It may appear to be a seemingly mundane task when selecting and preparing an appropriate corporate representative for a “Rule 30(b)(6)” deposition. However, the selection process can present some complex challenges and real potential pitfalls for the company and its counsel.What is a Rule 30(b)(6) deposition? Rule 30(b)(6) of the Federal Rules of Civil Procedure allows a party to name a corporate entity (or other organization), rather than a specific individual, in a notice of deposition and to identify the subject matter(s) to be explored. According to the Rule, these subject matters must be identified with “reasonable particularity.” In response, the corporation must designate one or more persons to testify on its behalf to “matters known or reasonably available to the organization” regarding those topics. The resulting testimony binds the company and may be used by the discovering party for any purpose. 1
Difficulties Associated With The Discovery Tool. There is no limit on how many topics (related or unrelated) can be specified in a single 30(b)(6) deposition notice. Moreover, while the rule states that the subject matters to be explored must be identified with “reasonable particularity,” such subject identification listing in the deposition notice serves as a starting point, not an ending point, for the deposition. 2 Sometimes litigants try to use 30(b)(6) depositions to mitigate the impact of time and numerical limitations on depositions imposed by the Federal Rules of Civil Procedure and/or case-specific orders. For example, faced with the standard limitation of a one-day seven-hour deposition, a litigant may notice a 30(b)(6) deposition with dozens of subject matters (possibly unrelated) to force the designation of multiple corporate representatives – each of whom, according to the express text of the Rule, can then be deposed for a separate seven-hour period on their respective topics. Some litigants also attempt to use 30(b)(6) depositions to shortcut more time-intensive and expensive conventional discovery devices (like document productions and written interrogatories) by noticing a deposition to explore all the available evidence on contested factual matters in a case, and sometimes even a legal interpretation of those facts.
Keeping the foregoing discussion in mind, please consider the following three best practices and “heads up” pointers when selecting a witness in response to a Rule 30(b)(6) deposition notice: