By Samuel S. Woodhouse, Esq.[1]

Imagine for a moment that you had to pick someone to answer a series of questions on your behalf. Who would you pick? What if you were bound by whatever answers that person would give on your behalf, would that change the person whom you would select? This is precisely the dilemma that lawyers and corporate clients face when selecting a corporate designee for a 30(b)(6) deposition. The selection of the 30(b)(6) corporate designee is one of the most important decisions that a lawyer and a client will make in a lawsuit. Therefore, this selection should be carefully considered and strategically made.

Rule 30(b)(6) of the Federal Rules of Civil Procedure allows an entire corporation to speak through one agent. A notice of deposition made pursuant to Rule 30(b)(6) requires the corporation to produce one or more individuals to testify with respect to matters set out in the deposition notice or subpoena. Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989). The corporation must not only designate a person to testify, but more importantly, prepare the person so that he or she can give complete, knowledgeable and binding answers on behalf of the corporation. Id. This is a critical aspect of Rule 30(b)(6).

Since the 30(b)(6) witness is speaking on behalf of the corporation, the “right” person must be selected. This person should not be selected merely because the person holds a particular position or title. This person should not be selected simply because he or she has been the point of contact at the company for the lawyer representing the company in the litigation. Instead, the person selected should be a person: (1) who presents well; (2) is knowledgeable about the subject matter (or can learn the subject matter); and (3) is friendly to the company’s interests (as opposed to a disgruntled employee or an employee who is indifferent to the company’s needs). Under Rule 30(b)(6), there is no distinction between the corporate representative and the corporation. See United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). As such, courts have consistently held that corporations must make a conscientious good-faith effort to designate the person having knowledge of the matters sought by the opposing party. Mitsui & Co. v. Puerto Rico Water Res. Auth., 93 F.R.D. 62, 67 (D.P.R. 1981).

A Rule 30(b)(6) designee is not required to give his or her personal opinions; he or she presents the corporation’s “position” on the topic. Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. Tex. 2006). Because the corporation is not required to designate someone with “personal knowledge” to appear on its behalf, the lawyer and company have some flexibility about who they select to represent the company. See Reed v. Bennett, 193 F.R.D. 689, 694 (D. Kan. 2000). I, therefore, suggest that you put your best player in the game. Bear in mind, your best player may change depending on the subject matter. Carefully consider the subject areas listed in the notice of deposition and ask yourself: who is the best person to answer questions about each topic area? It may be that you need to designate more than one person because of the various topic areas identified. If there are five areas, perhaps Jane Doe is best for topics 1 and 3, and Bill Jones is best for topics 2, 4 and 5.

Remember your best free throw shooter may not be your best 3-point shooter, and your best 3-point shooter may not be your best defensive player. Tailor your selection to your specific needs. Keep in mind that if you designate more than one person as your 30(b)(6) witness, “each person” you designate is allowed to be deposed for seven hours. Rule 30(d)(2) of the Federal Rules of Civil Procedure provides that “[u]nless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours.” The 2000 Advisory Committee Notes to this amendment provide that “[f]or purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition” regardless of the number of witnesses designated. See also Sabre v. First Dominion Capital, 51 Fed. R. Serv. 3d (Callaghan) 1405, No. 2001 U.S. Dist. LEXIS 20637 (S.D.N.Y. Dec. 12, 2001).

Since a corporation has a duty to present a knowledgeable witness for a 30(b)(6) deposition, it necessarily follows that the corporation has a duty to prepare its designee. See Taylor, 166 F.R.D. at 361. As such, a notice of deposition that designates topics for examination with reasonable particularity requires a corporation to produce a person or persons and to prepare them so that they can give complete, knowledgeable, and binding answers on behalf of the corporation. Given this, once the “right” person is selected, you must spend a sufficient amount of time preparing him or her for the deposition. You absolutely cannot meet with the witness two hours before the deposition and attempt to prepare him or her. There is simply too much at stake.

The prep session needs to be a long-term project where you roll up your sleeves and really work hard to prepare your witness or witnesses. I am reminded of a quote from the former heavyweight boxing champion Joe Frazier. He said: “You can map out a fight plan or a life plan. But when the action starts, you’re down to your reflexes. That’s where your road work shows. If you cheated on that in the dark of the morning, you’re getting found out under the bright lights.” If your witness is not prepared it will show during the witness’s deposition! In short, be purposeful in the selection of your 30(b)(6) witnesses, and prepare them well.

References

[1] Sam Woodhouse is the Founder and Managing Partner of The Woodhouse Law Firm. He represents major corporations in matters involving business-to-business litigation, business counseling, contract disputes and products liability lawsuits. Sam has an LL.M. in Trial Advocacy, and he has tried jury trials, non-jury trials and arbitrations in state and federal courts.