30(B)(6) Preparation Tips
If you have ever said “that rule may make sense in theory, but it does not work in real life,” you may also have spent weeks futilely attempting to prepare a witness to serve as a corporate designee in a 30(b)(6) deposition in a complex case. The theory underlying Federal Rule of Civil Procedure 30(b)(6), and its state rule equivalents, is sound: a litigant should be entitled to a defendant or third-party corporation’s knowledge of key facts, and should not be stymied by a series of individual fact witnesses who each pass the buck, claiming to lack personal knowledge. The rule, therefore, obligates a corporation to prepare one or more witnesses to give binding answers on the corporation’s behalf with respect to the noticed subjects. Rule 30(b)(6) specifically states:
In its notice or 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 designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. The persons designated must testify about information known or reasonably available to the organization.
The idea is that a corporation has to get its facts straight and provide them in a coherent manner to the noticing party. To accomplish this basic goal, the designee does not need personal knowledge, but rather needs to educate herself by reviewing documents, speaking with knowledgeable current or former employees, and meeting with attorneys.
In practice, however, the 30(b)(6) deposition often does not serve its intended purpose. The noticing party is often not actually interested in exploring the corporation’s “knowledge” of key facts and issues. Instead, it often uses such depositions to exert pressure on the corporate party in two ways: (1) to force counsel and the designee to spend considerable time and resources attempting to become educated on broad, ill-defined topics; and (2) to attempt to elicit soundbites in response to reptile questions.
And then to add insult to injury, after the deposition, the noticing party often files a motion to seek additional deposition time, sanctions, and other relief, arguing that the designee was not adequately prepared. If successful, the cycle – the time, expense, and stress – repeats itself. Make no mistake, the entire exercise is often not actually about obtaining needed discovery but rather a strategy to create additional leverage for settlement or indemnification.
As a result, the prep team must have multiple goals in mind, including avoiding a binding soundbite that would be played at a trial, and also reducing the risk of additional depositions or other sanctions due to the alleged failure to adequately prepare the witness.
To achieve these goals, consider the following tips:
- Spend a considerable amount of time identifying the appropriate witness or witnesses, balancing their personal knowledge against the amount of time they have to educate themselves on the topics.
The witness herself can make all the difference. In a perfect world, she has personal knowledge of the topics, time to invest in preparing, and feels a personal connection to the issues, because that will reduce the likelihood that the plaintiff will be able to build a case the witness was unprepared. For these reasons, recent retirees – who also spent time working on relevant issues before retiring – are often the best corporate representatives. They have time to prepare, and are often willing to invest the time in return for a reasonable consulting fee. While the fee is an additional cost, the client ultimately often saves money because a well-prepared witness needs less hand-holding from outside counsel, and the prepared witness reduces the risk of a follow-up deposition. And in light of the fact the retiree is typically paid by the hour, he is incentivized to actually spend the time to prepare, as opposed to current employees who have less time to prepare.
If a recent retiree does not exist or is unavailable, the next best bet is an experienced witness (particularly if experienced in a 30(b)(6) setting), as it is also extremely important for the 30(b)(6) witness to effectively navigate the examiner’s attempt to secure binding testimony in response to reptile questions (e.g., “it would have been wrong for your company to do [x]…?”). Novice witnesses who may be knowledgeable about the topics can be risky because they may not be equipped to handle closing-argument style cross examinations which are typical in 30(b)(6) depositions, as the admissions are binding at trial.
- Attempt to negotiate with opposing counsel regarding the scope of the topics in advance, including any specific events or policies they are truly interested in exploring.
If opposing counsel is reasonable, you often can make some progress reducing the number and/or scope of certain topics. But even if the noticing party will not eliminate any topics, you should press for the specific facts that he is interested in on a given topic. The most successful argument we have made is that the entire point of the deposition is supposed to be to discover relevant information and, therefore, we ought to focus our prep on the information they are truly interested in so the deposition is fruitful for the noticing party. For example, if it is a personal injury case, and one of the 30(b)(6) topics broadly seeks testimony regarding “all publication team meetings; publication policies; and/or publications regarding [the product],” you should request the plaintiff identify the specific articles or posters on which they want to question the witness. And if you have success getting the plaintiff to narrow the notice, you should, of course, memorialize the agreement. Conversely, if the plaintiff refuses to narrow the scope at all, you should put in writing the efforts you made during meet-and-confer to explain the sheer number of publications, meetings, and/or policies at issue. This will serve you well in either a motion for a protective order or, after the deposition is concluded, defending against a motion to compel an additional 30(b)(6).
Finally, we have occasionally had success persuading the noticing party to accept written responses in lieu of 30(b)(6) testimony on certain discrete topics.
- Consider filing a motion for a protective order if the topics are unreasonably broad and there is no meeting-of-the-minds.
When faced with a seemingly herculean task of preparing a witness(es) on an extremely large number of broad topics, one option to consider is filing a motion for a protective order in advance of the deposition. Some courts are receptive to the argument that the number and/or scope of topics is unduly burdensome.
For example, recently the Southern District Court of New York and Western District Court of Washington each granted protective orders and limited the number and scope of 30(b)(6) topics. In In re Lifetrade, the Southern District of New York Court noted that “[a]ll 30(b)(6) deposition topics are constrained by Rule 26(b)(3)—meaning that they must seek information relevant to the claims and defenses that is proportional to the needs of the case. Further, the party seeking the deposition must describe the deposition topics with ‘reasonable particularity.’” The court “scrutinize[d] [the] Rule 30(b)(6) deposition topics to ensure they are not a tool for abuse of the discovery process,” and noted that “the Court is fully within its discretion to limit 30(b)(6) topics to the extent the deposition topics do not achieve that purpose and are unreasonably cumulative or duplicative, the information can be obtained from some other source that is more convenient, less burdensome, or less expensive, or the burden or expense of the certain deposition topics outweigh the likely benefit of requiring a company to prepare for them, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Applying these principles, the court found the 30(b)(6) topics were overbroad and redundant, and narrowed the scope of many of them.
Similarly, in Burrows v. 3M, the Western District of Washington Court explained “the purpose served by Fed. R. Civ. P. 30(b)(6)—to require an organization to identify and designate a witness who is knowledgeable on the noticed topic, particularly where the noticing party is unable to itself identify an appropriate witness because that knowledge lies within the organization—does not extend to burdening the responding party with production and preparation of a witness on every facet of the litigation.” In that case, the plaintiff’s husband died after falling on the job while wearing 3M’s self-retracting lifeline (“Nano-Lok”). The plaintiff served an extremely broad 30(b)(6) notice which the court concluded “as currently drafted is excessive, as it notes topics far beyond the scope of the Nano-Lok design . . . Plaintiff is ordered to redraft the current notice to comply with this Order and serve the amended notice on defendant.”
However, a motion for a protective order does not come without risks. In some courts, the outcome can be made worse -- the judge (or magistrate) can reject your arguments regarding scope and burden, and order you and the designee to do even more work to prepare than you otherwise may have needed to do. Therefore, depending on the judge, it can be more efficient and prudent to attempt to prepare fully and put up the witness, and then deal with a potential motion for additional after the deposition is concluded. After all, it is possible the noticing party will not file a motion to compel.
- Provide as much reading material as possible to the witness, including documents and deposition transcripts, and bring to the deposition a list of the material reviewed by the witness.
It is critical to set expectations for your witness early in the prep process and explain how important it is for her to do her homework. This may be new for experienced fact deponents, who are typically accustomed to using the prep sessions as the vehicle to walk through documents with counsel. While that undoubtedly will be part of the 30(b)(6) prep too, ideally, the 30(b)(6) herself will spend considerable time reviewing all of the materials on her own. In our experience, the homework causes the witness to take ownership over her testimony and ask probing questions during the prep sessions that ultimately leads to an adequately prepared witness. Moreover, courts routinely consider the amount of time the witness spent preparing when determining if she was adequately prepared.
In addition, bringing the list of reviewed materials to the deposition (which will get marked as an exhibit), serves two critical functions: (1) it eliminates the risk the witness will provide an incomplete description of the quantity of material she reviewed; (2) the witness may be reminded of additional facts and learning by virtue of having the list of materials reviewed in front of her at the deposition.
- Schedule as many conversations between the designee and other current or former knowledgeable witnesses as practicable.
Courts often expect that corporate designees will conduct interviews of other witnesses who have unique knowledge of issues relevant to the topics in the notice. For example, the Southern District of Ohio held in Oro BRC4, LLC v. Silvertree Apartments that “[t]he corporate entity must make a good faith effort to identify which relevant facts it possesses, and is thus required ‘to collect information, review documents, and interview employees with personal knowledge…”
Such interviews are obviously not privileged – in fact, the purpose is for the witness to share at the deposition the relevant information she learned from the interview – so often we, as outside counsel, conduct pre-screen interviews with the interviewee to explain the purpose and process, and investigate as to whether the interview will do more good than harm. However, the actual substantive interview should be led by the witness herself so that she can convey at the deposition that she had full autonomy to ask any questions that she thought may be relevant.
- Bring to the deposition copies of key documents and consider creating, along with the witness, summaries and/or timelines of key events.
It can be very helpful for the witness to have at her disposal binders of key documents that she has flagged to help guide him, and remind him, of key events and policies that are relevant to the deposition. 30(b)(6) deponents “must be prepared and knowledgeable, but they need not be subjected to a memory contest.” You should provide those materials to opposing counsel at the deposition and they will typically be marked as an exhibit. In addition, it can also be helpful for the witness to bring with him written summaries, timelines, and/or “cheat sheets,” regarding key events that relate to the topics particularly when the scope of the notice is very broad. Work product – so long as it is vetted personally by the witness – is fair game for a 30(b)(6); after all, the purpose of the deposition is supposed to be for the plaintiff to discover relevant information. For example, in a personal injury action relating to the use of a prescription drug, if one topic in the notice seeks “all interactions with the FDA regarding the drug,” a summary/timeline of the key regulatory events can be extremely helpful to the witness.
However, it is important that the witness understands that, if possible, her testimony should amount to more than simply reciting what is in one of the documents she brought with her. A recent case is instructive. In In re FirstEnergy Corp. Sec. Litig, a class of purchasers of securities brought action against FirstEnergy as a well as individual former employees, including Charles Jones and Michael Dowling. Jones and Dowling served a 30(b)(6) notice on its co-defendant, and former employer, FirstEnergy, who designated an assistant controller as its witness. After the deposition, Jones and Dowling sought an additional deposition, arguing that the designee did “little more than recite passages from the company’s Deferred Prosecution Agreement (‘DPA’),” noting that “designee responded over 100 times that she did not know or was not prepared to answer questions on agreed-upon topics.” FirstEnergy countered that the witness “met with counsel over half a dozen times[,]” and reviewed “the entire 49-page DPA and its 30-page statement of facts, all 70-plus documents referred to in the DPA, and an 84-page, single-spaced testifying aid on dozens of wide-ranging topics.” The Court granted the motion, concluding that the witness’s preparation and testimony fell short of the requirements of Rule 30(b)(6). The court took issue with the testimony, as well as the testifying aid, and granted an additional deposition.
[O]ne of the significant topics noticed for deposition was a $4.3 million payment FirstEnergy made to Sam Randazzo, the Chairman of the Public Utilities Commission of Ohio (“PUCO”). . . . When Ashton testified about the $4.3 million payment, she was only prepared to share what the DPA already stated. In fact, the section of her testifying aid related to the payment merely quotes the DPA and cross-references other portions of the aid, which themselves primarily quote the DPA and the consulting agreements. So her testimony went in circles, always returning to the DPA's and consulting agreements’ language. And, when questioned about the facts underlying those representations and agreements, she had little to offer.
In addition, the court noted that “FirstEnergy makes no representation that it even attempted to interview current employees, some of whom may possess similar knowledge. . . . In essence, Ashton’s preparation made her adept at summarizing the DPA, recognizing which portions of it relied upon particular supporting documents, summarizing those documents, and identifying the persons named in the DPA by pseudonym.”
In other words, the court was troubled by the witness’s apparent over-reliance on the materials she brought with her, and the witness’s inability to add more color to her “testifying aid.” The bottom line is that the “cheat sheets” or “testifying aids” should be used by the witness as foundational beams, but the prep must fill out the structure of the house above them.
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It is often stressful on corporate entities, in-house counsel, and designees to prepare for Rule 30(b)(6) depositions. Courts are often not impressed by how burdensome and challenging it is to prepare witnesses for broad topics that cover lengthy periods of time. We have found, however, that you can manage the entire process best if you spend significant time on the front end identifying the best witness(es) and managing their expectations regarding the significant amount of work it will take to avoid the pitfalls described above.
