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It ain’t entirely broke; but it may nevertheless be time to fix it. Rule 30(b)(6) is being considered by the Judicial Conference Advisory Committee for possible amendment, because, as noted by the committee’s reporter, Professor Richard Marcus, “recent scholarship suggests that the rule can be misused to impose unfair burdens on responding parties.” Misused? Ohmygosh; they’re talking about us! Among that recent scholarship is an Alabama Law Review article which begins with a reference to our October 1998 column on Rule 30(b)(6) which, say the authors, “illustrates the dangers” of misuse of the rule. We posited that Rule 30(b)(6) should be binding on the entity, a notion the law review authors think “highlight[s] the mischief that a misguided reading of Rule 30(b)(6) may engender.” 50 Ala. L. Rev. 651, 652 (1999). Is 30(b)(6) testimony binding? Should it be? Whew! Holy Misguided Mischief, Batman! We didn’t respond at the time because, well, the real reason is that our subscription to the Alabama Law Review had just run out and we missed the article, but also because the The National Law Journal allots 1,650 words per column and the article runs 44,882 words, and we don’t think it’s fair to ask folks to respond to simple ideas when they need so many words to express themselves. But the Advisory Committee’s recent interest impels us to action. We are reminded of the outrage in the 1970s when RICO statutes began to be used against commercial entities. It was a misuse of the RICO statute, some claimed, to thus apply RICO, since the statute was intended to apply to criminal activity. Agreeing, the 2d U.S. Circuit Court of Appeals implied a requirement into the statute that there had to be a prior criminal conviction of a predicate act before a civil RICO suit could be brought. The Supreme Court reversed. In Sedima v. Imrex Co., 473 U.S. 479 (1985), the court acknowledged the “initial dormancy” of RICO “and its recent greatly increased utilization” against commercial enterprises. Id. at 481. “It is true that private civil actions under the statute are being brought almost solely against [legitimate enterprises], rather than against the archetypal, intimidating mobster. Yet this defect-if defect it is-is inherent in the statute as written, and its correction must lie with Congress.” Id. at 499. One side’s “use” is often characterized by the other as “misuse.” It was no misuse of the statute to use it as written. And we stand by our 1998 column, which simply advocated that we ought to use Rule 30(b)(6) as written and as interpreted by the courts. But our prides aside, the issue for today is whether the rule is broken and needs to be fixed-or, if not needs to be, ought to be. We want to raise a suggestion or two for you to think about. Rule 30(b)(6) was adopted to avoid “bandying”-the process by which successive corporate agents each disclaim knowledge of facts someone within the entity ought to know. The idea was to force the entity to give a usable answer, and it was considered no more burdensome upon the entity to do so than to answer interrogatories. Hanley v. Woodward & Lothrop Inc., 330 F.2d 940, 944 (4th Cir. 1964); Advisory Committee Notes (1970). Rule 30(b)(6) does not use the word “binding,” but case law has to various degrees engrafted that concept. Reilly v. Netwest Mkts. Group Inc., 181 F.3d 253, 268 (2d Cir. 1999), states that Rule 30(b)(6) requires the corporate deponent to give “complete, knowledgeable and binding answers.” The 2d Circuit did not define “binding,” but a number of courts have used the word in its most binding sense. See e.g., In re Metoprolol Succinate Patent Litig., 2006 U.S. Dist. Lexis 1328 (D. Mo. 2006), where, citing Reilly, the court held that 30(b)(6) testimony cannot be contradicted by contrary sworn testimony. The 7th Circuit, on the other hand, while acknowledging the Rainey line of cases, holds that a Rule 30(b)(6) deposition is no more binding than any other deposition and does not constitute a judicial admission. A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001). Is a 30(b)(6) deposition actually binding or only somewhat binding? The rule can be-and has been-interpreted both ways. It is a substantial and persuasive argument to suggest that a Rule 30(b)(6) deposition ought to be no different than the deposition of an individual. It binds the deponent in the sense that deviations at trial will be made at the peril of impeachment. But while that is a credible position, the contrary position, that a representative deposition is different and should be treated differently, is equally compelling. When an individual says different things on different occasions under oath, the impeachment value is real. But when two different individuals who are spokespersons for the same entity say two different things, the effect is far different. “I know that I said the light was green at my deposition, but I now remember it was red” is a cross-examiner’s dream when spoken by an individual. But when a trial witness says, “I know Mr. Smith said the light was green, but this is a big company with a lot of people and Mr. Smith just got it wrong; I, Mr. Wright, have looked very carefully at our corporate records and have spoken with all of our people, and I can now say with conviction that the light was red,” makes for a far less valuable bit of drama. If 30(b)(6) depositions are not binding, what is the point of taking them? What is the point of the rule? We think they ought to be binding. Yet if they are binding, how do we avoid the potential for unfairness? The problem with a binding rule is the burden that it places on the corporate entity to get it right when it testifies. But that burden can be ameliorated by having clear procedures in place for the corporation to reflect and amend. Rule 26(e) already sort of provides that mechanism, but it should be clarified. If a corporate entity learns after answering an interrogatory that its answer is wrong or incomplete, it has the duty/right to supplement. We say “duty/right” because, even though Rule 26 speaks of duties rather than rights, it is in fact both. It is a duty to give accurate information, but it is also an opportunity to correct earlier missteps and avoid the impact of impeachment. We have no problem with the binding nature of interrogatory answers for the simple reason that the process allows for reflection, dissemination within the entity to obtain the collective input of the organization, and the opportunity to correct erroneous answers. We are troubled with the binding nature of representative depositions because the single spokesperson does not in real time at the deposition have access to all resources and may, no matter how well prepared, be unable to accurately synthesize the facts. But with a procedure in place for the entity to review-and to correct and supplement-those problems can be eliminated. So we suggest that Rule 26(e) and Rule 30(b)(6) should be amended to provide some period of time to amend or supplement testimony before it becomes binding. And, when there is newly discovered information that was not reasonably known to the corporation at the time of the deposition or supplement period, that new information should provide an acceptable basis to supplement previous testimony. A review process would take some of the terror out of the preparation process, but it should not be allowed to serve as a substitute for adequate preparation; otherwise, a 30(b)(6) deposition would become an exercise in which every answer to every question would be, “I’ll have to get back to you on that.” The right/duty to supplement should be just that-a supplement. With these safeguards in place, we believe that Rule 30(b)(6) depositions should be binding to the same degree and extent as a sworn interrogatory answer or responses to requests for admission. A look at ‘Lawson,’ work product and privilege In a typical deposition of an individual, materials used to refresh recollection are discoverable, and an otherwise privileged document used in preparation may lose its privilege. See, e.g., Lawson v. U.S., 1998 WL 312239 (S.D.N.Y. 1998). The reason is that it is fair game to explore how a fact witness came by his or her recollection. But a Rule 30(b)(6) deposition is not the recollection, refreshed or otherwise, of an individual who speaks, but rather the articulation of the collective knowledge of the company. When a spokesperson for an entity uses a privileged document in order to articulate the position of the company, it is no different than when an attorney uses privileged information to craft an interrogatory answer or brief. There is no waiver of underlying privilege in making such statements, nor should there be. Persons propounding Rule 30(b)(6) depositions would get better prepared witnesses and better testimony, and entities responding to such discovery requests would find it easier to prepare and give full testimony, if it were made clear that the witness is permitted to use-even have materials present to consult for reference-to give complete responses. We suggest that the use of such materials should be affirmatively encouraged by rule, by eliminating the fear of having to turn them over to the other side. We have other thoughts-so many ideas, so few words to express them. But we would welcome-appreciate-your reactions about whether and how we ought to tinker with Rule 30(b)(6)-unless you would just rather submit them directly to some law review. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners in Chicago’s Jenner & Block. Solovy, the firm’s chairman, can be reached at [email protected]. Byman, past chair of the ACTL Civil Procedure Committee, can be reached at [email protected].

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