Defending Rule 30(b)(6) Corporate Depositions in Employment …media.straffordpub.com/products/defending-rule-30-b-6... · 2015. 5. 27. · Selecting the 30(b)(6) Witness(es) •

Defending Rule 30(b)(6) Corporate

Depositions in Employment Litigation Best Practices for Responding to a Deposition Notice, Selecting and Preparing Witnesses

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WEDNESDAY, MAY 27, 2015

Presenting a live 90-minute webinar with interactive Q&A

Brian M. Brown, Shareholder, Thorndal Armstrong Delk Balkenbush & Eisinger, Reno, Nev.

Allegra J. Lawrence-Hardy, Partner, Sutherland Asbill & Brennan, Atlanta, Ga.

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FOR LIVE EVENT ONLY

Brian M. Brown

Thorndal Armstrong Delk Balkenbush & Eisinger [email protected]

Introduction Litigants may discover information from a

corporation by serving a notice which requires the corporation to designate a person or persons to testify in a deposition on specifically enumerated topics.

FRCP 30(b)(6)

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“A party may . . . name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested . . . . [T]he organization so named shall designate on or more officers, directors, or managing agents or other persons who consent to testify on its behalf, and may set forth, each person designated, the matters on which the person will testify. The person so designated shall testify as to matters known are reasonably available to the organization . . . .”

6

The Comments to FRCP 30(b)(6) State Three Reasons in Support of the Rule.

• Assist parties in determining whether a particular employee of a corporation is a “managing agent.”

• Prevent “bandying.” • Limit the number of employees to be

deposed.

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Initial Issues to Evaluate • Was the notice procedurally proper? • Does the notice satisfy the rule

requirements? • Was service proper? • Is adequate time provided to respond?

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Items to Consider Designated topics Location of deposition Length of deposition Number of witnesses required to testify

based upon identified topics Privileged information. i.e., attorney-client

work product, trade secret, etc.

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Evaluating the Decision to Serve Objections Identify all potential objections Identify any topics which the employer has no

information Serving Objections Check jurisdictional rules on requirement of

serving or filing objections FRCP 32(d)(1) requires service on parties Filing objections may not result in ruling

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Procedural Defects If a defect exists is it real or technical? Cost of motion practice Goodwill with opposing counsel Is the Request Vague and Ambiguous? Are the designated topics very broad? A large number of documents is requested? Cost of gathering information Exceeds seven hours of deposition time per witness Solutions Meet and confer with opposing counsel Negotiate resolution of dispute Negotiate an amended notice Serve objections Move for protective order

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Filing a Reciprocal 30(b)(6) Notice May Not Be Applicable in an Employment Law Context

30(b)(6) is only applicable to a party

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Defending Rule 30(b)(6) Corporate

Depositions in Employment Litigation

Allegra J. Lawrence-Hardy, Esq. [email protected]

©2015 Sutherland Asbill & Brennan LLP

SELECTING THE 30(B)(6) WITNESS(ES)


Selecting the 30(b)(6) Witness(es)

• A witness with detailed knowledge of the subject

matter noticed presents advantages over a

witness with isolated knowledge.

Witness must represent the knowledge of the corporation.

Elan Microelectronics Corp. v. Pixcir Microelectronics Co.

Ltd., 2013 U.S. Dist. LEXIS 114164, 2013 WL 4101813 (D.

Nev. August 13, 2013).

Starlight Internat’l. Inc. v. Herlihy, 186 F.R.D. 626, 639 (D.

Kan. 1999).

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• Designating a lawyer, or someone else privy to

extensive privileged information, as 30(b)(6) witness

can invite trouble.

An attorney who serves as a Rule 30(b)(6) witness may not

“frustrate or impede the deposition under the banner of

privilege.” New Jersey v. Sprint Corp., 03-2071-JWL, 2010

WL 610671, at *3 (D. Kan. Feb. 19, 2010).

Local rules in some jurisdictions may preclude a lawyer from

serving as the Rule 30(b)(6) witness for ethical reasons.

See Natural Res. Def. Council, Inc. v. Cnty. of Dickson,

Tenn., 3:08-0229, 2010 WL 5300871, (M.D. Tenn. Dec. 20,

2010)(local rules required lawyer to be “necessary witness”).

16



• Carefully consider whether to identify as a 30(b)(6)

witness someone who has been or is likely to be

separately noticed for a fact deposition.

This witness may be subject to provide testimony in two

separate depositions, each subject to the 7-hour rule. Sabre

v. First Dominion Capital, LLC, 01CIV2145BSJHBP, 2001

WL 1590544, at *1 (S.D.N.Y. Dec. 12, 2001).

Deposing counsel may abuse the opportunity and

overreach.

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One designee may not be able to testify

completely where the subject matter involves

complex facts and numerous legal issues.

McCormick-Morgan, Inc. v. Teledyne Indus.,

Inc., 134 F.R.D. 275, 286 (N.D. Cal. 1991).

Multiple Rule 30(b)(6) designees count as

one deposition for ten-deposition limit. I/P

Engine, Inc. v. AOL, Inc., 283 F.R.D. 322,

324 (E.D. Va. 2012).

Each designee may be deposed for up to

seven hours. See Fed. R. Civ. Pro. 30(d)(1);

Todd v. Precision Boilers, Inc., No. 07-cv-

00112, at *1 (W.D. La. Oct. 24, 2008).

Exceptions to the seven-hour rule. In re

Rembrandt Technologies, 2009 WL

1258761, at *14 (D. Colo. May 4, 2009);

E.E.O.C. v. The Vail Corp., 2008 WL

5104811, at *3 (D. Colo. Dec. 3, 2008).

• There are benefits to limiting the number of witnesses

who will address multiple topics in response to

30(b)(6) notice.

18

Educating the witness Preparing the 30(b)(6) witness Witness cheat sheets

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A 30(b)(6) witness is testifying as to the employer’s knowledge on the identified subject areas

Witness must know the facts/policies that are the subject of the notice

Potential sanctions if witnesses produced do not have the requisite knowledge of the subject matter identified in the notice

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Similarities Between Fact Witnesses and 30(b)(6) Witnesses

Review key documents Review witness statements Differences Review policies Review applicable legal standards/regulations The Witness Must Present as Prepared and

Knowledgeable

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Cheat Sheets Keep in mind these notes are discoverable Detailed facts to refresh witness’s

recollection Assist witness with complex subject matter Assist witness with voluminous factual

information Should you ask questions of your own

witness during the deposition

22


PROBLEM AREAS


Problem Areas

• There are appropriate actions to take when the

questioner goes beyond the scope of the notice.

24


Problem Areas

• If the witness proves to be insufficiently

knowledgeable about a subject area, there are

solutions.

The company has a duty to designate

an additional designee who will be

knowledgeable about the subject

area. Kress v. Pricewaterhouse

Coopers, LLP, 2:08-CV-0965 LKK

AC, 2013 WL 2421704, at *2 (E.D.

Cal. June 3, 2013).

Producing an unprepared witness is

tantamount to a failure to appear for

the deposition. United States v.

Taylor, 166 F.R.D. 356, 363

(M.D.N.C. 1996).

If compelled by the court, sanctions

may also be awarded to the party

seeking the deposition. State Farm

Mut. Auto. Ins. Co. v. New Horizont,

Inc., 250 F.R.D. 203, 215-216 (E.D.

Pa. 2008).

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Problem Areas

• If a witness provides inaccurate or incomplete

information at the deposition, STAY CALM.

There are remedies. In some cases, a court will require an

“extraordinary explanation” before the company

will be permitted to “retreat from binding

admissions in the testimony of its Rule 30(b)(6)

designee.” Estate of Scott W. Thompson v.

Kawaski Heavy Indus., 291 F.R.D. 297, 309 (N.D.

Iowa 2013). See also, Rainey v. American Forest

& Paper Ass’n, Inc., 26 F. Supp. 2d 82, 94 (D.D.C.

1998) (must establish that information was not

known or accessible); Hyde v. Stanley Tools, 107

F. Supp. 2d 992, 993 (E.D. La. 2000) (inconsistent

affidavit may be accepted if accompanied by

reasonable explanation).

Rule 30(b)(6) tesitmony not a judicial adminission

absolutely binding on the party. State Farm Mut.

Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D.

203, 212 (E.D. Pa. 2008) (quoting 8A Charles Alan

Wright et al., Federal Practice and Procedure §

2103 (Supp. 2007)). 26

Documents

Defending Rule 30(b)(6) Corporate Depositions in Employment …media.straffordpub.com/products/defending-rule-30-b-6... · 2015. 5. 27. · Selecting the 30(b)(6) Witness(es) •