The FRCP 30(b)(6) deposition is a powerful tool in commercial litigation. It allows a litigator to obtain the testimony of an entity, by requiring that entity to designate one or more witnesses to provide testimony on particular topics.
Rule 30(b)(6) provides:
“. . . In its notice of subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf….”
(Emphasis added).
The Rule may have been intended to “curb the ‘bandying’ by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it.” (Notes of Advisory Committee on Rules – 1970).
Unfortunately that is not how the Rule often works in practice.
Many litigators have had the frustrating experience of showing up to a deposition with a witness who is ill-prepared, lacks knowledge, or is otherwise an unfit deposition designee.
To make sure that your next Rule 30(b)(6) deposition is effective, keep the following tips in mind:
1. Keep up your obligations under the rule. Designate in the deposition notice the areas that you would like to cover with particularity. Avoid the urge to use “including but not limited to” language – that language does not provide clear parameters for the testimony about which you expect your deponent to be knowledgeable.
2. Cover your bases. Although the rule requires the party taking the deposition to state with particularity the topics to be covered, it does not require brevity. There are no limitations on the number of topics that you can list (within reason, of course).
3. Enforce your rights. Deponents who fail to produce a knowledgeable 30(b)(6) designee are potentially subject to a variety of sanctions – from being treated as a failure to appear, to a finding that the responsive party is in contempt, to a dismissal or default judgment.
Forethought and effective enforcement are the keys to a successful Rule 30(b)(6) deposition.
FOS’s attorneys have extensive experience noticing and conducting effective Rule 30(b)(6) depositions, and can help you do the same.
