The volatility, malleability and dispersed nature of electronically stored information (ESI) have created new challenges to litigators trying to search, preserve, produce and authenticate information. So it’s important to inquire about the steps a corporate defendant or plaintiff took to identify, preserve, collect and produce documents relevant to the litigation. To ensure that discovery was diligently completed in good faith, this requires detailed inquiry into a corporation’s information management and retrieval systems. The 30(b)(6) witness is the target of this inquiry.
The 30(b)(6) witness’s role is to testify not on the facts of the case, but on a company’s operations, such as IT infrastructure or accounting practices. It is important to note that the 30(b)(6) witness’s testimony represents the knowledge of the entity, not of the person being deposed. In the context of e-discovery, this witness is often called to testify on the steps the corporation took to find and produce responsive documents to ensure good faith discovery.
When opposing counsel request to depose a 30(b)(6) witness, the burden of identifying responsive witnesses lies with the organization. This rule streamlines the discovery process and facilitates meaningful deposition. Since topics can vary greatly, it may take more than one witness to give meaningful testimony, especially for large corporations.
Rule 30(b)(6) and Designation of a Witness
The 30(b)(6) witness not only has a duty to be knowledgeable on the inquiry’s subject matter, but also on subjects the entity should reasonably know as well. This means that, once designated as the so-called voice of the corporation, producing an unprepared witness is tantamount to a failure to appear sanctionable under rule 37(d). Many companies have lost the court’s confidence and have been sanctioned because of producing an unprepared witness.
Because the 30(b)(6) witness serves as a sort of storyteller for the company–detailing its policies and procedures–the need for and relevance of this witness becomes even more important when a party fails to produce any meaningful documents in response to a discovery request or appears to be uncooperative. This is because a compelling story could convince the court to spare a company from sanctions and other penalties. In order to reap the benefits of a knowledgeable 30(b)(6) witness in such instances, a company must thoroughly prep and groom the witness in advance.
Choosing the Right Approach
One of the key decisions a company needs to make when selecting its 30(b)(6) witness is whether to choose from its pool of internal personnel or to select an outside expert, as well as whether to rely on one or multiple witnesses to provide testimony. It’s important to note that this witness does not need personal knowledge or need to be the person most knowledgeable within the corporation. Rather, he or she only needs to possess institutional knowledge, i.e. all relevant information reasonably available to adequately respond to the questions and categories identified in the notice. Often this is no small task.
As mentioned, some companies opt to have an outside representative serve as their 30(b) (6) witness. However, doing so creates its own set of problems. For example, keeping that witness up to date can present both a large cost and time burden. He or she also may not be available when needed. Yet, if your company outsources its IT departments in whole or part, designating someone from this third-party vendor as a 30(b)(6) witness is likely. That is why it is important to build in contractual provisions regarding the third-party 30(b)(6) witness, as well as preservation and production obligations and procedures when engaging the vendor.
Whether you are the party requesting the witness or the one producing the witness, it is key to pre-plan a strategy around your actions. For parties producing the witness, selection and preparation of the witness is the linchpin that will determine success or failure of the outcome. Counsel should take great care in the preparation of each designated representative to ensure that he or she is fully prepared for the categories of inquiry contained in the notice, as well as any other relevant matters to the cause of action. Failure to prepare the corporation’s designated representative fully could result in adverse testimony binding the corporation in the future.
However, since witness preparation is discoverable, be careful with what you expose the witness to during preparation. For example, exposing a 30(b)(6) witness to privileged documents may create subject matter waiver of the specific privilege. Additionally, the witness may also become a fact witness besides a 30(b)(6) designee, which can cause additional problems. And for large corporations, it is wise to designate the same person as the 30(b)(6) witness for each request in order to battle harden them.
When responding to a request, you must pay close attention to the 30(b)(6) topical categories in the notice and be prepared to address each one adequately. Failure to answer a specific category is sanctionable. To that end, counsel must be aggressive in clarifying the scope of categories. It is wise to use the meet and confer conference to define the scope and drive desired results. If all else fails, consider a protective order.
The bottom line is the requesting party must designate with reasonable particularity the topics on which the examination is requested, while the responding party must ensure that the designated witness is knowledgeable about the designated topics.
Having the right witness and investing in defensible technology has always been the key to the overall successful implementation of any litigation readiness plan. This witness is just as important as the technology used to identify, preserve, collect and process the ESI. To that end, e-discovery has made the 30(b)(6) witness an invaluable tool for both the requesting and responding party.