Partner Sharon D. Stuart was featured in the January issue of DRI’s For The Defense Publication. Her article, “How to Highlight the Strengths of Your Corporate Witness,” discusses how best to select, prepare, and present your 30 (b)(6) witness. Download the article at Stuart – Jan FTD or read online at DRI For The Defense.
The notice contains numerous topics for examination and a voluminous document request. For months, you have anticipated receiving this notice, and while you had a general idea of the categories of testimony the plaintiff would request based on the issues in the case, you immediately see that this notice is broader than you expected, privilege issues are implicated, and the testimony of several witnesses may be required to satisfy the notice. You immediately get busy, notify your client, drill down on the substance of the notice in light of the facts and the law in the case, and begin analyzing who the most appropriate witnesses will be. You are well aware of how important a corporate representative’s testimony can be — it can literally make or break the case for your client. You are also aware of the onerous burden rule 30(b)(6) places on the corporation. See Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000) (“We understand that the burden upon the responding party, to prepare a knowledgeable Rule 30(b)(6) witness, maybe an onerous one, but we are not aware of any less onerous means of assuring that the position of a corporation, that is involved in litigation, can be fully and fairly explored.”). So, you need to be sure that you are taking the right steps to select, prepare and present your 30(b)(6) witness. The following are some pointers to help you make the most of this crucial part of your case.
Meet and Confer Under Amended Rule 30(b)(6)
Effective December 1, 2020, the U.S. Supreme Court approved the first-ever substantive amendment to Federal Rule of Civil Procedure 30(b)(6). The amendment is intended to address years of complaints by lawyers on both sides of the bar and to “facilitate [] collaborative efforts to achieve the proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1).” The amended Rule, with new portions italicized, provides:
(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. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. 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.
Based on the amended rule, one of the first steps the parties must take is to confer about the matters in the notice. Precisely what does this mean? It does not mean that the organization must let its opponent participate in the identification of the witnesses. To do so would contravene the longstanding law preventing the party issuing the notice from designating who will testify on behalf of the organization. It also does not mean that the parties must confer about the number and description of matters for examination. Although this could be a helpful area for discussion to clarify the scope of deposition and was considered by the Federal Rules Advisory Committee, it ultimately was not included in the amended rule. Nonetheless, you should consider addressing it with opposing counsel. The organization will be ultimately responsible for selecting and preparing the witness, and your client will benefit from an attempt to streamline the topics and to reach agreement on the length of the deposition. This is a good exercise if only to make a record about your attempts to achieve clarity as to the scope of the deposition prior to tendering your witness, in the event a dispute develops.
What it does mean is that the parties must confer “about the matters for examination.”Because this is such a vague requirement, it runs the risk of not being helpful, unless you, as counsel for the organization, proactively deal with opposing counsel to pare down “overlong or ambiguously worded lists of matters for examination,” ensure the deposition doesn’t become a fishing expedition to develop new theories and get enough information about opposing counsel’s objectives to make sure your witness is adequately prepared to address the topics in the notice. See congressional_rules_package_2020. The rule requires the noticing party to set out with reasonable particularity the matters for examination. If the notice is overly broad or ambiguous, or if the topics for examination are not meritorious, this is your chance to rein it in, refine the matters for examination, and designate the appropriate person. It is also your opportunity to work through logistical issues relating to the time and place of the deposition, the length of the deposition, and the number of witnesses. This is the first chance for you to help your witness by setting the stage for a successful deposition.
What if the Parties Cannot Agree on the Scope and Matters for Examination?
The federal rule has never provided a satisfactory remedy for obtaining relief from an improper 30(b)(6) notice, and the amendment did not improve that defect. If, after conferring on the 30(b)(6) notice, the parties cannot reach agreement, the organization must file a motion for a protective order, which does not guarantee adequate or timely relief. Thus, the earlier you can start addressing the topics with opposing counsel, the better. The amended rule encourages early discussion, in good faith, which should reduce the amount of motion practice related to 30(b)(6) depositions, but in the event, a motion is needed, the more time you have to file and get it heard, the better.
The issues on which motion practice may be needed typically fall into four categories: relevance, overburden, overbreadth, and privilege. Courts have begun to render decisions addressing these issues based on the new rule. These cases do provide some takeaways. First, blanket objections are insufficient — the party seeking protection should specifically articulate the objectionable categories or topics and explain the basis for seeking the court’s ruling preventing the discovery. See generally Whatley v. Canadian Pac. Ry. Ltd., 2021 U.S. Dist. LEXIS 93915 (D. N.D. May 14, 2021) (analyzing objections of relevance, overburdensomeness, and “discovery on discovery” relating to a motion to quash 30(b)(6) deposition). Additionally, the duty to confer before filing a motion is real. See, e.g., Buckley v. S.W.O.R.N. Prot. LLC, 2021 U.S. Dist. LEXIS 216456 (N.D. Ind. Nov. 9, 2021) (awarding plaintiff costs for defendants’ insufficient effort to confer before filing motion for protective order on 30(b)(6) notice).
Selecting a Corporate Representative
The rule requires that persons designated must testify about information known or reasonably available to the organization. The witness can be a current or former employee, and in some cases, a third party retained by the organization. The person chosen to testify does not need to have the most knowledge about a topic, but she must be able to provide complete, knowledgeable, and binding answers on the corporation’s behalf. See Am. Bar Ass’n Civil Discovery Standards 19(b) and 19(f). Often, you will have a choice to make—of two witnesses with similar know-ledge, which one will make the best witness? If there are areas where the better witness will need preparation, can you adequately educate him so that he can provide sufficient testimony to bind the corporation? It is usually wise to select the person who will best tell the company’s story.
If no current employee has sufficient knowledge to answer the questions, do you need to designate a third party such as a former employee? See Wilson v. Lakner, 228 F.R.D. 524, 528 (D. Md. 2005) (a third party with experience as a deponent may be the corporation’s best option in fulfilling its 30(b)(6) obligations). If you designate a third party, will the privilege apply to your communications with the witness under the applicable law? Should you designate a corporate witness with extensive personal involvement with the facts? Doing so often blurs the line between corporate knowledge and personal knowledge, which can be troublesome, particularly where the witness is noticed in his personal capacity and then is designated as a corporate representative as to certain topics. Can you limit the testimony to one witness and still satisfy the notice? The fewer wit-nesses you can designate, the better, to prevent the possibility for contradiction, limit the preparation time required, and limit the deposition (at least in federal court) to one seven-hour day, absent a court order. Fed. R. Civ. P. 30(b)(1).
Preparing to Prepare Your Witness
Preparing a witness who can gather and summarize everything that the company knows is one of the “obligation[s] that flows from the privilege of using the corporate form to do business.” QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676 (S.D. Fla. 2012). Not only is the best 30(b)(6) witness a well-prepared witness—it is the organization’s obligation to make sure the witness is adequately prepared to speak on its behalf. Although “[a]bsolute perfection is not required of a 30(b)(6) witness,” producing an unprepared Rule 30(b)(6) witness is tantamount to a failure to appear, possibly warranting sanctions under Federal Rule of Civil Procedure 37(d). Oro BRC4, LLC v. Silvertree Apts., 2021 U.S. Dist. LEXIS 108678, *11 (S.D. Ohio, June 10, 2021) (award-ing sanctions including attorney fees, costs, and a second deposition for defendant’s failure to adequately prepare corporate representative); Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006) (the witness must be able to discuss what the employer reasonably should have known, as well as its subjective beliefs and opinions). The witness should be educated as to the categories of testimony and documents sought by the notice, defense themes, safe spaces to come back to during testimony, and how to address anticipated thorny issues and trick questions. The lawyer must carefully select the documents for the witness to review and go over each of them with the witness. If the witness is being tendered on subjects on which she does not have personal knowledge, the lawyer must educate the witness, including potentially assigning the witness homework and organizing meetings with knowledgeable people to educate the witness.
Research Opposing Counsel
To adequately prepare your corporate wit-ness, you should find out everything you can about opposing counsel. If you have not participated in depositions with that particular lawyer, try to locate transcripts of representatives in other cases and talk to counsel who have defended depositions against her. What can you and the witness expect? What is the lawyer’s style? Does the lawyer use the rep-tile method? Are there certain questions this lawyer always asks of corporate deponents?
Research Your Client
You should familiarize yourself not only with the documents pertinent to your case but also your client’s public information. Read the website. Read the most recent Annual Report and securities filings. It is likely that your opponent will. These documents often contain statements and other information that opposing counsel will use in the form of questions to seek agreement from the wit-ness and then use those to trap the witness in an admission. By acquainting yourself with these documents, you can anticipate such questions and make sure your witness is ready for them.
Select Key Documents
Adequate witness preparation starts with adequate lawyer preparation. That means you must take the time to gather the documents responsive to the notice, analyze those documents, and select all key documents for the witness to review. Use the documents as a timeline or chronology that the witness can study. If circumstances warrant, such as if there are numerous dates or figures that a person simply can’t remember, the witness may use those documents to prepare a note to use in the deposition. In some cases, you may need to prepare a summary of the case. Of course, either of these will be discoverable, so you should be ready to turn them over and prepare them with that in mind.
Preparing the Deponent
Witness preparation should start with an outline of the basic rules — we can probably recite these in our sleep: listen carefully; make sure you understand the question before trying to answer it; don’t volunteer; don’t speculate; do not be arrogant, condescending, flippant or sarcastic; avoid being emotional; and of course, tell the truth. Make sure the witness knows what to wear, where to be, and when, and has any other logistical assistance needed.
Substantive preparation should include (1) the facts; (2) the company’s positions on issues; (3) subjective opinions or beliefs of the organization; and (4) interpretation of facts and events. See Krasney v. Nationwide Mut. Ins. Co., No. 06-cv-1164, 2007 WL 4365677 (D. Conn. Dec. 11, 2007). Preparation should begin with an overview of the case, review of the complaint and answer, and review of the 30(b)(6) notice. If the witness is already familiar with the facts, preparation might start with you asking the witness questions, so that you can hear her unvarnished version of the case. Gauge any areas of weakness and do the legwork necessary to fill in the gaps — this may involve pulling additional records or speaking with additional persons with knowledge. The witness will likely need to do his own research. That work may involve contacting former employees or reviewing their files since the corporation’s knowledge does not end when an employee leaves. The deponent should familiarize himself with how the company maintains its files. This exercise is often time-consuming and difficult, but that does not excuse the failure to do it. See Cal-zaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 F.R.D. 33, 37 (D. Mass. 2001) (“Even if the documents are voluminous and the review of those documents would be burdensome, the deponents are still required to review them in order to prepare themselves to be deposed.”)
If the information is reasonably available, the organization has an obligation to gather it for the deposition. It is a good idea for you, as counsel, to track each step taken by the witness to prepare on each topic so that you know exactly what has and has not been done. Keep detailed notes of any subjects on which the witness is deficient or as to which the organization simply lacks knowledge so that you can demonstrate the organization’s good faith in attempting to locate responsive information or ascertain that none exists. See Fraser Yachts Florida, Inc. v. Milne, No. 05-21168-CIV-JORDAN, 2007 WL 1113251 at *2 (S.D. Fla. Apr. 13, 2007) (the absence of corporate knowledge, by itself, may be relevant to the issues in a particular case).
If the witness has independent personal knowledge of the facts, prepare her to distinguish any answers based on her personal knowledge from those based on the organization’s knowledge. It is critical that the record clearly differentiates between the two.
If you haven’t already, this is the time to develop themes for the case. It will give context to your client’s position, which is helpful to a witness who needs to know what the goal of her testimony is. It will also give the wit-ness safe spaces to come back to in response to tough questioning. Finally, having your witness carry your theme is an important step in laying the foundation for your presentation to the jury if the case is tried.
Next, practice. Ask the questions you expect the witness to be asked in deposition, and talk through how to answer specific questions, especially the difficult ones. Make sure the witness can articulate the organization’s interpretation of events and documents, as well as its position on the claims and defenses asserted. In most cases, a mock examination is helpful, not only to expose areas of weakness but to help the witness get comfortable on the “hot seat” or on videotape. When facing an opponent that uses the rep-tile method, mock examination is imperative. In certain cases, you should hire a consultant to assist with witness preparation. If the deposition is to be conducted remotely, make sure to explain how it will work and how exhibits will be handled. Explain how objections at a deposition work, so the witness is not confused when you object during the deposition. For a comprehensive list of the expectations for corporate representatives, see the helpful opinion in QBE Ins., supra, in which the court laid out 39 guiding principles for 30(b)(6) deponents.
Privilege
If the witness’ testimony relies on privileged documents or communications, the organization risks waiver. Depending on the jurisdiction, review of privileged materials in preparation for the deposition may waive privilege. Make sure to consider the applicable privilege law in your jurisdiction. Any reliance on privileged information should be evaluated extremely carefully and documented with the client. Under what circumstances must privileged information be disclosed? Courts often struggle to analyze privilege issues in connection with 30(b)(6) depositions. While the organization is not required to disclose the opinions and strategies of counsel, the corporate representative must usually testify to facts that the company learned through its lawyers’ investigation. SEC v. Merkin, 283 F.R.D. 689, 697–698 (S.D. Fla. 2012). However, some courts hold that where the lawyers’ investigation so inter-twines facts with the lawyer’s mental impressions that they cannot be readily separated, privilege protects the investigation, particularly if other avenues for obtaining the information exist. See In re Cathode Ray Tube Antitrust Litigation, 2015 U.S. Dist. LEXIS 147413 at *219-20 (N.D. Cal. Oct. 5, 2015). In any event, when preparing the witness, counsel should keep in mind the facts the attorney knows that need to be shared with the wit-ness. Counsel should make sure the witness is careful not to stray from the facts into mental impressions and strategy of counsel.
In some cases, the person with the most knowledge about the case is a lawyer. Designation of a lawyer as witness can waive privilege or may run afoul of ethical rules resulting in disqualification as counsel, so this approach, while sometimes necessary, should be used with extreme caution. See Cartier v. Bertone Group, Inc., 404 F. Supp.2d 573 (S.D.N.Y. 2005). If a lawyer is the only person with knowledge of the topic areas, courts generally do not recognize a blanket privilege objection protecting the organization from tendering the lawyer as a corporate representative. Instead, the court may strike a balance to allow discovery of nonprivileged information and communications within the witness’s knowledge. See U.S. v. Stabl, Inc., 2018 WL 3758204 (D. Neb. Aug 8, 2018).
Objections
Be prepared for questions beyond the scope of the notice. Decide, in advance, based on local court practice and the law of your jurisdiction, whether to object to such questions and whether to allow the witness to answer them. Courts have issued mixed rulings on whether to allow 30(b)(6) questioning that exceeds the scope of the notice. Cf. Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 729 (D. Mass. 1985) (minority view—scope should be limited to the topics in the notice; counsel should let the witness answer, over objection, and then move to limit the scope of the deposition) with King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995) (majority view — rule does not limit the scope of the notice, although the noticing party has no remedy if the witness does not know the answers to questions outside the scope). This requires a decision whether to allow those answers in only the witness’ personal capacity, or whether to require a separate deposition solely in the witness’ personal capacity.
Generally, objections should be limited to the form of the question, or as otherwise prescribed by local practice. In some situations, counsel deposing the witness will insist that the defending lawyer make trial objections at the deposition. In that situation, defending counsel should be prepared to do so. Avoid speaking objections. See Fed. R. Civ. P. 30(d) Advisory Committee Notes (1993). Reserve instructions not to answer to questions that seek to invade the attorney-client privilege or other applicable privileges. See Fed. R. Evid. 502(g). At least one court has addressed this issue under amended Rule 30(b)(6), holding that, when the scope of questioning exceeded that to which the parties had agreed, defendant had a right to limit the testimony but improperly instructed the corporate witness not to answer. The court held that the defendant should have filed a motion to terminate or limit the deposition under Rule 30(d)(3), however, the court did not award sanctions. Kovich v. Nationwide Prop. & Cas. Ins. Co., 2021 U.S. Dist. LEXIS 224920, *7 (S.D. W. Va., Nov. 22, 2021).
Conclusion
Although 30(b)(6) preparation is tedious and time-consuming, by doing the required legwork upfront, designating the right representative, preparing the witness strategically and methodically, and preparing yourself to defend the deposition and the legal issues that arise, your chance of success is high, and your witness will have every opportunity to shine.
About Christian & Small
Christian & Small LLP represents a diverse clientele throughout Alabama, the Southeast, and the nation with clients ranging from individuals and closely-held businesses to Fortune 500 corporations. By matching highly experienced lawyers with specific client needs, Christian & Small develops innovative, effective, and efficient solutions for clients. With offices in Birmingham, metro-Jackson, Mississippi, and the Alabama Gulf Coast, Christian & Small focuses on the areas of litigation and business, is a member of the International Society of Primerus Law Firms, and is the only Alabama-based member firm in the Leadership Council on Legal Diversity. Our corporate social responsibility program is focused on education, and diversity is one of Christian & Small’s core values.
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