The Art of Narrowing Rule 30(b)(6) Deposition Notices

Organizational depositions of party defendants are becoming a mainstay of civil litigation.  Under FRCP 30(b)(6) and ORCP 39(c)(6) (collectively “Rule 30(b)(6)”), a party to a lawsuit has the right to issue a notice for the deposition of a “public or private corporation, a partnership, an association, a governmental agency or other entity.”  The notice must “describe with reasonable particularity the matters for examination.”   Rule 30(b)(6).  An organization that receives a Rule 30(b)(6) notice is then required to designate one or more representatives to testify about information that is “known” or “reasonably available” to the organization.   Id.

Litigants are increasingly using Rule 30(b)(6) depositions of party opponents for strategic purposes, and the burden on the organization to prepare for a Rule 30(b)(6) deposition can be quite onerous.  Since there is relatively little protection from a Rule 30(b)(6) deposition under the law, a lawyer defending a Rule 30(b)(6) deposition should work carefully and deliberately to narrow the scope of the notice – well in advance of the deposition itself. 

Originally published in the 2014, Issue 4 of The Verdict, a publication of the Oregon Association of Defense Counsel.

I.          Strategic use of Rule 30(b)(6) depositions.

Rule 30(b)(6) is designed to prevent organizations from “sandbagging” opponents at trial by making a “half-hearted inquiry” into matters before depositions “but a thorough and vigorous one before the trial.”  See, e.g., Bd. of Tr. of the Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008).  But lawyers have come to recognize other strategic advantages of taking an organization’s deposition, particularly the depositions of corporate defendants.

For example, where the deposition testimony of a corporate defendant’s employees is not admissible at trial, a party can use a Rule 30(b)(6) deposition to obtain binding, admissible statements from the corporation that can be presented at trial.  FRCP 32(a)(3); O.R.S. §  45.250(1)(b).  A Rule 30(b)(6) deposition taken early in a case can help a plaintiff quickly and efficiently identify relevant witnesses and documents.  Conversely, some lawyers take organizational depositions at the end of discovery to plug evidentiary holes, obtain testimony that the lawyer previously failed to obtain, and potentially – and sometimes improperly – take another shot at likely designees who were previously deposed.

II.        The burden on an organization that receives a Rule 30(b)(6) notice can be high.

An organization that receives a Rule 30(b)(6) notice is required to make a “conscientious, good-faith effort . . . to prepare [designees] to fully and unevasively answer questions about the designated subject matter.”  Bd. of Tr. of the Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008).  Depending on the complexity of the case and the breadth of the 30(b)(6) notice, meeting that standard can be a monumental undertaking.  And the failure to properly prepare and present witnesses to testify can result in severe sanctions under FRCP 37 and ORCP 46.

Since a Rule 30(b)(6) deposition is a deposition of the organization itself, the organization is required to gather institutional information and testify concerning its collective knowledge of the subjects identified in the Rule 30(b)(6) notice.  Rule 30(b)(6) requires the organization to designate witnesses who will testify not only to information that is “known” to the organization, but also to information that is “reasonably available.”  Thus, to properly prepare a designee for a Rule 30(b)(6) deposition, an organization’s designees typically need to gather and review extensive internal documents, and even obtain documents that are outside of the organization’s custody and control, but that are “reasonably available” to the organization.  This can be a time consuming and expensive endeavor.

In addition, where an organization’s designees do not have firsthand knowledge of a topic identified in the Rule 30(b)(6) notice,[1] the designees may need to seek information or confirm the accuracy of information from others.  This typically requires the designees to interview other employees of the organization, including available former employees.  Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Ltd., 2013 WL 4101811, *6-8 (D. Nev. Aug. 13, 2013).

III.       Narrowing the scope of the Rule 30(b)(6) deposition.

When confronted with a burdensome or improper Rule 30(b)(6) deposition notice, many lawyers mistakenly conclude that an organization simply needs to serve the noticing party with an objection or can instruct witnesses not to answer during the deposition itself.  Such a practice, however, does nothing to prohibit the noticing party from inquiring into the subject matters described in the Rule 30(b)(6) notice.  Nor does it excuse the organization from attending the deposition or from preparing designees to testify about the topics in the notice.  Instead, the organization must seek a protective order from the court in advance of the deposition.  See, e.g., Mitsui & Co. (U.S.A.), Inc. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62, 67 (D. P.R. 1981).

Prior to filing a motion for protective order, a lawyer defending a Rule 30(b)(6) deposition should first attempt to negotiate with opposing counsel to narrow the notice.  To the extent that an agreement cannot be reached, the lawyer should immediately move for a protective order from the court.  The motion for protective order acts to effectively stay the Rule 30(b)(6) deposition until the court resolves the motion.  FRCP 37(d)(2); ORCP 46 D.  Although, to avoid actual or perceived gamesmanship, the lawyer should file the motion for protective order as early as possible, and in some circumstances, seek an expedited resolution of the motion.

The lawyer should also be careful to ensure that the grounds for the motion are well founded.  There are relatively few protections from Rule 30(b)(6) depositions, and courts are hesitant to issue orders protecting an organization from the burden and expense of preparing for the deposition.   See Bd. of Tr. of the Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008) (a “burdensome” review of “voluminous documents” does not excuse the organization’s obligations under Rule 30(b)(6)); but see Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000) (the organization must be able to identify the “outer limits” of a Rule 30(b)(6) notice).

While case law dealing with protections from Rule 30(b)(6) depositions is fairly sparse, solid grounds for a protective order likely exist where the topics in the Rule 30(b)(6) notice are vague and ambiguous, seek privileged, trade secret, or commercially sensitive information, or where the notice imposes an unreasonable timeframe for the organization to adequately prepare designees to testify.  These issues, however, can typically be worked out between reasonable counsel or through the entry of a stipulated protective order.

Preparing for a Rule 30(b)(6) deposition can be a major undertaking.  But through simple negotiations and a timely, well-founded motion for protective order, an organization can lighten the burden of preparation and avoid sanctions or harmful admissions against the organization.

[1] There is a common misconception that Rule 30(b)(6) requires an organization to designate the “person most knowledgeable” to testify concerning the subject matters raised in a Rule 30(b)(6) notice.  The rule, however, states that an organization must designate “officers, directors, or managing agents, or . . . other persons who consent to testify” on the organization’s behalf.