization has an affirmative duty to fully prepare its designees so that they can provide knowledgeable and binding answers on behalf of the organization.
Put differently, the rule calls upon an organization “to create an appropriate witness or witnesses from information reasonably available to it if necessary.” as stated in QBE
Ins. Co. v. Jorda Enter. Inc (emphasis added). In so doing, the organization must “make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the party noticing the deposition] and to prepare those persons [so]... that they can answer fully, completely, unevasively, the questions posed... as to the relevant subject matters,” the court wrote in Securities & Exchange Comm’n v. Morelli.
The organization’s responsibility to prepare its witnesses is far-reaching. For example, many courts have observed that Rule 30 (b)(6) requires that the designee review “all corporate documentation that might have a bearing on the [designated]... topics.” See,
e.g., Calzaturficio S.C.A.R.P.A. SPA v. Fabiano Shoe Co. Inc. Case law alsoo establishes that the organization, in an appropriate case, may also be compelled to have the witness review previous deposition transcripts and exhibits, or consult with present or past employees. And it is no excuse that the documents necessary to educate the witness are voluminous or that their review will be burdensome. (Calzaturficio, supra, emphasis in original; citations and internal quotations omitted).
The examination of a Rule 30 (b)(6) designee is not limited to available facts. Instead, and as noted in United States v. Taylor, a 30 (b) (6) deponent can also be called upon to testify about the organization’s subjective beliefs and opinions, its interpretation of documents and events, or to explain why the organization acted, or failed to act, in a particular manner.
As QBE held, under Rule 30 (b)(6), if an organization’s witness “legitimately lacks the ability to answer relevant questions on listed topics and the [organization] cannot better prepare that witness or obtain an adequate substitute, then the ‘we-don’t-know’ response can be binding on the organization and prohibit it from offering [contrary] evidence at trial on those points.” Similarly, if a designee testifies that the organization does not know the answers to the questions, the corporation “will not be allowed effectively to change its answer by introducing evidence at trial.” Id.
Rule 30 (b)(6) serves two primary purposes. First, it avoids the wasteful (and potentially obstructive) practice of the organization producing multiple officers or employees for deposition, each of whom points to someone else as the more appropriate individual to provide the requested testimony (often referred to as “bandying”). Using Rule 30 (b)(6), the deposing party need merely inform the organization of the deposition’s topic areas, after which the burden will fall to the organization to determine who should be designated to give binding answers on its behalf. And, while many lawyers issue deposition notices for the “person most knowledgeable,” Rule 30 (b)(6) contains no such requirement. To the contrary, the designee(s) are not required to have any personal knowledge with respect to the designated testimony.
Second, and perhaps of greater importance, the rule prevents an organization from “sandbagging” its opponent by conducting a half-hearted inquiry before the deposition, but then thoroughly preparing for trial. Consequently, courts have recognized that the failure of an organization to provide a fully prepared witness is “tantamount to a failure to appear at [the] deposition” (Starlight
Int’l v. Herlihy). In these situations, courts can impose a variety of sanctions ranging from an award of costs to preclusion of the testimony or even the entry of a default.
For attorneys seeking to depose an organization, Rule 30 (b)(6) presents a valuable opportunity. If used effectively, the deposing party can shift much of the discovery burden to the deponent by having it investigate itself, search for relevant documents, and then report the results of those efforts through binding deposition testimony. The deposing party should think carefully about the scope of the deposition topics and work diligently to describe them with particularity. In such cases, the organization will be on notice of the deposition’s scope, and Rule 30 (b)(6) will compel it to provide a fully knowledgeable designee to testify on the designated topic(s).
For organizations that are on the receiving end of a Rule 30 (b)(6) notice of deposition, the cases clearly make the point: The organization’s witnesses must be fully prepared with whatever information is reasonably available. Failing to so prepare the witness may have serious consequences, even to the point of the corporation being precluded from testifying in its own defense.
Donald Frechette is a partner in the Hartford office of Edwards Wildman Palmer LLP. He has been a member of the New Hampshire bar since 1983, and practices primarily in the field of commercial litigation.