The purpose of this short article is to implore courts and practitioners to limit the use of Rule 30(b)(6) depositions—and their Rule 11-f analog under the CPLR—to their proper and intended purpose.
Rule 30(b)(6) depositions were apparently designed to prevent “bandying”—the circumstance in which a number of different corporate witnesses disclaimed knowledge of a particular topic. The rule addressed that situation by creating a mechanism whereby the discovering party could specify the topic in which it was interested and require the corporation to produce a witness with knowledge of that topic or to educate a witness on that topic.
For that purpose, the Rule 30(b)(6) deposition is still extremely useful. While it is unlikely that a smart lawyer will be subject to bandying because there are many ways of determining in advance who within an organization will have knowledge of a specific topics, there are still important topics that no one witness will have sufficient knowledge of or where it will be necessary for the witness to educate himself or herself before testifying. For example, Rule 30(b)(b) depositions are useful at the beginning of a case to collect background information about large organizations or of certain businesses within the organization, including its policies and practices. Rule 30(b)(6) depositions may also be useful in developing information about aspects of a company’s operations that no one person would know, or at least know by heart. For example, if it were important to understand the state of a company’s receivables in a case, it would be better to require a corporate witness to educate himself or herself on the receivables than run through multiple witnesses with limited knowledge of a portion of the receivables.
In its origin, the purpose of Rule 30(b)(6) depositions is limited and modest. However, in the 50 years since its inception—and certainly in the 15 years or so in which I have encountered these depositions—practitioners have deployed them in ways that extend beyond their intended purpose, make no sense, and bog down a case in an artificial litigation tactic that all of us should commit to eliminating.
In particular, parties serve extensive Rule 30(b)(6) deposition notices that purport to cover most of the topics in a case, and they argue that they need the “company’s position” on those topics. They do this even when there has been extensive fact testimony by multiple fact witnesses with personal knowledge on each of those topics. Their position appears to be, although they cannot always articulate it, that the propounding party is entitled to examine a corporate witness who will reconcile all of that disparate fact testimony and articulate how the company intends to distill it at trial. They also reserve the right to argue, through cross-examination, with the corporate witness who will be asked to distill the disparate fact testimony, and they insist that whatever that witness says in his or her deposition will be “binding” on the corporation.
Even if this were an intended purpose of Rule 30(b)(6) depositions, it is an unreasonable waste of time. First, it is extremely time consuming to educate a corporate witness about all of the documentary evidence and witness testimony that could bear on the matters for which the propounding party is seeking the company’s position. Second, even if it were possible to educate a corporate witness about all of that evidence and then to prepare him or her to offer a synthesis of that evidence and to defend that synthesis, what is the meaning of that testimony? It is highly artificial testimony in which a corporate fact witness has been asked to act as a surrogate for counsel whose role it should be to synthesize fact testimony. Moreover, when the witness is cross-examined, his or her ability to defend the company’s position is limited to the depth of his or her preparation, which may or may not represent all of the evidence and arguments that the company would marshal on its behalf.
Recognizing some of these defects, and especially the burden of preparing a witness, parties will sometimes agree to allow each other to designate existing fact testimony as the party’s Rule 30(b)(6) testimony on a particular topic. In other words, to avoid the burden of designating and preparing a separate witness to speak for the corporation on a matter about which multiple witnesses might have knowledge—and have testified—a party can designate, post hoc, the witness testimony that will supplant the rest.
While this process avoids the burden and expense of designating and preparing a separate Rule 30(b)(6) deposition witness, it is just as artificial and meaningless. The designated witness’s testimony will only reflect his or her knowledge of the topic at issue and may not encompass the other pieces of relevant information that was described by other witnesses. Moreover, if the topic is one where only the designated witness has relevant knowledge, then that should be clear from the witness’s testimony and the witness’s testimony in his or her personal capacity should be more than sufficient.
I do not mean to suggest that parties should not be able to compel an adversary to articulate its factual theories. But there is a simple alternative to the use of Rule 30(b)(6) depositions to elicit a company’s factual theories before trial and that is contention interrogatories. Whatever the challenges of compelling reasonable responses to contention interrogatories, they are a relatively straightforward and efficient way to require a party to reconcile competing evidence, especially as compared to Rule 30(b)(6) depositions. Moreover, the responses are prepared by the person who is in the best position to reconcile that evidence on behalf of the corporation, which is the lawyer who has been reviewing all of the documents, preparing the fact witnesses, sitting in the depositions, and thinking and reflecting about the evidence on important factual issues since the beginning of the case.
The courts in the Second Circuit do not appear to have addressed this issue. To the extent they have addressed the issue at all, the cases are limited to holding that Rule 30(b)(6) depositions can be used to discover “facts,” not a parties’ “contentions” or “legal theories.” See, e.g., Alheid v. Target, No. 16-CV-6980, 2017 WL 4174929, at *2-3 (S.D.N.Y. Aug. 29, 2017); Liveperson v. 24/7 Customer, No. 14-CV-1559, 2015 WL 4597546, at *7 (S.D.N.Y. July 30, 2015); Pentair Water Treatment (OH) Co. v. Continental Ins. Co., No. 08-CV-3604, 2009 WL 3817600, at *2 (S.D.N.Y. Nov. 16, 2009); Nycomed U.S. v. Glenmark Generics, No. 08-CV-5023, 2009 WL 3463912 (E.D.N.Y. Oct. 21, 2009); King Pharmaceuticals v. Eon Labs, No. 04-CV-5540, 2008 WL 5111005 (E.D.N.Y. Dec. 4, 2008). However, these cases are generally intended to address the circumstance in which a party tries to use a Rule 30(b)(6) deposition rather than a contention interrogatory to discover the bases for an opposing party’s claims, defenses, or affirmative defense. Rather than recognizing that the logic of these cases should bar the use of Rule 30(b)(6) depositions to discover the “company’s position” on a disputed factual issue, counsel invoke these cases in support of that practice, on the ground that they are only seeking to discover “facts.”
But the use of Rule 30(b)(6) depositions to discover the company’s position on a disputed factual issue is fundamentally intended to discover a party’s contentions or legal theories, not facts. The Rule 30(b)(6) witness in that circumstance is not merely providing facts based on personal knowledge or even corporate knowledge. Rather, he or she is undertaking the role of a lawyer in synthetizing disparate pieces of documentary and testimonial evidence, and then offering the party’s contention or legal theories of which controverted facts that evidence supports and which it does not. The fact that the party’s contention or legal theory is deployed in support of a disputed factual issue rather than a disputed legal issue or an issue relating to the application of a legal principal to fact does not change the nature of this discovery as discovery of a party’s contention or legal theory.
When understood in this way, the handful of cases in the Second Circuit that have discouraged the use of Rule 30(b)(6) depositions to elicit contentions and legal theories can and should be invoked by courts and practitioners to prevent the discovery of the “company’s position” on disputed factual issues. Using Rule 30(b)(6) depositions for this purpose is a misuse of these depositions and is an inefficient means of eliciting a party’s contentions on important but controverted facts. Parties should serve simple contention interrogatories instead, asking the responding party to explain its position on disputed factual issues, and to describe the primary evidence supporting its position on those factual issues.
We are sympathetic to the concern that parties are limited to 25 interrogatories, including subparts, and that, at least in the Southern District of New York, contention interrogatories are disfavored until the end of the case. That is a real issue and does appear to create a persistent incentive for parties to continue to use Rule 30(b)(6) depositions and their seemingly unlimited scope to elicit all of the contentions they need to prepare for trial. We also understand that parties are reluctant to agree to expand the number of contention interrogatories they will agree to answer in a case because of the burden of answering too many contention interrogatories, and the risk of failing to include all of a party’s evidence in its response.
We do not have an easy solution except to implore practitioners to work together to enable each other to elicit their adversaries’ positions on disputes factual issues through contention interrogatories rather than Rule 30(b)(6) depositions because providing that discovery through the latter is far worse.
Fortunately, the Advisory Committee on the Federal Rules has recently created a subcommittee on Rule 30(b)(6) depositions, and in May of this year, the subcommittee invited comment on a number of proposed changes to the rule. One of the proposed changes on which the Committee has invited comment is “forbidding contention questions in Rule 30(b)(6) depositions.” We support that change, which is really a long overdue clarification, and recommend that the subcommittee further clarify that using a Rule 30(b)(6) deposition to elicit the “company’s position” on a disputed fact is simply one kind of forbidden “contention question.”
Ian Shapiro is a partner at Cooley.