Because the vast majority of cases
never go to trial and depositions form the sole in-person testimony either
party may elicit or live cross-examination opportunity, each deposition requires
careful preparation.
Care is particularly required
in preparing a corporate designee, an entity's designated witness to answer its
adversary's questions which will bind the entity in the litigation, to be deposed.
Avoiding costly mistakes and
discovery sanctions requires that in-house and outside counsel understand the governing
rules - - Federal Rule of Civil Procedure 30(b)(6) or Pennsylvania Rule of
Civil Procedure 4007.1(e) - - to carefully prepare for corporate designee
depositions.
Responding to Corporate Designee Deposition Notices
All Rule 30(b)(6) requires for
noticing a corporate designee deposition is a notice directed to the entity "describing
with reasonable particularity the matters for examination."
Limits do exist on the "matters
for examination" description barring qualifier "including, but not
limited to" or other language indicating that listed topics are not
exclusive which renders the notice overbroad and subject to a motion to quash. Reed v. Bennett, 193 F.R.D. 689, 692
(D. Kan. 2000).
Instead, to ensure that the entity
is capable of designating witnesses who can testify about each of the listed topics,
rather than face the "impossible task" of designating a witness who
can testify about all possible questions that may be asked, the adversary must define
the "outer limits" of the subject matter of the corporate designee's
deposition.
Upon receiving a Rule
30(b)(6) notice, an entity must produce deposition witness(es) capable of
giving "complete, knowledgeable and binding answers on behalf of the
corporation" about each of the topics listed in the deposition notice. Marker v. Union Fidelity Life Insurance,
125 F.R.D. 121, 126 (M.D.N.C. 1989).
Thus, the entity must educate
and prepare its designees to testify about any matter outside the designee's
personal knowledge specified by the Rule 30(b)(6) notice. Failure to do so "is tantamount to a
failure to appear and warrants the imposition of sanctions". United Technologies Motor Systems v.
Borg-Warner Automotive, Civil Action, LEXIS 21837, at *4 (E.D. Mich. Sept.
4, 1998).
Corporation May Designate Existing/Former Employees
Not limited to its present
employees, Rule 30(b)(6) permits an entity to designate existing or former "officers,
directors, or managing agents, or ... other persons who consent to testify on
its behalf" as its corporate designees.
In Beauperthuy v. 24 Hour
Fitness USA, LEXIS 104906, at *17 n.5 (N.D. Cal. Nov. 9, 2009), the court
held that "the text of Rule 30(b)(6) leaves no doubt that a former
employee can and should be designated as a Rule 30(b)(6) deponent, if the
former employee is the most knowledgeable individual and as long as the former
employee consents."
Rule 30(b)(6) does not limit
proper designees to people employed by or otherwise affiliated with the entity.
Any "other person who
consent[s]" to testify on behalf of the entity and has the requisite
knowledge and preparation may do so.
Questions Corporate Designees Must Answer
The corporate designee must
testify about both facts within his and the entity's knowledge and answer
questions about the entity's "subjective beliefs,"
"interpretation of documents and events" and "position" on
any of the topics in the deposition notice.
Some courts also permit questioning
beyond deposition notice topics' scope but the designee's answers are treated
like those of any other fact witness and do not bind the entity. Detoy v. City & County of San Francisco,
196 F.R.D. 362, 367 (N.D. Cal. 2000).
Other courts hold that the adversary
may not ask questions beyond the Rule 30(b)(6) notice listed topics, but the
entity's counsel cannot enforce that limitation by instructing the designee not
to answer the questions. Paparelli v.
Prudential Insurance Co. of America, 108 F.R.D. 727, 728-31 (D. Mass.
1985). Instead, the designee must answer
the questions to the extent possible and the adversary has no recourse if the
witness disclaims knowledge of matters outside the deposition notice's scope.
Effect Of Corporate Designee's Testimony
Within the deposition notice's
scope, the designee's answers are the entity's answers. Although the entity may later alter its
answers or positions, doing so subjects its representatives to
cross-examination at trial and the designee's deposition testimony may be admissible
as a prior inconsistent statement or a statement against interest.
Similarly, "if a party
states it has no knowledge or position as to a set of alleged facts or area of
inquiry at a Rule 30(b)(6) deposition", the entity "cannot argue for
a contrary position at trial without introducing evidence explaining the
reasons for the change".
A corporate designee's deposition
presents both risks and opportunities for the entity involved in litigation. By understanding the rules governing such
depositions, entities' in-house and outside counsel may entities use them to
great effect while minimizing the risks to their client's litigation positions.
