Strategies for Defending 300(b)(6) Depositions · Strategies for Defending 30(b)(6) ... “H thiC...

Strategies for Defending30(b)(6) Depositions

Wednesday, September 5, 20127:15 a.m. – 9:00 a.m. | The Houstonian Hotel111 North Post Oak Lane | Houston, TX 77024

Overview of Topics

Selecting the 30(b)(6) representative.Responding to abuses.Is 30(b)(6) testimony binding on the corporation?Use of 30(b)(6) notice to verify compliance with document requests.

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The 4 Elements of Rule 30(b)(6)

The deposition notice may “name as the deponent [an organization] and describe with reasonable particularitythe matters on which examination is requested.”The named organization “shall designate one or more officers, directors, or managing agents, or other personswho consent to testify on its behalf”who consent to testify on its behalfThe named organization “may set forth, for each person designated, the matters on which the person will testify.” “The persons so designated shall testify as to matters known or reasonably available to the organization.”

3Emphasis added

Selecting the 30(b)(6)

RepresentativeRepresentative

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Selecting the 30(b)(6)

RepresentativeRepresentative

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You Are Not Limited To Current Employees

The 30(b)(6) Deponent Does Not Have to Be an Employee of the

Company

The Rule expressly recognizes the company’s right to designate “othercompany s right to designate other persons who consent to testify on its

behalf.”

6Fed. R. Civ. P. 30(b)(6) (emphasis added)

Selecting the 30(b)(6)

RepresentativeRepresentative

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The Corporation Must Designate a Knowledgeable Witness

The Company Has Wide Latitude in Designating its 30(b)(6)

RepresentativeThe designated witness is not required to possess personal knowledge.● The subject matter of the testimony is the knowledge of

the corporation, not of the individual.

The corporation is not required to designate a specific individual to testify at the 30(b)(6) deposition.

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The Corporation Must Exercise Good Faith in Preparing a 30(b)(6) Witness

“[The corporation receiving a 30(b)(6) notice must make] a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the requesting party] and to prepare those persons in [ q g p y] p p p

order that they can answer fully, completely, and unevasively, the questions posed…as to the relevant

subject matters.”

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Securities and Exchange Commission v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992) (emphasis added)

General 30(b)(6) WitnessPreparation Issues

Do not show witness anything you do not want other side to see.Make sure witness understands the key themes and issues in the case.Make sure witness understands all interview notes will beMake sure witness understands all interview notes will be produced.Prepare collection of documents reviewed by witness and be ready to produce it to other side.Make sure witness verifies factual information conveyed by counsel.Voluminous depositions? Prepare an index (that you do not mind other side seeing) to guide the witness.

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Selecting the 30(b)(6)

RepresentativeRepresentative

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The Dangers of Designating a Lawyer

Dangers of Designating Counsel:State v. Bedell

Plaintiff noticed deposition of hospital under West Virginia equivalent of 30(b)(6) seeking witness knowledgeable about internal accident investigation.The hospital designated its general counsel to testify

it t t tias its corporate representative.The only knowledge general counsel possessed of events at issue was derived from his interviews with hospital personnel and review of documents.

12State ex rel. United Hosp. Ctr. v. Bedell, 484 S.E.2d 199 (W.Va. 1997)

State v. Bedell

Plaintiff attempted to question the witness about the incident and investigation reports.Hospital instructed its general counsel not to answer based on the attorney-client privilege and work

d d iproduct doctrine.Plaintiff moved to compel, arguing that by designating the general counsel as its corporate representative, the hospital waived the privileges.

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484 S.E.2d 199 (W.Va. 1997)

The Bedell Court Finds Waiver

“The hospital could have designated and properly prepared someone other than

its general counsel to testify at the Rule 30(b)(6) deposition. Instead, the

hospital deliberately designated its l l k f hgeneral counsel to speak for the

corporation and thus, risked the possibility that the plaintiff would

delve into privileged matters relevant to the topics about which the general

counsel was designated to testify. . . .”

14484 S.E.2d at 216 (emphasis added)

Summary: There are Substantial Risks in Producing Lawyer as

Corporate Representative

Producing a witness who is not capable of disclosing the information sought without violating privileges is the equivalent of not presenting a witness at all. q p gThe witness must not only have the information, she must be able and willing to share it.

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Selecting the 30(b)(6)

RepresentativeRepresentative

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A Corporation Cannot Plead Ignorance

Lack of Institutional Knowledge Does Not Necessarily Excuse Corporation’s Failure to Designate a 30(b)(6) Witness

A corporation is not relieved of duty to product representative when matters are reasonably available through documents, past employees, or other sources.● United States v. Taylor, 166 F.R.D. 356, 359, 361 (M.D.N.C. 1996)

“A party does not fulfill its obligations at the Rule 30(b)(6) deposition by stating it has no knowledge or position with respect to a set of facts or area of inquiry within its knowledge or reasonably available”● Starlight Int'l Inc. v. Herlihy, 186 F.R.D. 626, 638 (D.Kan.1999)

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Responding to Abuses of the 30(b)(6) Deposition Process

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Responding to Abuses of the 30(b)(6) Deposition Process

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Deposition Questions Outside the Scope of the Subject Matters in the 30(b)(6)

Notice

Exceeding the Scope of the30(b)(6) Notice

Does a party have a right to issue a notice that describes subject of the deposition and then ignore its own notice?D t h i ht t i li it dDoes a party have a right to ignore a limited designation by the corporation? There is a split in the authorities on this point, but one rule is in the majority.

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Paparelli v. Prudential Ins. Co.(the minority view)

Plaintiff injured by “pre-opening” feature of elevator in high-rise building.Court issued Order compelling defendant to produce all documents involving similar p gaccidents.Defendant produced documents concerning a single claim, which prompted a 30(b)(6) notice.

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108 F.R.D. 727, 728 (D. Mass. 1985).

Plaintiff Seeks to Question Witness About Matters Outside Scope of

30(b)(6) Notice

Notice sought witness knowledgeable about “the details of any search conducted by Westinghouse in an endeavor to comply with the attached order.”At deposition plaintiff sought to question witness p p g qabout an internal memo obtained in other litigation against defendant.Defendants’ counsel instructed witness not to answer. Plaintiff sought sanctions.

22108 F.R.D. 727, 728 (D. Mass. 1985)

Paparelli Court Concludes Questions Should be Limited to Topics in Notice

Court finds nothing in text of Rule or Advisory Notes indicating examination must be limited to subjects in Notice.But Court concludes such a limitation is implied by procedures set forth in the rule and by the reasons for the rule's adoption as noted by the Advisory Committee.

23108 F.R.D. 727, 729-30 (D. Mass. 1985)

Paparelli Concludes Questions in 30(b)(6) Notice Should be Limited

“It makes no sense for a party to state in a notice that it wishes to examine a representative of a corporation on

certain matters, have the corporation designate the person most knowledgeable with respect to thoseperson most knowledgeable with respect to those

matters, and then to ask the representative about matters totally different from the ones listed in the

notice.”

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108 F.R.D. at 729-30 (emphasis added)

Paparelli: Questions Outside Scope of Notice Thwart Purpose of 30(b)(6)“[The] purpose of the rule would be effectively thwarted if a party could ask a representative of a corporation produced pursuant to a Rule 30(b)(6)

d iti ti t t tif t tt hi h t t lldeposition notice to testify as to matters which are totally unrelated to the matters listed in the notice and upon

which the representative is prepared to testify.”

25108 F.R.D. at 729-30 (emphasis added)

But Court Holds Defense Counsel Should Not Have Instructed Witness Not to Answer Questions Outside Scope

“None of the reasons given by counsel for the defendant Westinghouse for instructing the witness not to answer fall within the category where an answer would cause some serious harm, i.e. the answer would reveal trade secrets, privileged material, or other confidential material. . . . Accordingly, the instructions not to answer were improper and a violation of Rule 30(c) . . .”

26108 F.R.D. at 731 (emphasis added)

King v. Pratt & Whitney(the majority view)

Plaintiff served 30(b)(6) notices directed to 3 issues. Defendant designated 2 witnesses.At deposition, deponents were asked questions that went beyond scope of the 3 issueswent beyond scope of the 3 issues. Defendant's counsel objected, terminated the deposition, and sought a protective order to limit the scope of questioning to those areas described in the notices.

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161 F.R.D. 475 (S.D. Fla. 1995),

The King Court Declines to Follow Paparelli

“The answer is not clearly found on the face of the Rules.”“Rule 30(b)(6) leaves this issue open to question.”“H thi C t b li th t th i b tt“However, this Court believes that there is a better reading of the Rule and declines to follow Paparelli.”

28161 F.R.D. at 476 (emphasis added)

King Court: Examining Party Should Not Have to Re-Notice Witness

“Rule 30(b)(6) should not be read to confer some special privilege on a corporate deponent responding to this type

of notice. Clearly, Plaintiff could simply re-notice a d t d th l ti i i d kWitnessdeponent under the regular notice provisions and ask

him the same questions that were objected to. However, Plaintiff should not be forced to jump through

that extra hoop absent some compelling reason.”

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161 F.R.D. at 476 (emphasis added)

Challenges Posed by the KingRule

Difficulty in making the record clear as to when testimony is being elicited from a corporate representative rather than from a fact witness.Difficulty in determining whether a particularDifficulty in determining whether a particular passage of testimony in a transcript is binding on the corporation or whether it is simply the personal testimony of a single witness.

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Strategy for Responding to Questions Outside Scope of 30(b)(6) Notice

Assume your witness will be deposed outside the scope of the 30(b)(6) notice.● Arm witness with overview of case.

Make a tentative decision ahead of time whether to seek protective order for questions outside scope of notice.

P lli Ki j i di ti ?● Paparelli or King jurisdiction? ● Consider: do you want this witness deposed twice?

Seek agreement with opposing counsel to ask 30(b)(6) question in a single segment followed by general deposition.● Make record clear as to whether testimony is within or outside

30(b)(6) topic.

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Responding to Abuses of the 30(b)(6) Deposition Process

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Demands for Witnesses to Explain a Party’s Defenses and Allegations

“The matters upon which

Using a 30(b)(6) Notice to Explore Contentions and

Allegations

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The matters upon which examination is being requested include: The respective party’s allegations and defenses in the above styled and numbered cause”

Interrogatories, Not 30(b)(6) Notices, Should be Used for Contention Inquiries

“Some inquiries are better answered through contention interrogatories wherein the client can have the assistance of the attorney in answering complicated questions involving legal issues. Fed. R. Civ. P. 33(c).

Nothing said here is meant to foreclose such a procedure merely because a party is a corporation subject to Fed. R.

Civ. P. 30(b)(6). Contention interrogatories do not implicate attorney work product.”

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United States v. Taylor, 166 F.R.D. 356 (M.D.N.C. 1996) (emphasis added)

Whether a Rule 30(b)(6) Deposition or a Contention Interrogatory is More Appropriate will be a Case-by-Case Determination.

Contention interrogatory, not 30(b)(6) deposition, more appropriate in complex and highly technical lawsuit

M C i k M I T l d I d i I 134● McCormick-Morgan, Inc. v. Teledyne Industries, Inc., 134 F.R.D. 275, 286 (N.D. Cal.), rev'd on other grounds, 765 F. Supp. 611 (N.D. Cal. 1991)

30(b)(6) deposition, not contention interrogatories, more appropriate where designee has expertise to answer questions.● Protective Nat. Ins. v. Commonwealth Ins., 137 F.R.D. 267,

282-83 (D. Neb. 1989)

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Is the Corporate Representative’s

Testimony Binding on theTestimony Binding on the Corporation?

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It Depends on What is Meant by “Binding”

There is Ambiguity Regarding What is Meant by “Binding the

Corporation”All courts seem to agree that testimony of Rule 30(b)(6) corporate representatives "binds" the corporation● But there is a split in authorities as to what practical

impact of this is. To what extent is such testimony rebuttable like testimony of any other witness, including other corporate employees?

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30(b)(6) Statements are Not Judicial Admissions

“[A]nswers given at a Rule 30(b)(6) deposition are not judicial admissions.”● United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C. 1996)

A corporation is not “estopped from denying the truth of [30(b)(6)] deposition testimony ”[30(b)(6)] deposition testimony.● See R&B Appliance v. Amana , 258 F.3d 783, 787-87 (8th Cir. 2001)

“[T]estimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes.”● Indus. Hard Chrome v. Hetran, Inc., 92 F.Supp. 2d 786, 791 (N.D.

Ill. 2000)

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.

R&B Appliance v. Amana Co.

R&B sued Amana for breach of an obligation to repurchase inventory.Amana’s obligation to repurchase was contingent on R&B’s termination of a Distribution Agreement.R&B relied on 30(b)(6) testimony of AmanaR&B relied on 30(b)(6) testimony of Amana representative who testified Agreement had terminated.At trial, corporate representative testified his deposition testimony had been in error and denied there had been a termination.

39258 F.3d 783 (8th Cir. 2001)

R&B Court: A Corporation is Free to Contradict its 30(b)(6) Representative at Trial

“Although Amana is certainly bound by Mr. Schnack'stestimony, it is no more bound than any witness is by

his or her prior deposition testimony. A witness is p p yfree to testify differently from the way he or she testified

in a deposition, albeit at the risk of having his or her credibility impeached by introduction of the deposition. .

. . Amana was thus free to assert at trial that the Distribution Agreement had not been terminated.”

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258 F.3d at 786-87 (emphasis added)

At Summary Judgment Stage, 30(b)(6) Testimony Becomes

More Difficult to Contradict

The corporation cannot create a genuine issue of fact merely by submitting an affidavit that contradicts a corporate representative’s prior sworn testimony.● S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.2d 489, 495 (5th Cir. 1996)

“Unless it can prove that the information was not known orUnless it can prove that the information was not known or was inaccessible, a corporation cannot later proffer new or different allegations [in a summary judgment affidavit] that could have been made at the time of the 30(b)(6) deposition.”● Rainey v. American Forest & Paper, 26 F. Supp.2d 82, 94 (D.D.C.

1998).

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Rainey Court Takes Hard Line on Binding Effect of 30(b)(6) Testimony“By commissioning the designee as the voice of the corporation, the Rule obligates a corporate party to

prepare its designee to be able to give binding answers in i b h lf U l i h h i f iits behalf. . . . Unless it can prove that the information

was not known or was inaccessible, a corporation cannot later proffer new or different allegations that

could have been made at the time of the 30(b)(6) deposition.”

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Rainey v. American Forest & Paper, 26 F. Supp.2d 82, 94 (D.D.C. 1998) (internal quotes omitted) (emphasis added)

Using 30(b)(6) Depositions to Verify Compliance With Document Requests

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In re Exxon Corporation, et al.208 S.W.3d 70 (Tex. App. – Beaumont 2006) `

In re Exxon Corporation, et al.

Plaintiffs claimed they developed cancer due to benzene exposure at Exxon plant.Plaintiffs served numerous and overbroad document requests.Exxon objected but made over 100,000 documents in file room available.Plaintiffs sought 30(b)(6) deposition to verify that Exxon had produced all responsive documents.

44208 S.W.3d 70 (Tex. App. – Beaumont 2006)

Exxon Plaintiffs Demanded Deposition of:

“[P]erson to testify fully as to the existence of documents previously requested in six sets of

requests for production, as to: (1) existence; (2)requests for production, as to: (1) existence; (2) electronic creation, duplication and storage; (3) document retention and destruction policies; (4) location; (5) organization, indexing and filing; (6)

method of search; (7) completeness; and (8) authenticity.”

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208 S.W. 3d at 72

Exxon Plaintiffs’ Stated Goal Was to Depose Exxon’s Lawyer

“There is some representative on behalf of Exxon who is knowledgeable about what documents are in that room,

knows the efforts that were made to gather those documents, is familiar with our Requests for Production

d f kl b li it’ l d E t tand we frankly believe it’s a lawyer and Exxon wants to protect the lawyer from being deposed.”

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Hearing Transcript from Motion for Sanctions quoted in Exxon’s Petition for Writ of Mandamus at 13 (emphasis added)

Exxon Urged Attorney-client and Work Product Privileges Barred

Deposition Exxon’s response to sanctions motion: "in-house and outside counsel compiled responsive documents.” It urged deposition notice invaded attorney-client and work product privileges.y p p gPlaintiffs: “If Exxon wants to make a lawyer its custodian of records and to comply with the Requests for Production of documents, so be it”Court ordered Exxon to produce witness to describe how documents gathered

47208 S.W. 3d at 73-74

Exxon Appellate Court Directs Trial Court to Vacate its Order on Two Grounds

The deposition would violate the work-product doctrine.

Plaintiffs failed to establish necessity for the deposition.

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Court: Exxon’s Process for Responding to Document Requests is

Protected by Work Product

The process by which Exxon responded to the document requests “necessarily and almost

exclusively concerns the mental impressions d l d i ti i ti f liti ti f t i l bdeveloped in anticipation of litigation or for trial by

or for a party or a party's representatives and consists of the attorney's representative's mental impressions,

opinions, conclusions, or legal theories subject to protection as work product and core work

product.”

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208 S.W. 3d at 75 (internal quotes omitted) (emphasis added)

Exxon Appellate Court Recognized Plaintiffs Were Seeking Depositionof Defense Counsel “It cannot reasonably be argued in this Court that the anticipated deponent is not one of Exxon's attorneys.”“In this case, the discovery is being conducted into how Exxon conducted this litigation as opposed tohow Exxon conducted this litigation, as opposed to Exxon's research on benzene. This inquiry is designed to inquire into mental processes of counseland is not reasonably calculated to lead to the discovery of admissible evidence.”

50208 S.W. 3d at 76 (emphasis added)

Exxon Plaintiffs Failed to DemonstrateNecessity for Deposition

Plaintiffs “failed to establish any document withholding or other discovery abuse by Exxon.”Plaintiffs “obtained the trial court's permission to depose witnesses purely for the purpose of exploringdepose witnesses purely for the purpose of exploring Exxon's efforts in responding to the discovery requests, without first establishing necessity for the inquiry.”“This is precisely the sort of fishing expedition forbidden by the Texas Supreme Court.”

51208 S.W. 3d at 76-77

Federal Rules Do Not Contemplate Sworn Oral Responses to Document

RequestsFRCP 34 establishes procedure for responding to document requests.“A party upon whom the request is served shallA party upon whom the request is served shall serve a written response within 30 days . . .”FRCP 34 does not require verified responses.● Compare to FRCP 33 (interrogatories) which

requires answers “in writing under oath.”

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Party Seeking 30(b)(6) Witness to Verify Document Production Must

Demonstrate Relevance to Issues in Case

“In arguing that [the 30(b)(6) notice] seeks discovery that is within the scope of Rule 26(b)(1), plaintiff does not explain why defendant's efforts to locate documents

are relevant to a claim or defense in this case. . . . to the extent [the notice] seeks to discover defense counsel's

legal theories regarding the manner in which defendant responded to plaintiff's requests.”

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EEOC v. Boeing Co., 2007 WL 1146446 *2 (D. Ariz. Apr. 18, 2007) (emphasis added)

Verification of Document Production Depositions Growing Trend inE-Discovery DisputesPlaintiff had duty to produce 30(b)(6) witness to demonstrate its “production was responsive, especially its electronic production.”● Heartland Hosp. v. Midwest, Inc., 2007 WL 1054279 at

*6 (D. Kan. Apr. 9, 2007)Plaintiff had duty to produce 30(b)(6) witness to testify about its “computers/mainframe” and what “queries were inputted” to search for records.● JB Hunt v. Adams, 2007 WL 789042 at *2 (E.D. Mich.

Mar. 14, 2007)54

Conclusion

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