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Effectively employed, depositions noticed pursuant to Federal Rule of Civil Procedure 30(b)(6) offer huge opportunities for both the proponent of the deposition and the defender. And naturally, as with all litigation tools, traps loom for the unwary. This article describes the basics of Rule 30(b)(6) notices, and offers some creative defenses and tips on avoiding catastrophes. The need for properly framed deposition questions and precise answers cannot be understated. The questioner will be able to use the deposition to lock in the factual story of the corporation subject to the Rule 30(b)(6) notice. If the corporation tries to vary from its answer at trial, the jurors will see how the story changed now that they are in the room. Concise and articulate answers to deposition questions may be used by the corporation before trial in briefing to diffuse any allegations raised against it and during trial by reining in the scope of any cross-examination. If the questioner knows the witness can handle a question, as proven by the deposition, it won’t be asked. For the proponent of a Rule 30(b)(6) notice, the advantages are obvious: An effectively phrased Rule 30(b)(6) notice offers an opportunity to pin down a corporation early in a case. The rule provides that a party may in its notice and in a subpoena name as the deponent a public or private corporation or partnership or association or governmental agency and describe with “particularity the matters on which the examination is requested.” Fed. R. Civ. P. 30(b)(6). The person or persons so designated shall testify “as to matters known or reasonably available to the corporation.” Id. And while most courts have not found that the answers are binding in the sense of a judicial admission ( U.S. v. Taylor, 166 F.R.D. 356, 362 n.6 (M.D.N.C. 1996)), a corporation taking a different stance at trial is subject to impeachment (see W.R. Grace & Co. v. Viskase Corp., No. 90 C 5383, 1991 U.S. Dist. Lexis 14651, at *5 (D. Ill. Oct. 11, 1991); A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001)). Rule 30(b)(6) notices can also be served (via subpoena) on nonparties and thus are particularly effective in situations in which very specific third-party information is sought but little is known in advance. Third-party notices must be served, however, pursuant to Rule 45 of the Federal Rules of Civil Procedure. As to both parties and nonparties, the requirement that a witness or witnesses testify to matters “known or reasonably available to the corporation” can effectively shift the burden of discovery preparation to the defending party. Unlike individual depositions, where “I don’t know” may suffice, a person designated to testify pursuant to a proper Rule 30(b)(6) notice has an affirmative obligation to seek out information included within the notice. In other words, the noticed party has the affirmative obligation to prepare a deponent to testify as to any properly noticed matters that are “reasonably available” to the corporation. As to events occurring long ago, former employees may need to be interviewed in order to gain the appropriate information, and often documents need to be pulled and reviewed in order to comply with the preparation requirements. For litigants seeking early information on the specifics and completeness of an opponent’s document production, Rule 30(b)(6) offers an avenue. Properly noticed topics can include requests for information about which individuals were asked to search for documents, what areas were searched and the mechanics of any searches. Often this route is less expensive than letter-writing campaigns or premature motions to compel. Nothing makes the point to a judge better than deposition testimony about what wasn’t done. And even with the new obligations under Rule 26 regarding electronic discovery, Rule 30(b)(6) testimony regarding document production can still make sense in the appropriate case. Defense advantages While the advantages to the proponent are well documented, very little has been written about the effective defense of such depositions and the strategic and tactical opportunities available to the defender. First, the defending party actually gets to select the witnesses who will be deposed. It is the most obvious and yet most overlooked tactical advantage. On its face, the rule does not require a party to produce the “most knowledgeable” witness on a particular topic. See Sprint Commc’ns Co. v. Theglobe.com Inc., 236 F.R.D. 524, 528-29 (D. Kan. 2006) (explaining that “personal knowledge of the designated subject matter by the selected deponent is of no consequence”). Instead, the only requirement is that a party produce a witness who is adequately prepared to answer the questions. It is even permissible to hire former employees or other agents to testify on behalf of the corporation: “[T]he organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf.” Fed. R. Civ. P. 30(b)(6).
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Granted, the best witness on a topic is often the one most familiar with it, but not infrequently, the key person on a topic is a forensically unattractive witness. In other words, sometimes a witness may know the facts but be unable to present them in a cogent and persuasive manner. By thinking ahead to trial and investing in the selection and preparation of a Rule 30(b)(6) deponent, a litigator can gain a huge tactical advantage: One can actually shift the focus from a less persuasive fact witness to a person who can truly shine at trial. The only caveat is that the witness must be adequately prepared to answer the questions posed. Understandably, knowledge in the relevant area is preferred. However, by taking the time to invest in the preparation, a good witness can carry a large chunk of the case. Moreover, if less effective fact witnesses are outside the subpoena power at trial, opposing counsel is stuck with playing video clips of those witnesses � a practice known to bore the most interested of juries � in contrast to an in-court shining star. The gift was given with the service of the Rule 30(b)(6) notice. In short, as long as other fact witnesses testify consistently with the Rule 30(b)(6) deponent, trial counsel has a rare opportunity to actually select some of its key trial witnesses through its response to a Rule 30(b)(6) notice. See Brazos River Authority v. GE Ionics Inc., 469 F.3d 416, 434 (5th Cir. 2006) (explaining that “if a rule 30(b)(6) witness is made available at trial, he should be allowed to testify as to matters within corporate knowledge to which he testified in deposition”). Second, Rule 30(b)(6) notices allow the defender a unique opportunity to prepare for the examination in advance. The rule requires the notice to “describe with reasonable particularity the matters on which the examination is requested.” Fed. R. Civ. P. 30(b)(6). Counsel faced with such a notice should put opposing counsel through its paces. In preparation to respond to the request, counsel can request additional particularity with respect to the various topics. This will help not only in the ability to prepare the 30(b)(6) deponent, but it also may give a road map of the opposing counsel’s view of the case, including critical facts and disputed issues. A protective order is available if the subjects are too vague to allow proper preparation, and if opposing counsel refuses legitimate requests for narrowing of the topics or for additional specifics on the nature of the requests. Another potential option includes formally objecting to the topics and putting counsel on notice, but awaiting specific questions in the deposition. If the question was not foreseeable in light of the notice as served, counsel can then indicate (if the witness does not fairly know the answer) that a subsequent witness will be put up to answer. In some respects, such a deposition then becomes the legal equivalent of a take-home exam. If counsel does give the requisite specificity, the result is the same: Counsel has a rare opportunity to thoroughly prepare in advance and the witness may even bring in documents to the deposition to help in answering any questions. As discussed below, defending counsel should take great care in complying with its discovery obligations under Rule 30(b)(6) deposition notices. Nothing puts a corporation on the defensive sooner than a motion to a court suggesting that discovery obligations are being given short shrift. Third, putting up a key (and well prepared) witness early in a case in response to a Rule 30(b)(6) notice can potentially preclude a second deposition in an individual capacity later. In this area, it is important to note one potential pitfall: Often a questioner will go beyond the noticed topics during the course of the deposition. In such a situation, a defender is faced with two possible options: objecting on the basis that the question goes beyond the scope of the notice or saying nothing. If the witness has been carefully selected and can handle the questions with ease, why object at all? Let counsel ask the questions and then try to argue later that the testimony, taken pursuant to their Rule 30(b)(6) notice, should be discounted. Potential pitfalls Just like any litigation tool, however, traps loom for the unwary. The biggest downsides may be suffered by the defending party. This is one area where there are plenty of opportunities to learn from others’ mistakes. For example, in Guy Chemical Co. Inc. v. Romaco, No. 3:06-96, 2007 U.S. Lexis 4287, at *29-*34 (W.D. Pa. 2007), the Rule 30(b)(6) witness was unable to answer a limited number of questions concerning a topic in the Rule 30(b)(6) notice. The court explained that although the number of unanswered questions in the 12-hour deposition may not appear unreasonable, “Rule 30(b)(6) sets forth qualitative standards.” Id. at *33. The topic was clearly stated in the notice and the deponent’s “complete inability to ‘fully, completely, [and] unevasively’ respond constitutes a violation of the discovery principles articulated in the federal rules.” Id. This case serves as a reminder that if the selected witness cannot provide answers, the defending party is “obligat[ed] to provide a substitute.” Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 638 (D. Minn. 2000). To avoid an embarrassing and potentially costly end, the defending attorney should track any questions to which the deponent could not fully answer and affirmatively offer a substitute witness. If a Rule 30(b)(6) witness is so unprepared to testify, a court may find that the lack of preparation equates to a failure to appear at deposition, which is sanctionable conduct under Rule 37(d). In Continental Casualty Co. v. Compass Bank, No. CA 04-0766-KD-C, 2006 U.S. Dist. Lexis 12288, at *57 (S.D. Ala. March 3, 2006), the district court cited numerous courts that agreed that “a failure to appear at deposition sanctionable under Rule 37(d)(1) includes those circumstances in which a 30(b)(6) corporate designee appears at deposition unprepared to testify.” One of the cited cases is Black Horse Lane Assoc. L.P. v. Dow Chemical Corp., 228 F.3d 275, 304 (3d Cir. 2000), wherein the court held “that when a witness is designated by a corporate party to speak on its behalf pursuant to Rule 30(b)(6), ‘producing an unprepared witness is tantamount to a failure to appear’ that is sanctionable under Rule 37(d).” If a corporation’s Rule 30(b)(6) witness falls flat on her face in deposition, her testimony may still appear at trial even when the same witness does not. Testimony by a corporation’s Rule 30(b)(6) witness may be used to impeach trial testimony from a different corporate witness. Although courts are unlikely to preclude a corporation from offering testimony from a different witness at trial, if the trial witness “makes a statement to contradict a position previously taken in a Rule 30(b)(6) deposition, then [the questioning party] may impeach that witness with the prior inconsistent statement.” W.R. Grace & Co., 1991 U.S. Dist. Lexis 14651, at *5. On the other hand, the corporation may be unable to prevent a bad Rule 30(b)(6) witness from testifying at trial � even on matters learned by the witness only in her corporate capacity. If the other side designates Rule 30(b)(6) testimony, a district court may require the witness to appear live. Reading of deposition testimony isn’t favored and, of course, it’s often boring for the jury. District courts may be “reluctant to allow the reading into evidence of the rule 30(b)(6) deposition if the witness is available to testify at trial.” Brazos River Authority, 469 F.3d at 434. This highlights the importance of taking the offensive when playing defense against a Rule 30(b)(6) notice and the critical nature of witness selection. Jan M. Conlin and Katie Crosby Lehmann are partners in the Minneapolis headquarters of Robins, Kaplan, Miller & Ciresi who have handled a number of high-profile patent infringement trials.

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