Under Federal Rule of Civil Procedure Rule 30(b)(6), a party may depose a public or private corporation, a partnership, an association, a governmental agency, or another entity. Of course, it is not actually possible to depose an organization, so the rule places a duty upon the deponent organization to designate a representative to testify on its behalf—and to make sure the representative is reasonably prepared to speak about matters related to the present litigation.
The job of preparing a witness for a 30(b)(6) deposition typically falls on an organization’s counsel. Here are some of the common mistakes that counsel should avoid during 30(b)(6) deposition witness preparation.
While this may seem like the most obvious potential mistake and one that should be easy to avoid, simply failing to adequately prepare a witness is one of the most common mistakes made by corporate counsel. It’s important to keep in mind that the duty placed upon an organizational deponent is significant, even described by courts as “onerous.” See Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 638. (D. Minn. 2000) (“We understand that the burden upon the responding party, to prepare a knowledgeable Rule 30(b)(6) witness, may be an onerous one, but we are not aware of any less onerous means of assuring that the position of a corporation, that is involved in litigation, can be fully and fairly explored.”)
An organization has a duty to designate one or more witnesses to “testify about all information known or reasonably available to the organization” for any questions that may come up under the topics that were identified in the notice or subpoena. As counsel, this may require having your witness review voluminous documentation or interviewing others with knowledge to ensure the witness you produce complies with the strictures of 30(b)(6).
Another common mistake made by counsel when preparing for a 30(b)(6) deposition is failing to review the notice or subpoena carefully. The rule requires that it describe the matters for examination with reasonable particularity. The deposing party may ask a witness questions that are outside the scope of the matters for examination, but as counsel for the deponent, it’s important to object that any answers provided by the witness are not binding on the entity.
While 30(b)(6) places a significant burden on the deponent organization, it also offers significant discretion as to whom an organization can designate as its representative. The rule only requires that the organization “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” In addition, the organization may set out the matters on which each person designated will testify.
Another mistake counsel should endeavor to avoid even before witness preparation begins is failing to choose the right representative (or failing to designate multiple representatives) to provide testimony that is limited in scope to the issues of which they have personal knowledge. While it may seem counterintuitive, because witnesses are expected to testify on behalf of the organization collectively, it is often better to designate a third party that does not have personal knowledge regarding the matters to be discussed. In addition, when the scope of a deposition is broad, it is often advisable to use multiple witnesses to discuss specific matters.
By choosing the best representative from the outset, counsel can avoid mistakes during preparation and when the deposition is actually being conducted by the adverse party.