Federal Rule of Civil Procedure 30(b)(6)

Rule 30(b)(6) of the Federal Rules of Civil Procedure, along with analogous rules under state law, provides a tremendous discovery tool for litigators. Unlike the depositions of named witnesses, depositions under Rule 30(b)(6) require that an organization designate and prepare an individual to testify as to all delineated information “known or reasonably available to the organization” – not merely information personally known to the deponent – and offer testimony that is binding on the organization. When used properly, 30(b)(6) depositions can render “I don’t know” answers a rarity, while offering an incredibly effective mechanism for fact-finding and efficiently progressing the underlying litigation. This article is designed to provide a general overview of the 30(b)(6) device, as well as offer insight as to the duties of counsel when proceeding under Rule 30(b)(6), and the distinctions between a 30(b)(6) deposition and a deposition of a named witness.[1]

Under Rule 30(b)(6), a party may name as a deponent, via notice or subpoena, “a public or private corporation, a partnership, an association, a governmental agency, or other entity . . . .” Fed. R. Civ. P. 30(b)(6). This option should be distinguished from naming a natural person as a deponent, which is how typical depositions ordinarily proceed. According to the Advisory Committee, Rule 30(b)(6) was designed, in part, to remedy a tactic called “bandying,” in which officers or managing agents of a corporation disclaim knowledge of facts that are “clearly known to persons in the organization and thereby to it.” Fed. R. Civ. P. 30(b)(6) Advisory Committee’s Note to 1970 Amendment (citing Haney v. Woodward & Lothrop, Inc., 330 F.2d 940, 944 (4th Cir. 1964)). It was also created to prevent organizations from being subjected to several depositions by an examining party unsure of who has relevant knowledge, and to enable organizations to exercise more control by designating and preparing witnesses to testify on their behalf. Id.

Duties of the Noticing Party

In order to take a 30(b)(6) deposition, a party must simply notice or subpoena the organization to be deposed, and “describe with reasonable particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6). While this task may seem straightforward enough, its significance should not be taken for granted. Courts have described the duty as requiring “painstaking specificity.” See, e.g., E.E.O.C. v. Thorman & Wright Corp., 243 F.R.D. 421, 426 (D. Kan. 2007). Overly broad or unduly burdensome topics may subject a noticing party to a motion for protective order under Rule 26(c), or a motion to quash under Rule 45(d)(3). See, e.g., Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D, 2017 WL 5919625, at *5-7 (E.D.N.C. Nov. 30, 2017) (granting in part and denying in part a motion to quash a 30(b)(6) subpoena); Moses H. Cone Mem’l Hosp. Operating Corp. v. Conifer Physician Servs., No. 1:13-CV-651, 2016 WL 4007605, at *4 (M.D.N.C. July 26, 2016) (granting in part and denying in part a motion for protective order regarding a 30(b)(6) deposition notice). In addition to avoiding the risk of facing a motion for protective order or a motion to quash, a noticing party should seek to tailor the notice to ensure that all testimony provided is binding on the organization-deponent, and not merely provided in the designee’s personal capacity. See Duke Energy Progress, Inc. v. 3M Co., No. 5:08-CV-460-FL, 2014 WL 7182580, at *2-4 (E.D.N.C. Dec. 16, 2014).

Duties of the Deponent-Organization

Upon receiving a 30(b)(6) notice or subpoena, an organization should first notify the serving party as to any objections it may have to the topics described therein, if applicable. Such objections may be based on the serving party’s failure to describe the topics “with reasonable particularity,” as set forth above, or on some basis that may otherwise preclude discovery under Rule 26(b), such as privilege, lack of relevancy to the case, or violation of the court’s case management order.[2] Ideally, the organization and the serving party can come to an agreement as to how to refine the scope of the deposition, if necessary, thereby allowing the serving party to issue an amended notice or subpoena. If the organization and the serving party cannot amicably resolve the scope of the 30(b)(6) notice or subpoena, the organization can consider notifying the court of its objections, allowing the court to determine whether, and on which topics, the deposition should proceed. See, e.g., Indem. Ins. Co. of N. Am. v. Am. Eurocopter LLC, 227 F.R.D. 421, 426 (M.D.N.C. 2005). Failure to resolve the issue by agreement, or by court order, will not allow the organization to unilaterally object and/or ignore the notice or subpoena; in such cases, the organization must produce a witness prepared to testify to the subject matters described in the notice or subpoena. See Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 406 (E.D.N.C. 2014); E.E.O.C. v. Thurston Motor Lines, Inc., 124 F.R.D. 110, 114 (M.D.N.C. 1989).[3]

After determining the subject(s) of the 30(b)(6) deposition, an organization served with a 30(b)(6) notice or subpoena must “designate one or more officers, directors, or managing agents, or . . . other persons who consent to testify on its behalf.” Fed. R. Civ. P. 30(b)(6). The organization should then “set out the matters on which each person designated will testify.” Id. The designees must testify “about information known or reasonably available to the organization.” Id. There are a few components to unpack here. First, an organization may designate multiple witnesses to testify – and each witness may “testify to as few or as many of the provided topics” as the organization chooses. Eshelman, 2017 WL 5919625, at *6. Second, regardless of how many witnesses the organization designates, a single notice of deposition counts as just one deposition. Quality Aero Tech., Inc. v. Telemetrie Elektronik GmbH, 212 F.R.D. 313, 319 (E.D.N.C. 2002).[4] Third, and sometimes overlooked, upon designating witnesses to testify, an organization has an affirmative duty to adequately prepare and educate each witness “so that they may give complete, knowledgeable and binding answers on behalf of the [organization]” – regardless of whether each witness previously had sufficient personal knowledge.[5] Wilson Land Corp. v. Smith Barney, Inc., No. 5:97-CV-519, 2001 WL 1745241, at *5 (E.D.N.C. Aug. 20, 2001) (citation omitted). “[T]he duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved.” United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.), aff’d, 166 F.R.D. 367 (M.D.N.C. 1996). The designee is there to present “the [organization’s] ‘position’ on [each] topic,”[6] and even if nobody at the organization has knowledge about the subjects of the deposition, the organization needs to prepare its designee “to the extent matters are reasonably available.” Id. “Producing an unprepared witness is tantamount to a failure to appear,” and may subject an organization to sanctions under Rule 37(d), or the court’s inherent power to sanction. Id. at 363; see also Universal Furniture Int’l, Inc. v. Collezione Europa, USA, Inc., 599 F. Supp. 2d 648, 660 (M.D.N.C. 2009), aff’d, 618 F.3d 417 (4th Cir. 2010). In such cases, the organization must also provide a substitute for the deficient designee. See Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989).

Deciding Whether to Proceed Under Rule 30(b)(6)

In light of the unique features of Rule 30(b)(6), deciding whether to proceed with a 30(b)(6) deposition, instead of an ordinary deposition of a named witness, depends largely on the facts and circumstances of each case. Each approach offers distinct advantages and disadvantages. On the one hand, 30(b)(6) depositions enable the noticing party to describe in advance the topics of the deposition, while requiring the deponent-organization to adequately prepare its designee(s) to testify as to such topics – these elements make questions more difficult to evade for the designee(s), and help minimize “I don’t know” responses. On the other hand, by requiring advance notice of the topics of the deposition, 30(b)(6) depositions eliminate a degree of the “element of surprise” as to the questions that will be asked at the deposition. Similarly, while 30(b)(6) depositions allow noticing parties to depose individuals who are (or should be) prepared to offer substantive testimony, they do not allow the selection of a particular named witness, which may result in the “cherry-picking” of a difficult or otherwise problematic witness by opposing counsel. Depositions under Rule 30(b)(6) also offer a broader array of information available to the deponent-organization than a named witness can likely provide; testimony that is binding on the deponent-organization (when used correctly); recourse when a witness fails to offer adequate testimony; and significant efficiencies in conducting discovery.

While deciding whether to conduct a 30(b)(6) deposition or a deposition of a named witness is a strategic assessment that will necessarily vary with each case, it is important to bear in mind that Rule 30(b)(6) does not establish any “prohibition on deposing a witness in both individual and corporate capacities.” LendingTree, Inc. v. LowerMyBills, Inc., No. 3:05-CV-153-C, 2006 WL 2443685, at *2 (W.D.N.C. Aug. 22, 2006). This not only helps a deposing party avoid seeking leave of court under Rule 30(a)(2)(A)(ii) to depose a witness twice, but also provides a means for both individual and organizational testimony. See Martin v. Bimbo Foods Bakeries Distribution, LLC, 313 F.R.D. 1, 8 (E.D.N.C. 2016) (stating that while a 30(b)(6) designee “testifies regarding the knowledge, perceptions, and opinions of the corporation,” the “same deponent [testifying] in his individual capacity . . . provides only his personal knowledge, perceptions, and opinions.”). The timing of such an approach is, naturally, another strategic consideration.

Conclusion

As outlined above, Rule 30(b)(6) offers litigators a powerful discovery mechanism. When used correctly, the device can provide advantages wholly unavailable in depositions of named witnesses. Attorneys taking or defending 30(b)(6) depositions should always be mindful of their duties and obligations, and should be aware that testimony provided by a 30(b)(6) designee may be used “for any purpose” in court proceedings. Fed. R. Civ. P. 32(a)(3).

[1] While this article analyzes the scope of Rule 30(b)(6) of the Federal Rules of Civil Procedure, its principles are generally applicable to Rule 30(b)(6) of the North Carolina Rules of Civil Procedure, since the rules employ similar language. Compare Fed. R. Civ. P. 30(b)(6) with N.C. R. Civ. P. 30(b)(6). The North Carolina Supreme Court has also provided that because “[t]he North Carolina Rules of Civil Procedure are, for the most part, verbatim recitations of the federal rules,” decisions made “under the federal rules are thus pertinent for guidance and enlightenment in developing the philosophy of the North Carolina rules.” Turner v. Duke Univ., 325 N.C. 152, 164, 381 S.E.2d 706, 713 (1989).

[2] An objecting organization should bear in mind, however, that the Federal Rules of Civil Procedure authorize very broad discovery. See Herbert v. Lando, 441 U.S. 153, 177 (1979); see also Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003) (“Discovery under the Federal Rules of Civil Procedure is broad in scope and freely permitted.”). As long as the discovery sought “appears reasonably calculated to lead to the discovery of admissible evidence,” it is typically permissible. Herbert, 441 U.S. at 157. Further, the “scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1); see also Capacchione v. Charlotte-Mecklenburg Sch., 182 F.R.D. 486, 489 (W.D.N.C. 1998).

[3] Resolving the scope of the subject matters listed on the deposition notice or subpoena is distinguishable from resolving the appropriate scope of questions asked during the deposition. It is not uncommon for the deposing party’s counsel to disagree with the deponent-organization’s counsel as to whether questions asked during the deposition fall outside the scope of the 30(b)(6) notice or subpoena. In these situations, it is always improper for counsel for the deponent-organization to instruct the witness not to answer a question on the grounds that it is outside the scope of the 30(b)(6) notice or subpoena – the appropriate course of action is to attempt to resolve the dispute with opposing counsel, and if that is not possible, then to object that the question is outside the scope of the 30(b)(6) notice or subpoena, and state on the record that the testimony provided by the witness is being provided in the witness’s personal capacity, and is not binding on the organization. See Duke Energy Progress, Inc., 2014 WL 7182580, at *4.

[4] Even though a single notice of deposition counts as just one deposition, the seven-hour durational limit of each deposition (unless otherwise stipulated or ordered by the court), as set out in Rule 30(d)(1), applies to each designated witness, as if each were its own deposition. Fed. R. Civ. P. 30(d) Advisory Committee’s Note to 2000 Amendment.

[5] Practically speaking, organizations typically designate witnesses that have at least some degree of knowledge about the topics upon which they are designated to testify. Doing so helps reduce the risk that the witnesses lack sufficient knowledge to testify as a 30(b)(6) designee.

[6] “Position” in this context refers not only to facts within the organization’s knowledge, but also the organization’s subjective beliefs and opinions – the designee needs to be ready to provide the organization’s interpretation of documents and events. Id.

April 30, 2018/by NCBARBLOG