eDiscovery Daily Blog
DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Five
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference? Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
Tom’s overview is split into six parts, so we’ll cover each part separately. The first part was last Monday, the second part was last Wednesday, the third part was last Friday and the fourth part was Monday, here’s the fifth part.
Specific Strategies to Consider
Some specific strategies to consider include:
Timing of the Deposition
As mentioned previously, strategic timing of the deposition can help streamline the issues and avoid future claims that discovery sought against the organization is a fishing expedition. To this point, it may be helpful to prepare an issue outline before preparing the deposition notice and using it to decide when to conduct the 30(b)(6) depo.
Do not agree to a question-by-question or objection-by-objection format
Some courts have ruled that a defendant should produce a Rule 30(b)(6) witness to testify on objectionable topics and counsel for the witness could then interpose objections on a question-by-question basis. Other courts have rejected this suggestion, calling it:
- A veiled attempt to depose the other party’s attorney. & Exch. Comm’n v. Merkin, 283 F.R.D. 689 (S.D. Fla. 2012), objections overruled, 283 F.R.D. 699 (S.D. Fla. 2012)
- An impermissible intrusion into work product & Exch. Comm’n v. SBM Inv. Certificates, Inc., Civil Action No. DKC 06-0866 (D. Md. Mar. 2, 2012)
- A violation of privileges and other protections. SEC v Rosenfeld, 97 CIV. 1467 (RPP), 1997 WL 576021, at *2-4 (S.D. Fla. April 18, 2002).
Seeking information about allegations in the complaint
Many courts have ruled that Rule 30(b)(6) depositions are not the proper vehicle for discovering facts about the allegations in a civil enforcement complaint, commenting that contention interrogatories are a more appropriate vehicle for fact discovery. CF, Equal Employment Opportunity Commission v. Texas Roadhouse, Inc., No. 11-11732-DJC, 2014 WL 4471521, (D. Mass. Sept. 9, 2014) and Equal Employment Opportunity Commission v. American International Group, No. 93 CIV 6390 (PKL) RLE, 1994 WL 376052 (S.D.N.Y. July 18, 1994).
Seeking discovery of third-party information
Defendants in an enforcement investigation usually recognize the State has gathered facts from third parties as part of their investigation. Rather than invest effort into written discovery or third-party depositions, some defendants attempt to elicit the State’s work product through 30(b)(6) depositions.
Topics that seek information regarding the knowledge of third parties, such as complaint information, persons and documents identified in initial disclosures, or information dealing with the substance of a third party’s knowledge, are improper for Rule 30(b)(6) purposes. If a defendant requires such information, it should conduct written discovery, subpoena the complaint agency, interview or even depose such third parties.
Protection of privileges
As noted previously, many cases discuss protection of the work product privilege. But other privileges may be at risk as well, including:
- Common Interest Privilege
- Deliberative Process Privilege
- The Law Enforcement Privilege
- State Secrets Privilege
Depositions of agencies
Depositions of government agencies are explicitly permitted under Rule 30(b)(6), but if the agency happens to be serving as trial counsel in an enforcement action and also conducted or supervised the underlying investigation, many courts refuse to permit the deposition.
The risk is that work product and other privileges overlapping as case facts become mixed with trial counsel’s mental processes and legal strategies. Although the general rule is that defendants have an absolute right to depose the government under Rule 30(b)(6), some courts have carved out exceptions and it is best to research the law in your jurisdiction.
Depositions of opposing counsel
The leading case on the standards for deposing opposing counsel is the Eighth Circuit case of Shelton v. American Motors Corporation. 805 F.2d 1323 (8th Cir. 1986) in which the court reaffirmed the general disapproval of attempts to depose opposing counsel. The Shelton court established a three-part test for situations in which a deposition of opposing counsel is sought, stating that the moving party must establish that:
- no other means exist to obtain the sought information;
- the information is relevant and non-privileged; and
- the information is crucial in the case.
Deposing the plaintiff
Several leading cases have granted protective orders to the government or denied defense motions to compel in cases where defendants have attempted to depose enforcement plaintiffs under Rule 30(b)(6).
Securities and Exchange Commission v. Rosenfeld, op cit
Securities and Exchange Commission v. Buntrock, 217 F.R.D. 441 (N.D. Ill. 2003).
Securities and Exchange Commission v. SBM Investment Certificates, Inc., D. Maryland, Civil Action No. DKC 2006-0866 (D. Md. Feb. 23, 2007)
Equal Employment Opportunity Commission v. Evans Fruit Company, Inc., 2:2011cv03093, (E.D. Wash. 2013)
Other cases have allowed Rule 30(b)(6) depositions of enforcement authorities to proceed as noticed, including.
Securities Exchange Commission v. Kramer, CASE NO.: 8:09-cv-455-T-23TBM (M.D. Fla. Apr. 1, 2011)
Securities and Exchange Commission v. Merkin, Case No. 11-23585-CIV, United States District Court, S.D. Florida, Miami Division. 3012
Securities and Exchange Commission v. McCabe, No. 2:2013cv00161 – Document 57 (D. Utah 2015)
Federal Trade Commission v. DIRECTV , Inc., Case No. 15-cv-01129-HSG. United States District Court, N.D. California. (2018)
E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, 918 F.Supp.2d 1171 (2013)
We’ll publish Part 6 – Conclusions – on Wednesday.
So, what do you think? Have you ever been a 30(b)(6) deponent? Or been involved in preparing one for testimony? As always, please share any comments you might have or if you’d like to know more about a particular topic.
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