The 30(b)(6) Witness
posted by Laura Heymann
Although I don’t teach or write in the area of civil procedure, my days as in-house counsel gave me a certain amount of exposure to how civil litigation affects corporate defendants. Which leads me to ask a small but nagging question: Should Rule 30(b)(6) be reconsidered?
As many readers may know, Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that a party may notice a corporation as a deponent on one or more issues; the corporation must then designate one or more employees (described in the rule as “officers, directors, or managing agents, or other persons”) to testify on behalf of the corporation on each of those issues. Because the 30(b)(6) witness testifies on behalf of the corporation, and not on her own behalf, she is obligated to become educated on “matters known or reasonably available to the organization.” If the 30(b)(6) witness cannot answer the questions for which she has been designated, the corporation is deemed to have failed to comply with the rule and may be required to produce another witness or, in some cases, be subject to sanctions. “I don’t know,” it is argued, is not a proper answer for a 30(b)(6) witness to give.
Of course, even when the subject matter in a deposition notice is narrowly drawn and a witness is well chosen, no employee is going to possess all of the corporation’s knowledge on that topic. Accordingly, much time is spent loading up the 30(b)(6) witness in lawyer-driven preparation sessions with the information the legal team has been able to gather from documents, other employees, and so forth. The poor witness then has to hope that she recalls all of this recently acquired information and can respond intelligently to questions posed during the deposition as to what the corporation “knows” about the topic. It’s a bit like telling the actor who plays Rosencrantz that he’s going to be performing the entirety of Hamlet as a monologue come Friday evening.
The purpose behind the rule is to prevent a situation in which each of a corporation’s employee-deponents disclaim personal knowledge of facts that are known to someone in the organization, leaving the plaintiff stymied in his attempt to gain relevant evidence. But without conscientious implementation, the rule risks serving as a heavy-handed litigation tactic in which a skillful attorney can get the 30(b)(6) witness to make admissions on behalf of the corporation largely as a result of her own uncertainty about her role and the pressure of expected omniscience.
Given that so much of the information funneled through the 30(b)(6) witness is the result of the efforts of counsel, wouldn’t a series of written interrogatories (or requests for admissions) accomplish the same goal with much less trauma for the unlucky 30(b)(6) designee? Or is the nature of a live deposition — which allows for narrow, fact-specific questions and the ability to pose follow-ups that depend on the answers provided — something that simply cannot be duplicated in written form?
(For anyone who is interested, at least one article addresses this question head-on: Kent Sinclair & Roger P. Fendrich, Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(B)(6) and Alternative Mechanisms, 50 Ala. L. Rev. 651 (1999).)
April 18, 2006 at 7:08 pm
Posted in: Law Practice
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Responses (8)
Ben Barros - April 18, 2006 at 9:43 pm
In academia, I’m not a civ pro person either, though I was a corporate litigator in my previous life. I can’t imagine life without 30(b)(6). Sure, the deposition notices can be overbroad and cumbersome, but it is very helpful to have an entity appoint one person as a knowledgeable spokesperson on a particular issue. I don’t think that interrogatories would be a good substitute because they are completely the work of lawyers — a 30(b)(6) witness can be prepared by counsel, but still has to engage in a give and take with the questioning attorney. The judge for whom I clerked didn’t allow interrogatories at all, calling them “slick lawyers’ answers to lazy lawyers’ questions.”
Ben Barros - April 18, 2006 at 9:46 pm
In academia, I’m not a civ pro person either, though I was a corporate litigator in my previous life. I can’t imagine life without 30(b)(6). Sure, the deposition notices can be overbroad and cumbersome, but it is very helpful to have an entity appoint one person as a knowledgeable spokesperson on a particular issue. I don’t think that interrogatories would be a good substitute because they are completely the work of lawyers — a 30(b)(6) witness can be prepared by counsel, but still has to engage in a give and take with the questioning attorney. The judge for whom I clerked didn’t allow interrogatories at all, calling them “slick lawyers’ answers to lazy lawyers’ questions.”
anon - April 18, 2006 at 11:07 pm
The caselaw expects far too much of a 30(b)(6) witness. Basically, the caselaw is so lopsided that any time a 30(b)(6) witness says “I don’t know” the party taking the deposition has a colorable sanctions motion. OK, I’m exaggerating, but just barely.
Although interrogatories aren’t always a perfect substitute for the 30(b)(6) witness, there are circumstances when they convey essentially the same information without the waste of a deposition. I’ve had to defend a 30(b)(6) deposition, for example, in which the topics covered predated the personal knowledge of everyone at the company. So we prepared the witness (who was flown in from half-way across the country) with documents, which had already been turned over to the other side, and with our interrogatory responses, which the other side also had.
It was a silly–and very expensive–kabuki theater. And our adversary still moved to sanction us when the witness didn’t have perfect recollection of the facts we had already disclosed!
SobekPundit - April 19, 2006 at 12:30 am
I think that especially in the context of an uncooperative corporation, interrogatories simply can’t get the job done.
Without divulging any details, we asked a certain bank to freeze an account in litigation. We found out maybe a month later they never froze the account, and our Defendant all but drained it in the interim, seriously compromising our chances of recovery. In such a situation, the bank knows it just screwed up big time, and without the ability to pin down the person responsible during a live depo, we’re never going to get the information we need.
The solution to the problem you raise is to have the corporation send over as many PMKs as necessary to focus on the discrete issues within their particular knowledge. We’re not going to subpoena the bank’s branch manager, or any tellers, or a security guard, or even the gal in charge of producing subpoenaed documents — we’re going to depose the people in the office in charge of freezing accounts, and we know damn well they know all the facts.
Discovery abuse is, I think, best avoided by judges who are sensitive to the possibility of abuse, not by tying the lawyers’ hands with a Rule 30 change.
Thaddeus Pope - April 19, 2006 at 3:23 pm
When I was a litigator, I had much more experience with the Califonia equivalent of 30(b)(6), CCP 2030. At least under the state rule, the deponent company would and could provide multiple witnesses. In other words, there is no need to “load up” one witness with responsive information on all the noticed topics. Just bring three witnesses.
I used the PMK deposition many times. I viewed it as an ESSENTIAL discovery tool. Sometimes there was no time to wait for interrogatory responses to then notice depos. (That could delay depos by 4-6 weeks, much longer if the party refuses to answer or answer appropriately.) Also, interrogatories cannot help identify the right witnesses where the deponent is a nonparty.
Laura Heymann - April 19, 2006 at 3:29 pm
My understanding is that the corporation can identify multiple witnesses for any topic under the federal rule as well, and I didn’t mean to suggest otherwise. It is still likely the case, however, that a 30(b)(6) designee is going to have to be educated on what may be a considerable amount of information, particularly when there is no current employee who can speak from personal knowledge on some facet of a given topic.
anon - April 19, 2006 at 6:12 pm
Isn’t the remedy for this to object to the 30(b)(6) notice that names an outragous number of areas as unduly burdensome?
yclipse - April 19, 2006 at 6:25 pm
I think it behooves the corporation’s attorney to contact the requesting attorney to ascertain what it is that she is looking for and offering to assist to locate the right people to assist. I cannot think of a better way to avoid any sanctions motion than such a request and offer, made in writing.
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