general description sufficient to identify
the person or the particular class/group
to which the person belongs." The notice
must state the method by which the
deposition will be recorded video, court
reporter or otherwise. The designated
corporate representative is not required
to possess first-hand knowledge of the
designated topics but can rely upon "a
review of corporate records and inquiries
within the corporation."
with sufficient knowledge, the court can
strip the responding corporation of its
right to designate and compel a specific
representative to appear.
by a Rule 34 request for production or
inspection. The notice "must describe with
reasonable particularity the matters for
examination."
Rule to effectively function, the requesting
party must take care to designate, with
painstaking specificity, the particular
subject areas that are intended to be
questioned, and that are relevant to the
issues in disputes."
seek clarification regarding the areas of
inquiry contained within the F.R.C.P.
30(b)(6) notice. A Motion for Protective
Order may be required to limit and/or
clarify the scope and nature of the areas
of inquiry designated in the F.R.C.P. 30
(b)(6) notice. Pre-deposition discovery
motions and communications should set
clear boundaries regarding the areas of
inquiry to prevent in-depth questioning in
areas beyond the scope of the notice.
start of a corporate witness deposition
is inquiries into personal information,
such as home address, social security
number, salary or other sensitive personal
information. Anticipate these types of
questions and file and/or assert the proper
objections. Prepare the corporate witness
in advance and advise him or her exactly
how you will address these types of
questions.
with opposing counsel prior to the
corporate representative deposition is key
to a smooth deposition. Written objections
and Motions for Protective Order often
preempt opposing counsel's efforts to
improperly exceed F.R.C.P. 26 discovery.
If necessary, a F.R.C.P. 30(d)(3) Motion
to Terminate the Deposition should be
considered if opposing counsel continues
with objectionable behavior, tactics or
inquiries.
Most corporations have experienced
"go to" corporate representative
witnesses. Even experienced corporate
representatives need to be comfortable
and aware of their verbal and non-verbal
communication. If you do not already,
consider videotaping witnesses during
their deposition preparation sessions.
Showing a deponent how they are
performing is often more effective than
telling them about their testimony and
non-verbal cues.
Regardless of whether your corporate
representative witness is experienced
or not, it is imperative that the witness
understands their role as the "voice" of the
company and the difference between being
deposed individually as opposed to as a
corporate representative.
of the deposition. Lack of adequate
preparation in advance of the deposition
can lead to the imposition of sanctions.
not expressly or implicitly require a
corporation or entity to produce the
person "most knowledgeable" regarding
designated areas of inquiry, a corporation
is required to make a good faith effort to
designate appropriate persons and prepare
them to answer fully and non-evasively
questions within the designated areas of
inquiry.
a F.R.C.P. 30(b)(6) deposition may be
required to designate supplemental
witnesses.
all questions within designated areas
of inquiry does not equate to a failure
to comply with its F.R.C.P. 30(b)(6)
obligation.
preparation process, the corporate
witness will review documents. Unless
the documents reviewed are attorney-
client or otherwise privileged, it is
likely the documents reviewed will be
discoverable.
selection and compilation theory of the
work-product doctrine. Under this theory,
the legal skill and analysis provided
by counsel in sorting and compiling
documents for review by the 30(b)(6)
witness may reflect the attorney's strategy
and thought process and therefore be
excluded from production.
documents shown to a 30(b)(6) witness
during the deposition preparation process.
In conclusion, it is essential that
a corporate deponent receive the
preparation necessary to provide
responsive and effective testimony in a
F.R.C.P. 30(b)(6) deposition.
2 McPherson v. Wells Fargo Bank, N.A., 292 F.R.D. 695,
5
Memory Integrity, LLC v. Intel Corp., 308 F.R.D. 656, 661
L.P. v. TheGlobe.com, Inc., 236 F.R.D. 524 at 528 (D.
Kansas 2006).
F.R.C.P. 30(b)(6) notice. Paparelli v. Prudential Ins. Co.
of America, 108 F.R.D. 727 (D. Mass. 1985) reflects a
narrow construction limiting inquiries to only those areas
of requiring listed in the 30 (b)(6) notice. In contrast,
other courts opine that the F.R.C.P. 30(b)(6) notice is
limited in scope only by the general rules of Discovery in
Rule 26. See, for example, King v. Pratt & Whitney, 161
F.R.D. 475 (S.D. Fla. 1995).
a concise definition of a F.R.C.P. 30(b)(6) witness.
30(b)(6) designee is sanctionable based on lack of
good faith, prejudice to opposing side and disruption of
proceedings).
11 Costa v. County of Burlington, 254 F.R.D. 187, 191
Del. 1992).