For a matter in litigation, the proper method for obtaining oral testimony of an organization itself is the through the service of Notice of Deposition under Federal Rule of Civil Procedure 30(b)6. The purpose of this article is to provide a basic framework for using this Rule to obtain testimony and to review some considerations on how to handle a 30(b)6 Notice served on your client.
Federal Rule of Civil Procedure 30(b) states:
(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
Fed. R. Civ. P. 30(b)6. While often referred to as a “Corporate Designee” request, in addition to corporations, the Rule specifically includes partnerships, associations, governmental agencies, and/or other entities as organizations on which the Notice can be served. The reference to “other entity” in the Rule opens the possibility of service of a 30(b)6 Notice on almost any type of organization.
A Notice under Rule 30(b)6 names the organization itself and not any particular individual. That organization then can designate “one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Assuming that the areas of inquiry were properly defined in the notice, an organization must: (1) designate a deponent knowledgeable on the topic; (2) designate multiple deponents if more than one is necessary to respond to all designated topics; and (3) prepare the deponent so that he or she can testify on matters both within his or her personal knowledge as well as those reasonably known by the responding entity. Banks v. Office of the Senate Sergeant-At-Arms, 241 F.R.D. 370 (D.D.C. 2007). Further, a party need not produce the organizational representative with the greatest knowledge about a subject; instead, it need only produce a person with knowledge whose testimony will be binding on the party. Rodriguez v. Pataki, 293 F.Supp 2d 305, (S.D.N.Y. 2003), affirmed 293 F.Supp. 2d. 305.
An organization must be careful in selecting and preparing its designee under the Rule. As stated above, the organization can be bound by what the designee testifies to. If a designee is not properly versed in the areas of inquiry, either through personal knowledge and/or education in those areas in connection with the deposition, the result can be that the organization is bound by that designee’s answers/non-answers. For instance, if an area of inquiry involves how a claim which is the subject of the litigation was investigated, and the designee testifies that no investigation occurred when one actually did, the company can be bound by that answer.
In the context of a Bankruptcy, the issue of a Notice of Deposition under Rule 30(b)6, which applies in Adversary Proceedings, sometimes raises unique challenges especially in the context of a Chapter 7 matter. In these cases, often there are no members of the organization available or necessarily willing to testify on the Debtor’s behalf. In these situations, consider the possibility of the Trustee or Plan Administrator testifying. The organization could also educate another individual under the “other persons” section of the Rule. However, the Debtor must stay aware that it will be bound by the individual that is identified and subsequently testifies.
“With Reasonable Particularity”
When serving a Notice or Subpoena under the Rule, a major consideration is to determine the areas of inquiry that you plan to pursue. The Rule requires that the matters for examination are described “with reasonable particularity.” Failure to describe the areas of inquiry with reasonable particularity can give opposing counsel grounds for a Protective Order or Motion to Quash.
Worse yet, you could get to the point where you are conducting the deposition of an adverse designee which cannot respond to a certain line of questioning that you have about the case because you did not adequately describe it in your Notice. This could cause you to have to Notice another designee to address that particular area of inquiry wasting time and money. An attorney sending a Notice should be sure to have fully considered all areas of information that they plan to ask a corporate designee before sending out the Notice.
Location of the Deposition
The issue of where a corporate designee deposition must occur often comes up. As a general rule, the deposition of a corporate designee must take place at the organization’s principal place of business or where the officers reside. Mitchell v. American Tobacco Co., 33 F.R.D. 262 (M.D.Pa.1963). However, Courts have held that it is not an inflexible rule and is subject to modification, in a court’s discretion, where justice so requires.
With today’s technology, parties are often able to come to an agreement to take corporate designees via video conference or similar platform. Such an arrangement requires some additional considerations. For instance, when the 30(b)6 is also a Notice duces tecum, arrangements to have any documents that the designee will produce well in advance to the scheduled deposition should be made. This will permit bates stamping and/or other pre-marking so that the remote deposition can be effectively taken. The cost of the remote deposition may also be a point that the parties must agree upon. However, as the cost of a remote deposition has decreased dramatically in recent years, this is less of an issue today.
If used properly, a Notice under Federal Rule of Civil Procedure 30(b)6 can be an effective tool to develop a case in litigation.