How to Address Three Big Challenges That Mar Corporate Testimony

The Bottom Line

• Rule 30(b)(6) depositions require careful planning, strategic witness selection, and thorough preparation.
• Counsel in these depositions must learn how to balance litigation defense and broader business concerns.
• By anticipating challenges and following best practices, counsel can avoid common traps and navigate these depositions successfully.

Rule 30(b)(6) depositions can be a powerful discovery tool in federal litigation, requiring organizations to designate and prepare witnesses to testify on their behalf. These types of depositions present unique opportunities and challenges to protect the company’s interests.

Rule 30(b)(6) provides for the deposition of a “public or private corporation, a partnership, an association, a governmental entity, or other entity.” The noticing party must describe the deposition topics with “reasonable particularity.” The recipient must produce one or more witnesses knowledgeable about the noticed topics.

Even for experienced attorneys, Rule 30(b)(6) depositions can seem like a trap. Counsel must balance the need to defend the litigation with broader business concerns, such as reputational risk, regulatory compliance, and internal resource constraints, and counsel must be attuned to those concerns in preparing witnesses.

Rule 30(b)(6) depositions pose three major challenges. But with proper planning, counsel can address them appropriately.

Careful Early Review

Challenge: Deposition topics often lack clarity, specificity, proportionality, or are requested without reasonable notice, and the failure to object can constitute a waiver of the objection.

Solution: Counsel should immediately examine the deposition notice for clarity, specificity, proportionality, and timing.

The party receiving a Rule 30(b)(6) deposition notice must understand the noticed topics because the responding party has an affirmative obligation to prepare its designees to testify “about information known or reasonably available to the organization.” Failing to properly prepare a witness can constitute sanctionable conduct under Rule 37(d)(1)(A).

The party receiving the deposition notice should assess whether the topics are unduly burdensome, duplicative of other discovery, and whether the information sought can be provided through less burdensome means.

Determining whether a notice is unduly burdensome is going to be case dependent and courts consider factors such as “the number of topics, the scope of information sought by the topics, the complexity of the cases, the amount of time allotted for the Rule 30(b)(6) deposition, the nature of the subject matter addressed in the topics (whether preparation may require expert or attorney input), and whether the information can be obtained more efficiently through other means.”

For example, it may be less burdensome for a party to respond to Rule 33(a)(2) contention interrogatories than preparing a witness for a Rule 30(b)(6) deposition. It’s also important to pay attention to the date range in the notice to ensure it covers the relevant time frame and isn’t unduly burdensome.

Because Rule 30(b)(6) depositions often require significant preparation, make sure that the date for the deposition contained in the notice is reasonable. For example, if the noticed topics require extensive document review, and document collection only recently started, a deposition date two weeks after receipt of the notice may be unreasonable and it may be appropriate to consider negotiating a deposition deadline after the production of documents.

If topics are objectionable, request clarification or serve written objections. Under the 2020 amendments to Rule 30(b)(6), the parties must meet to discuss the topics either before or after the deposition notice is served. Because this conferral process can be lengthy, assess the notice immediately upon receipt to ensure sufficient time to complete the conferral process and, if necessary, move for a protective order.

Selecting Appropriate Designee(s)

Challenge: Rule 30(b)(6) designees “bind” the company in the sense that their testimony is that of the company, and the failure to strategically select a witness can result in unfavorable testimony that will be difficult to disavow.

Solution: Because anyone can be a designee, the company has flexibility when choosing an appropriate designee, and it should strategically identify those who will testify on its behalf.

Choose witnesses who are articulate and able to learn unfamiliar topics—knowledge isn’t always enough. Sometimes, the best witness is the one who can best represent the company’s interests.

Consider how much time a potential designee has to prepare for the deposition. If a topic requires the designee to spend significant time reviewing relevant materials, make sure the selected designee has the time to commit to the preparation.

Also consider whether the designee is likely to be deposed as a Rule 30(b)(1) fact witness. If so, consider whether it is strategically advantageous to have the witness sit for one combined deposition or two separate depositions. It may be possible to sequence the (b)(1) deposition first and reach an agreement with the opposing party to designate that testimony as the company’s (b)(6) testimony, thereby avoiding a second deposition.

However, distinguishing between (b)(6) and (b)(1) questions at a deposition can be challenging and may be a reason to use a designee who wouldn’t otherwise be called as a (b)(1) fact witness.

If there are many topics, it may be difficult for one designee to cover all necessary information. But under Rule 30(b)(6), for each designee used, the noticing party will have seven hours of deposition time. This is because the seven-hour time limit for depositions under Rule 30 applies to each designee, rather than the Rule 30(b)(6) deposition as a whole.

So if four designees were used to cover all of the topics in a single Rule 30(b)(6) notice, the noticing party would have up to 28 hours of depositions time. Of course, the parties can always negotiate the amount of total time allocated for the deposition and, short of agreement, a party can seek a protective order to limit the amount of total deposition time.

Preparing the Designee

Challenge: The failure to adequately prepare the designee can result in sanctions.

Solution: Because the designee must testify about information “known or reasonably available” to the organization, preparation may require reviewing documents and depositions, interviewing current employees, and meeting with counsel. In some circumstances, reasonable preparation may require consulting with former employees.

It’s important to ensure consistency with corporate messaging, which may require reviewing prior company statements, regulatory filings, and public communications to ensure the witness’s testimony aligns with the organization’s official positions.

Ask the designee to identify responsive documents and other knowledgeable individuals. Interview those other individuals about the topic and ask them to identify additional knowledgeable individuals and any other responsive documents. Repeat this exercise until satisfied that the search for responsive information has been reasonably exhausted.

Next, consider whether to share those individuals’ knowledge with the designee. If so, schedule a meeting between them. Counsel should attend these meetings to make sure the designee obtains the right information to be reasonably prepared on the noticed topics.

Once the relevant universe of documents has been identified, place the documents in a binder, separated by topic. Don’t provide privileged documents to the witness, as it could lead to a waiver and those documents could be discoverable.

Consider how many preparation sessions will be needed given the scope of the topics and the witness. Use at least one of the sessions to develop a baseline understanding of what the designee knows and to cover general deposition preparation.

Devote other preparation sessions to a mock examination so the designee is adequately prepared. If you discover knowledge gaps during preparation, look for additional sources of information that can be used to reasonably prepare the designee.

Depending on the topics, consider the usefulness of an outline or a “cheat sheet.” For example, if the deposition topic requires a complicated chronology of events, or a long list of substances that allegedly resulted in a toxic exposure, an outline can prevent the deposition from becoming a memory test. If using an outline, make sure the designee takes ownership so it becomes the designee’s work product rather than the attorneys’.

Once the materials for the designee have been finalized, update the binder of documents provided to reflect the designee’s complete universe of information. Also consider including a list of all non-attorney individuals the designee spoke to during preparation, as well as any outlines the designee may use at the deposition.

It’s good practice to share any objections to the deposition notice with the designee to raise awareness of both the limitations counsel has placed on the topics and, if the notice includes a request for documents, the scope of any documents produced.

Bring at least three copies of these binders to the deposition. One copy will remain with counsel who will defend the (b)(6) deposition, one copy will stay with the designee so they can consult any of the materials during the deposition, and the final copy will go to the noticing attorney.

While providing opposing counsel the materials that were used to prepare the designee may seem counterintuitive, it’s useful to do so because of the obligation to demonstrate reasonable preparation of the (b)(6) deponent. This tends to minimize the likelihood that opposing counsel will challenge the witness’s preparation and maximize the likelihood that any challenge would be unsuccessful.

Looking Ahead

Rule 30(b)(6) depositions are a common feature of complex civil litigation. Corporate testimony under Rule 30(b)(6) often can be consequential in terms of case outcomes.

Accordingly, it’s critical that, upon receipt of the deposition, notice counsel immediately begins preparing for the deposition and think strategically about the noticed topics and the selection and preparation of designees.

Effective preparation will minimize the likelihood of motions practice and sanctions and maximize the likelihood that the designees will be effective spokespersons for the company.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Mary Elizabeth Gately is a partner in DLA Piper’s Washington, DC, litigation group focused on products liability, cross-border litigation, class actions, and reputation management.

Joshua Gardner is a partner at DLA Piper in Washington and a former senior attorney in the Federal Programs Branch, Civil Division at the Department of Justice.

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