LEGAL MINUTE
Depositions of Organizations Under Rule 30( b)( 6)
David P. Thatcher Ogletree, Deakins, Nash, Smoak & Stewart, P. C. david. thatcher @ ogletreedeakins. com
Erika L. Leonard Ogletree, Deakins, Nash, Smoak & Stewart, P. C. erika. leonard @ ogletreedeakins. com
Jeffrey J. Costolnick jeffrey. costolnick @ ogletreedeakins. com Ogletree, Deakins, Nash, Smoak & Stewart, P. C.
The Rule 30( b)( 6) 1 deposition authorizes a party to obtain testimony from an organization, as opposed to an individual. The Rule requires the organization to designate a person to serve as the organization’ s voice on the noticed topics. The primary purposes of the Rule are to:( 1) reduce difficulty in determining whether the deponent is a managing agent,( 2) prevent“ bandying” by corporations arising from deponents’ disclaiming knowledge of facts clearly known to the corporation, and( 3) protect the corporation by eliminating unnecessary depositions and allowing it to designate its own witness to speak on its behalf. 2 Due to the unique nature of the proceeding and sometimes seemingly onerous preparation requirements, a Rule 30( b)( 6) deposition can present certain pitfalls for unwary counsel and corporate clients. For that reason, it is essential that each party understands their role and responsibilities in a Rule 30( b)( 6) deposition,
1 Fed. R. Civ. P. 30( b)( 6); see also, O. C. G. A. § 9-11-30( b)( 6)( comparable Georgia law). 2 Cates v. LTV Aerospace Corp., 480 F. 2d 620, 623( 5th Cir. 1973). which can prove critical to litigation strategy.
Ensuring Reasonable Particularity
A party serving notice of a deposition under Rule 30( b)( 6) must“ describe with reasonable particularity” the topics on which testimony is sought. 3 The“ reasonable particularity” requirement protects a corporation from the impossible task of educating a designee on generic, imprecise or uncertain topics. Neither the organization’ s attorney nor the designee should have any questions concerning the scope of the topic. If the attorney cannot articulate to the client what the requested topic’ s testimony entails, or the time period to be addressed, then the topic’ s description is likely insufficient. One of the first steps taken by the organization’ s attorney should be to carefully evaluate the notice and object to topics that are vague, overly broad, or plainly irrelevant. When a topic appears objectionable, a corporation may not unilaterally abstain from providing a designee on a noticed topic without court approval.“[ B ] locking [ of a
3 Fed. R. Civ. P. 30( b)( 6). topic through objections ] except as to privilege must be pre-authorized by way of a motion for protective order” or ruling from the court. 4
Selection and Preparation of Designee
Once the parties have established the topics for the Rule 30( b)( 6) deposition, the corporation must produce one or more witnesses to testify about the corporation’ s knowledge of each topic. The corporation“ appears vicariously through that agent” and the designee must not only be prepared to testify about facts, but must also be able to speak to the corporation’ s position and opinions on issues in the lawsuit. 5 The designee is not required to be the person most knowledgeable within the corporation, or even to possess first-hand knowledge of the topic. Conversely,“ the party seeking discovery is not entitled to insist on a specific person as the corporate representative.” 6 Testimony in a 30( b)( 6) deposition represents the knowledge of the organization rather than the knowledge of an individual deponent. Therefore, multiple designees may be required to ensure that the
4 Coach, Inc. v. Hubert Keller, Inc., 911 F. Supp. 2d 1303, 1310( S. D. Ga. 2012); Otero v. Vito, No. 5:04 CV 211 DF, 2006 WL 3535149, at * 4( M. D. Ga. Dec. 7, 2006). 5 See generally, Goodyear Tire & Rubber Co. v. Great Sw. Express Co., No. CIV. A. 2:04-CV-69-WC, 2006 WL 587600, at * 2( N. D. Ga. Mar. 10, 2006); Otero, 2006 WL 3535149, at * 4. 6 Bayer Healthcare Pharm., Inc. v. River ' s Edge Pharm., LLC, No. 1:11-CV-01634-RLV, 2013 WL 11901530, at * 3( N. D. Ga. Apr. 26, 2013).
26 February 2017