organization’ s testimony is thorough and complete. In particular, separate witnesses may be necessary to address different business units or periods of time that may be at issue. The organization’ s attorney should resist the temptation simply to select an individual who already possesses the most knowledge on each topic. A 30( b)( 6) deposition is a rare opportunity to choose your fact witness, and due consideration should be given to the witness’ s presentation, demeanor and memory, and substantive knowledge on each topic and corporation knowledge beyond the noticed topics.
The corporation has a duty to thoroughly prepare and educate its designee on the topics, which may require interviewing other employees, and reviewing information, documents and even other testimony and exhibits in the litigation. 7 Counsel should be closely involved to ensure that the designee is obtaining all reasonably necessary information to aid his or her preparation. While Rule 30( b)( 6) does not mandate“ absolute perfection in preparation,” it does require“ a good faith effort” to obtain the relevant facts and prepare the witness. 8“ Preparing a designated corporate witness with only the self-serving
7 Fed. Deposit Ins. Corp. v. Hutchins, No. 1:11 CV 1622 AT, 2013 WL 12109446, at * 3( N. D. Ga. Oct. 25, 2013); see also, Peterson v. Aaron’ s, Inc., No. 1:14-CV-1919- TWT, 2017 WL 385923, at * 2( N. D. Ga. Jan. 25, 2017). 8 Ajibade v. Wilcher, No. CV416- 082, 2017 WL 119474, at * 4( S. D. Ga. Jan. 10, 2017)( quoting Wilson v. Lakner, 228 F. R. D. 524, 528( D. Md. 2005)); see also, Peterson, 2017 WL 385923, at * 2; Bayer Healthcare Pharm., Inc., 2013 WL 11901530, at * 3. half of the story that is the subject of his testimony is not an act of good faith.” 9
Effect of Corporate Designee’ s Testimony
The importance of adequately preparing a corporate designee cannot be overstated. In this Circuit, the testimony of the designee is binding on the corporation. 10 Generally, a corporation cannot later proffer new or different testimony or assertions than those that were provided at the Rule 30( b)( 6) deposition. The binding nature of Rule 30( b)( 6) testimony, coupled with the duty to proffer the organization’ s knowledge on a topic, creates a particularly troublesome result if the designee does not know the answer to questions fairly within the scope of the deposition topics. Counsel may be obligated to prepare and produce additional witnesses to address the topics, unless the questions are so non-controversial that opposing counsel does not oppose corrections being made by an errata sheet.
Courts recognize that serving as a Rule 30( b)( 6) designee may be an“ onerous and burdensome task,” but view this consequence as“ merely an obligation that flows from the privilege of using the corporate form to do business.” 11 Failure to satisfy these obligations could re-
9 Sciarretta v. Lincoln Nat. Life Ins. Co., 778 F. 3d 1205, 1213( 11th Cir. 2015). 10 See, Strategic Decisions, LLC v. Martin Luther King, Jr. Ctr. for Nonviolent Soc. Change, Inc., No. 1:13-CV-2510-WSD, 2015 WL 2091714, at * 6( N. D. Ga. May 5, 2015); Otero, 2006 WL 3535149, at * 4. 11 Hutchins, 2013 WL 12109446, at * 6( quoting QBE Ins. Corp., 277 F. R. D. at 690). sult in sanctions, ranging from“ the imposition of costs to preclusion of testimony and even entry of default.” 12 When noticed for a Rule 30( b)( 6) deposition, corporations are best served by narrowing and / or clarifying the scope of the notice on the front end, and by strategically selecting proper deponents. It is critical for the corporate designee( s) to work closely with counsel to thoroughly prepare for each topic by determining the proper scope of the search for information, and by reviewing the responsive information to anticipate the types of questions that may be asked. ▪
12 Peterson, 2017 WL 385923, at * 2.
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