If you’re familiar with 30(b)(6) depositions then you know they can be make-or-break propositions for your case. I’ve written
about how you can potentially win your entire case if the designee for the corporation is unprepared or gives a lot of “I don’t know” answers.
This is an excellent summary of the rules and requirements of a 30(b)(6) deposition from U.S. v. Taylor
, 166 F.R.D. 356 (M.D.N.C. 1996):
"The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. The designated witness is “speaking for the corporation,” and this testimony must be distinguished from that of a “mere corporate employee” whose deposition is not considered that of the corporation and whose presence must be obtained by subpoena. . . . The corporation appears vicariously through its designee. … If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation. Thus, the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. The Rule 30(b)(6) designee does not give his personal opinions. Rather, he presents the corporation’s “position” on the topic. Moreover, the designee must not only testify about facts within the corporation’s knowledge, but also its subjective beliefs and opinions. The corporation must provide its interpretation of documents and events. (citations omitted)."
So if you’re defending a 30(b)(6) deposition what is the best strategy given these rules? Most lawyers will work with their clients to pick one or more people who are personally knowledgeable about the events that relate to the topics in the 30(b)(6) deposition. I have a different suggestion. Designate a lawyer to act at as the 30(b)(6) witness.
This is a blog post so I’m not going to take the time to research and see if this has been permitted, but given the rules set forth in Taylor
and its myriad supporting cases, it seems that this option would be permissible. There likely would be a restriction that the testifying lawyer can’t also be one of the lawyers actively litigating or trying the case. There’s a good bit of law on the subject of acting as a counsel and a witness in the same case
. But, if you engage a lawyer who is otherwise not involved in the case then I see no reason not to try this strategy. The only downside if you’re permitted to do so is that the lawyer doesn’t have personal knowledge, but personal knowledge is not required for a 30(b)(6) deponent. So to do it right, the lawyer will need to be thoroughly prepped on the 30(b)(6) notice topics, which will certainly take time and cost the client money. No one said litigation is cheap.
The advantage of designating a lawyer to act as the corporate designee (if you pick the right lawyer) is that you should have a VERY well prepped witness who (i) knows all the tricks of an examining attorney, (ii) knows the “correct” way to answer questions to put the corporation in the best possible light, (iii) probably will be more eloquent in explaining answers, and (iv) understands the corporations obligations as set forth in the Taylor
It may not work for every case, but if you have an extremely important 30(b)(6) deposition to defend at least consider getting an “expert” witness to act as the designee. It may be the best decision that you make in the entire litigation.