Electronic Discovery

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, the fourth part was Monday and the fifth part was Wednesday, here’s the sixth and final part.

Conclusions

The rule requires that the designated witness must be able to testify to the knowledge of the entire company on every area designated in your deposition notice. Further, the corporation must produce as many deponents as is necessary to respond to the areas of inquiry set out in the deposition notice. So, the notice should be carefully crafted and specific as to areas of inquiry.

On the other side, the corporation may designate more than one deponent, but it must clearly identify them and describe the areas on which each one will testify.  The deponents need not have firsthand knowledge of the events in question, but if they do not the corporation must provide them with the information necessary to provide “complete, knowledgeable, and binding answers on behalf of the corporation.”

Perhaps the most comprehensive decision on depositions of corporate defendants under Rule 30(b)(6) is QBE Insurance Corporation v. Jordan Enterprises, 277 F.R.D. 676, 687 (2012). In his opinion, Magistrate Judge Johnathon Goodman went beyond the ruling in the case and his decision set forth 39 rules for corporate depositions. They are included below for your reference and consideration.

39 Rules for 30(b)(6) Depositions:

1. The rule’s purpose is to streamline the discovery process. In particular, the rule serves a unique function in allowing a specialized form of deposition. Great Am. Ins. Co. v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 539 (D.Nev.2008).
2. The rule gives the corporation being deposed more control by allowing it to designate and prepare a witness to testify on the corporation’s behalf. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.1996).
3. It is a discovery device designed to avoid the bandying by corporations where individual officers or employees disclaim knowledge of facts clearly known to the corporation. Great Am., 251 F.R.D. at 539; Taylor, 166 F.R.D. at 361.
4. Therefore, one purpose is to curb any temptation by the corporation to shunt a discovering party from “pillar to post” by presenting deponents who each disclaim knowledge of facts known to someone in the corporation. Great Am., 251 F.R.D. at 539. Cf. Ierardi v. Lorillard, Inc., No. 90–7049, 1991 WL 66799, *2 (E.D.Pa. Apr. 15, 1991), at *2 (without the rule, a corporation could “hide behind the alleged ‘failed’ memories of its employees”).
5. Rule 30(b)(6) imposes burdens on both the discovering party and the designating party. The party seeking discovery must describe the matters with reasonable particularity and the responding corporation or entity must produce one or more witnesses who can testify about the corporation’s knowledge of the noticed topics. Great Am., 251 F.R.D. at 539.
6. The testimony of a Rule 30(b)(6) witness represents the collective knowledge of the corporation, not of the specific individual deponents. A Rule 30(b)(6) designee presents the corporation’s position on the listed topics. The corporation appears vicariously through its designees. Taylor, 166 F.R.D. at 361.
7. A corporation has an affirmative duty to provide a witness who is able to provide binding answers on behalf of the corporation. Ecclesiastes 9:10–11–12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1147 (10th Cir.2007).
8. Thus, a Rule 30(b)(6) witness need not have personal knowledge of the designated subject matter. Ecclesiastes, 497 F.3d at 1147; see generally Federal Civil Rules Handbook, 2012 Ed., at p. 838 (“the individual will often testify to matters outside the individual’s personal knowledge”).
9. The designating party has a duty to designate more than one deponent if necessary to respond to questions on all relevant areas of inquiry listed in the notice or subpoena. Ecclesiastes, 497 F.3d at 1147; Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 127 (M.D.N.C.1989) (duty to substitute another witness as a designee once the initial designee’s deficiencies become apparent during the deposition); Alexander v. F.B.I., 186 F.R.D. 137, 142 (D.D.C.1998).
10. The rule does not expressly or implicitly require the corporation or entity to produce the “person most knowledgeable” for the corporate deposition. Nevertheless, many lawyers issue notices and subpoenas which purport to require the producing party to provide “the most knowledgeable” witness. Not only does the rule not provide for this type of discovery demand, but the request is also fundamentally inconsistent with the purpose and dynamics of the rule. As noted, the witness/designee need not have any personal knowledge, so the “most knowledgeable” designation is illogical. PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894–95 (7th Cir.2004) (rejecting argument that trial court should not have credited the testimony of a witness who lacked personal knowledge because the witness was a 30(b)(6) witness and “was free to testify to matters outside his personal knowledge as long as they were within the corporate rubric”). Moreover, a corporation may have good grounds not to produce the “most knowledgeable” witness for a 30(b)(6) deposition. For example, that witness might be comparatively inarticulate, he might have a criminal conviction, she might be out of town for an extended trip, he might not be photogenic (for a videotaped deposition), she might prefer to avoid the entire process or the corporation might want to save the witness for trial. From a practical perspective, it might be difficult to determine which witness is the “most” knowledgeable on any given topic. And permitting a requesting party to insist on the production of the most knowledgeable witness could lead to time-wasting disputes over the comparative level of the witness’ knowledge. For example, if the rule authorized a demand for the most knowledgeable witness, then the requesting party could presumably obtain sanctions if the witness produced had the second most amount of knowledge. This result is impractical, inefficient and problematic, but it would be required by a procedure authorizing a demand for the “most” knowledgeable witness. But the rule says no such thing.
11. Although the rule is not designed to be a memory contest, the corporation has a duty to make a good faith, conscientious effort to designate appropriate persons and to prepare them to testify fully and non-evasively about the subjects. Great Am., 251 F.R.D. at 540.
12. The duty to prepare a Rule 30(b)(6) witness goes beyond matters personally known to the designee or to matters in which the designated witness was personally involved. Wilson v. Lakner, 228 F.R.D. 524 (D.Md.2005).
13. The duty extends to matters reasonably known to the responding party. Fowler v. State Farm Mut. Auto. Ins. Co., No. 07–00071 SPK–KSC, 2008 WL 4907865, at *4 (D.Haw.2008).
14. The mere fact that an organization no longer employs a person with knowledge on the specified topics does not relieve the organization of the duty to prepare and produce an appropriate designee. Id.; Great Am., 251 F.R.D. at 540; Taylor, 166 F.R.D. at 362; cf. Ecclesiastes, 497 F.3d at 1148 (in “one common scenario,” the corporation designates individuals who lack personal knowledge “but who have been educated about it”) (emphasis added).
15. Faced with such a scenario, a corporation with no current knowledgeable employees must prepare its designees by having them review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees’ files and, if necessary, interviews of former employees or others with knowledge. Great Am., 251 F.R.D. at 540; Federal Civil Rules Handbook, p. 838; see generally Wilson, 228 F.R.D. at 529 (preparation required from myriad sources, including “documents, present or past employees, or other sources”).
16. In other words, a corporation is expected to create an appropriate witness or witnesses from information reasonably available to it if necessary. Wilson, 228 F.R.D. at 529.
17. As a corollary to the corporation’s duty to designate and prepare a witness, it must perform a reasonable inquiry for information that is reasonably available to it. Fowler, 2008 WL 4907865 at *5; Marker, 125 F.R.D. at 127.
18. A corporate designee must provide responsive answers even if the information was transmitted through the corporation’s lawyers. Great Am., 251 F.R.D. at 542.
19. In responding to a Rule 30(b)(6) notice or subpoena, a corporation may not take the position that its documents state the company’s position and that a corporate deposition is there-fore unnecessary. Great Am., 251 F.R.D. at 540.
20. Similarly, a corporation cannot point to interrogatory answers in lieu of producing a live, in-person corporate representative designee. Marker, 125 F.R.D. at 127.
21. Preparing a Rule 30(b)(6) designee may be an onerous and burdensome task, but this consequence is merely an obligation that flows from the privilege of using the corporate form to do business. Great Am., 251 F.R.D. at 541; see also Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 38 (D.Mass.2001) (review required even if “documents are voluminous and the review of those documents would be burdensome”).
22. Not only must the designee testify about facts within the corporation’s collective knowledge, including the results of an investigation initiated for the purpose of complying with the 30(b)(6) notice, but the designee must also testify about the corporation’s position, beliefs and opinions. Great Am., 251 F.R.D. at 539; Taylor, 166 F.R.D. at 362 (designee presents corporation’s “position,” its “subjective beliefs and opinions” and its “interpretation of documents and events”).
23. The rule implicitly requires the corporation to review all matters known or reasonable available to it in preparation for a Rule 30(b)(6) deposition. Wilson, 228 F.R.D. at 529 (“good faith effort” to “find out the relevant facts” and to “collect information, review documents and interview employees with personal knowledge”).
24. If a corporation genuinely cannot provide an appropriate designee because it does not have the information, cannot reasonably obtain it from other sources and still lacks sufficient knowledge after reviewing all available information, then its obligations under the Rule cease. Calzaturficio, 201 F.R.D. at 39; see also Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 76 (D.Neb.1995).
25. If it becomes apparent during the deposition that the designee is unable to adequately respond to relevant questions on listed subjects, then the responding corporation has a duty to timely designate additional, supplemental witnesses as substitute deponents. Alexander, 186 F.R.D. at 142; Marker, 125 F.R.D. at 127.
26. The rule provides for a variety of sanctions for a party’s failure to comply with its Rule 30(b)(6) obligations, ranging from the imposition of costs to preclusion of testimony and even entry of default. Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 269 (2d Cir.1999) (affirming order precluding witness five witnesses from testifying at trial); see also Taylor, 166 F.R.D. at 363 (“panoply of sanctions”); Great Am., 251 F.R.D. at 543 (“variety of sanctions”).
27. The failure to properly designate a Rule 30(b)(6) witness can be deemed a nonappearance justifying the imposition of sanctions. (Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 198 (5th Cir.1993)). See also Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 305 (3d Cir.2000) (a 30(b)(6) witness who is unable to give useful information is “no more present for the deposition than would be a deponent who physically appears for the deposition but sleeps through it”).
28. When a corporation’s designee legitimately lacks the ability to answer relevant questions on listed topics and the corporation cannot better prepare that witness or obtain an adequate substitute, then the “we-don’t know” response can be binding on the corporation and prohibit it from offering evidence at trial on those points. Phrased differently, the lack of knowledge answer is itself an answer which will bind the corporation at trial. Fraser Yachts Fla., Inc. v. Milne, No. 05–21168–CIV–JORDAN, 2007 WL 1113251, at *3 (S.D.Fla. Apr. 13, 2007); Chick–fil–A v. ExxonMobil Corp., No. 08–61422–CIV, 2009 WL 3763032, at *13 (S.D.Fla. Nov. 10, 2009); see also Ierardi, 1991 WL 66799 at *3 (if party’s 30(b)(6) witness, because of lack of knowledge or failing memory, provides a “don’t know” answer, then “that is itself an answer” and the corporation “will be bound by that answer”).
29. Similarly, a corporation which provides a 30(b)(6) designee who testifies that the corporation does not know the answers to the questions “will not be allowed effectively to change its answer by introducing evidence at tri-al.” Ierardi v. Lorillard, No. 90–7049, 1991 WL 158911 (Aug. 13, 1991) (E.D.Pa. 1991, at *4).
30. The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush. Calzaturficio, 201 F.R.D. at 38; Wilson, 228 F.R.D. at 531; Taylor, 166 F.R.D. at 363 (rule prevents “sandbagging” and prevents corporation from making a “half-hearted inquiry before the deposition but a thorough and vigorous one before the trial”).
31. If the corporation pleads lack of memory after diligently conducting a good faith effort to obtain information reasonably available to it, then it still must present an opinion as to why the corporation believes the facts should be construed a certain way if it wishes to assert a position on that topic at trial. Taylor, 166 F.R.D. at 362.
32. There is nothing in the rule which prohibits a corporation from adopting the testimony or position of another witness in the case, though that would still require a corporate designee to formally provide testimony that the corporation’s position is that of another witness. Fraser Yachts, 2007 WL 1113251, at *3.
33. The rule does not expressly require the designee to personally review all information available to the corporation. So long as the designee is prepared to provide binding answers under oath, then the corporation may prepare the designee in whatever way it deems appropriate—as long as someone acting for the corporation reviews the available documents and information. Reichhold, Inc. v. U.S. Metals Ref. Co., No. 03–453(DRD), 2007 WL 1428559, at *9 (D.N.J. May 10, 2007) (the rule “does not require that the corporate designee personally conduct inter-views,” but, instead, requires him to testify to matters known or reasonably available to the corporation).
34. Rule 30(b)(6) means what it says. Corporations must act responsibly. They are not permitted to simply declare themselves to be mere document-gatherers. They must produce live witnesses who have been prepared to provide testimony to bind the entity and to explain the corporation’s position. Wilson, 228 F.R.D. at 531; Great Am., 251 F.R.D. at 542 (entitled to “corporation’s position”).
35. Despite the potentially difficult burdens which sometimes are generated by Rule 30(b)(6) depositions, the corporation is not without some protection, as it may timely seek a protective order or other relief. F.T.C. v. Noble Metals Int’l, Inc., 67 F.3d 766, 772 (9th Cir.1995).
36. Absolute perfection is not required of a 30(b)(6) witness. The mere fact that a designee could not answer every question on a certain topic does not necessarily mean that the corporation failed to comply with its obligation. Costa v. County of Burlington, 254 F.R.D. 187, 191 (D.N.J.2008); Chick–fil–A, 2009 WL 3763032, at *13 (explaining that the corporation need not produce witnesses who know every single factonly those relevant and material to the incidents underlying the lawsuit).
37. A corporation cannot be faulted for not interviewing individuals who refuse to speak with it. Costa, 254 F.R.D. at 191.
38. There are certain cases, such as subrogation cases or those involving dated facts, where a corporation will not be able to locate an appropriate 30(b)(6) witness. In those types of scenarios, the parties “should anticipate the unavailability of certain information” and “should expect that the inescapable and unstoppable forces of time have erased items from … memory which neither party can retrieve.” Barron v. Caterpillar, Inc., 168 F.R.D. 175, 178 (E.D.Pa.1996) (concluding that corporation did not act in bad faith when its designee did not remember events from almost thirty years earlier).
39. A corporation which expects its designee to be unprepared to testify on any relevant, listed topic at the corporate representative deposition should advise the requesting party of the designee’s limitations before the deposition begins. Calzaturficio, 201 F.R.D. at 39.

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.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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:

1. 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)
2. 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)
3. 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:

1. Common Interest Privilege
2. Deliberative Process Privilege
3. The Law Enforcement Privilege
4. 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).

These include:

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.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.