What’s the best way to win a case? Before trial. Trials are hugely expensive and incredibly risky propositions. So if you can win the case before trial you have done your job well. To win – not settle, but actually WIN – before trial you have to prevail on a motion that either (a) grants you an outright victory, such as a summary judgment motion, or (b) guts the other side’s case so entirely that they have no choice but to settle, such as excluding the other side’s expert in a Daubert hearing.
Here I’ll explain how to use a 30(b)(6) deposition, and the following motions as a potent weapon that will give you a victory before trial begins.
30(b)(6) depositions : A very brief overview
Generally, a 30(b)(6) deposition is a deposition of an entity. Since an entity cannot speak itself, it has to designate one or more people to speak on its behalf. The deposing lawyer sends a notice to the corporation and lists topics “with reasonable particularity” and the corporation selects one or more people to respond to each topic. Much more has been written about 30(b)(6) depositions of corporations and other entities, and I’m not going to explain all the basics here. This post is aimed at lawyers familiar with this process. If you’re reading this post and you have no idea what a 30(b)(6) deposition is then check out this link and this link for a primer.
How Most Defendants Prepare
Many defendants do not prepare adequately for a 30(b)(6) deposition. A lot of times the company (often a defendant) will select a single person to respond to all of the topics in a deposition. Then they will do little or nothing to prepare the witness adequately. Often this lax preparation is due to the defending attorney misunderstanding how the 30(b)(6) rule operates. They think that the rule is that the corporation is simply obligated to produce the “person most knowledgeable” about the listed topics. (That’s not the case, as I’ll explain below.) Other times the lawyers try to avoid producing someone as a deponent who will provide lots of information to the other side. Instead they find someone who knows or remembers very little. These lawyers think they have successfully thwarted your 30(b)(6) simply by producing someone who is not going to know much. This happens all too often, and it’s very bad… for them!
Federal Courts’ Handling of Poorly Prepped 30(b)(6) Designees
It’s not spelled out in the Federal Rules of Civil Procedure, but the Federal Courts have developed a body of case law that penalizes corporations that produce witnesses who are either unprepared or not knowledgeable about topics in the 30(b)(6) notice. Often when confronted with a witness who doesn’t know the answer to topics in the notice the party taking the deposition will file a motion to compel and a motion for sanctions. Those joint motions argue that the corporation has to produce a different witness and that the corporation should be sanctioned for wasting the deposing party’s time with an unprepared witness.
If the Court agrees that the witness was unprepared or uncooperative then it will grant these sanctions. The result is essentially a re-do of at least part of the deposition. See e.g. Pioneer Drive, LLC v. Nissan Diesel Am., Inc., 262 F.R.D. 552, 559-61 (D. Mont. 2009).
But there is a better tactic. What you want to do is show that the designee was IN FACT the RIGHT person for the deposition and that the person simply does not know about the topics you are raising. It’s counterintuitive because in other situations you want to make a witness remember. But here you WANT the right witness to acknowledge that he or she is the right person for the deposition but that they cannot remember. Notably the rule does not say that the corporation must produce the "person most knowledgeable" about each topic. The rule simply is that the corporation needs to produce someone who can answer the questions. So all you need to do is get the witness to admit that s/he is a good or proper designee. Don't try to get them to say they are the "most knowledgeable" since it is not required by the rules and the defending corporation will later argue that you are holding them to the wrong standard. All you need to get is an admission that the witness is the right person because they have prepared for the deposition and they they understand their obligations to answer on behalf of the corporation. If you can get these admissions in the deposition then you’re golden. Keep reading to see why.
Several Federal Courts have held that if a corporation cannot produce a person with knowledge of the facts in the 30(b)(6) notice then the corporation is PRECLUDED from introducing evidence about that topic at trial. There is a good bit of law on this topic, but two of the best cases that discuss this sanction are QBE Ins. Corp. v. Jorda Enterprises, Inc., Case No. 10-21107-CIV, ___F.R.D.___, 2012 WL 266431 (S.D. Fla., Jan. 30, 2012) and United States v. Taylor, 166 F.R.D. 356, 361 (M.D. N.C. 1996).
What you don’t want to do is set yourself up to re-do the deposition because you will have clued in the other side about the question you want to ask. The likely result is highly prepped, canned responses. Therefore you must avoid giving the witness an opportunity to explain why he could eventually become better prepared or that there is another person who would serve as a designee. Though tempting you must refrain from exploring how little the witness prepared. If you do that then, although you make the opposing side look bad, you give them an opportunity to argue they should be given another shot.
How to Capitalize
Instead go for the jugular. Here is the magic formula. Get the corporation, though its designee to admit:
- The the designee was properly prepared, and
- That s/he doesn’t know or doesn’t remember answers to your questions.
This one-two punch makes it difficult (if not impossible) for the corporation’s counsel to argue that they should be able to designate someone else to answer the questions in a “re-do.” And it stakes the corporation out as not taking a position on the topic, which allows you to argue in your motion that the corporation should be precluded from presenting any evidence on the topic at trial. From that point you should be able to cite the QBE and Taylor cases (and the other cases they cite) to make a compelling argument that the corporation is precluded from introducing evidence on those topics at trial.
Precluding evidence at trial is a major sanction so you don’t want to create a situation that induces the court to order a re-do. If you can win a preclusion of evidence then you’ve struck a gut shot at the other side, thereby setting yourself up for a much easier summary judgment motion or, if you still get to trial, a JNOV.