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Practical Tips for Mastering the 30(b)(6) Deposition, Michele Hayes Dinterman

September 2024

DRI The Brief Case | September 2024

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Rule 30(b)(6) of the Federal Rules of Civil Procedure requires an entity to prepare one or more witnesses to give answers on the entity’s behalf with respect to the noticed subjects. Most state court rules mirror the language in the federal rule with only slight deviations. When prepared well, a 30(b)(6) witness can be a powerful tool to tell a company’s story and theme. However, a 30(b)(6) witness deposition can be a devastating blow to your client’s case if preparation for it is not taken seriously.

Here are some practical tips to keep in mind when preparing for and defending a 30(b)(6) deposition:

1. Review & narrow the scope of the notice. Once the organization receives an opposing party’s notice to take a deposition under Rule 30(b)(6):

  • Review the notice carefully to ensure that it is proper and identifies the deposition topics with reasonable particularity.
  • Schedule a “meet and confer” (in person or virtually) with opposing counsel to push for as much clarity as possible on the deposition topics and, if necessary, serve written objections to opposing counsel prior to the meet and confer.
  • If conferring with opposing counsel does not cure the notice, a protective order must be sought. Doing so should only be pursued after attempting in good faith to meet and confer with opposing counsel and such attempt has failed.
  • A protective order must be obtained before the date of the deposition and a pending motion for protective order alone does not excuse the deponent from appearing at the deposition. Common grounds for a protective order include: the topics are not asserted with reasonable particularity; the notice imposes an unreasonable timeframe to prepare a designee to testify; or the topics seek privileged information or trade secrets.
  • Do not wait until you are at the deposition to argue about the scope, or you may have to produce your witness twice. This could result in inconsistent testimony, an upset client, and even sanctions.

2. Identify the proper witness(es). A deposition under Rule 30(b)(6) is issued to the organization and permits the organization to pick who will represent it. In identifying the witness some considerations include:

  • Pick the best witness, not necessarily the most knowledgeable one.
  • Find a witness (or witnesses) that is (are) willing to learn about the designated topics since the witness must testify about information known to the organization.
  • An intelligent and well-spoken witness is often a better choice than the witness who happens to have the most knowledge but is easily confused or unlikeable.
  • Consider whether the witness can articulate their thoughts well, if they have experience testifying, and how well they can retain information about the case/company.
  • Choose someone who will prepare adequately as the witness has a duty to review whatever information is reasonably at the disposal of the company.
  • Utilize in-house attorneys and executives to give you information on how well the employee would do at the deposition.
  • Try and give yourself enough time to be able to change witnesses, if necessary.

3. Prepare the deponent(s). Once the witness is identified, preparing the witness can build their confidence with the process and help them represent the organization well. Some considerations include:

  • Give yourself plenty of time to prepare the witness. Preparation sessions several weeks in advance of the deposition allow the witness time to research and prepare before the next session. (Zoom is a great tool to set up several short preparation sessions with a busy witness.)
  • Make sure that the witness is familiar with the notice and which topics they are designated to speak on.
  • Prepare the witness for difficult lines of questioning and reduce potential surprises.
  • Show the witness key documents and discuss other documents.
  • Make sure the witness is aware of “bad” documents or facts so that they are not surprised when opposing counsel wants to discuss it in detail.
  • Remind the witness that they do not have to adopt opposing counsel’s language in their response.
  • Prepare the witness to speak to the corporation’s subjective beliefs and opinions.
  • Work with the witness to prepare a set of talking points that relate to a theme of your defense of the case. The witness can be a powerful way for the corporation to tell its story.
  • Make sure the witness understands that they are responding on behalf of the corporation and when the questioner says “you” they are referring to the corporation.
  • Keep in mind your professional ethics and remember that witness preparation should never include witness “coaching”.

4. Defend the deposition. At the deposition, counsel for the organization (you) should make strategic objections to protect the company and the record. Some considerations include:

  • Objections to form (such as asked and answered) are permissible.
  • Object to questions that invade a privilege to ensure that the issue is preserved.
  • Object to any questions attempting to characterize the witness as the “most knowledgeable witness.”
  • Object to off-topic questions as outside the scope of the notice or as exceeding the scope of the corporate knowledge of the witness.
  • If more than one witness is designated for the 30(b)(6) deposition, you can object on the grounds that the question exceeds the corporate knowledge possessed by that witness.
  • If a question exceeds the noticed deposition topics, note on the record that it exceeds the deposition notice and that the witness has not been prepared to answer the question on behalf of the corporation but that they can answer based on their individual knowledge, however, the answer will not bind the corporation.
  • Refrain from instructing the witness not to answer unless it is to preserve privilege or enforce a limitation on discovery imposed by the court.
  • Have the witness clarify if they do not know something because the entity truly does not have access to the information.
  • If a party objects to a topic and refuses to allow a witness to speak on it, a court could preclude that party from offering testimony on that topic during trial.
  • Pay attention to the witness’s needs and, if a break is needed, request one.
  • Keep in mind your professional ethics and remember that zealous advocacy/defense does not require an abandonment of civility.

Defending Rule 30(b)(6) depositions are an important part of your client’s case. With strong preparation, testimony obtained from a 30(b)(6) witness can be an asset to your case. If you have any questions, contact Michele H. Dinterman (mhdinterman@nilesbarton.com).

Michele will also be co-presenting a DRI webinar on A Young Lawyer's Guide to Preparing Corporate Witnesses and Telling a “Company Story” as part of A Young Lawyer's Guide To Handling A Case, From Evaluation to Arbitration on Wednesday, September 25, from 11 a.m. to 12 p.m. CDT.