Preparing a Client for a 30(B)(6) Deposition in the Future

As the attorneys who will be preparing the witnesses of the future, becoming familiar with the do’s and dont’s of corporate designee depositions is essential.  This paper will provide some helpful guidance for Future Leaders to prepare and defend their future corporate witnesses.

Choosing the Right Witness

You have now received a Rule 30(b)(6) deposition notice seeking testimony from a corporate designee for your client in an ongoing lawsuit.  The next decision that needs to be made: who should be designated on behalf of your client to testify?  Rule 30(b)(6) of the Federal Rules of Civil Procedure provides:

Notice or Subpoena directed to an organization.  In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

(emphasis added).  An important thing to note is that the text of Rule 30(b)(6) does not require the designee witness to be the “most knowledgeable” witness on the topic(s) contained in the notice.  This is a frequent misconception of the rule that you may hear from opposing counsel, your colleagues in your legal department, or a partner in your firm.  However, the plain language of the rule requires only that the witness testify about “information known or reasonably available to the organization,” not the individual witness. Fed. R. Civ. P. 30(b)(6) (emphasis added).  This means that the witness must be prepared with information in the organization’s collective knowledge.  Tips for preparing your witness to this level are below.  As long as the witness has a firm grasp of information known or reasonably available to the organization, the standard set by Rule 30(b)(6) is met.

With this in mind, outside counsel and in-house counsel should work together in the days following service of the deposition notice to identify the most appropriate person(s) to name as corporate designee.  Here are some questions to ask:

• Has this person testified in this capacity before?
• How well can this person learn and retain information?
• What is the universe of information this person will be expected to know?
• How well does this person listen to questions and instructions?
• How likely is it that your witness will “go rogue”?

From in-house counsel’s perspective, the big picture from the company’s perspective is top of mind: how may this deposition impact the company in the future in a positive or negative way?  As in-house counsel, you should be thinking of these themes and relaying them to outside counsel.  As outside counsel, you should ask your client what these themes are and if there is anything they want to come out of the deposition.

While evaluating options, consider that a witness with aptitude for remembering facts and presenting well can be prepared or trained to testify on behalf of the company.  Again, in the Rule 30(b)(6) context, the witness is testifying about information known or reasonably available to the organization.  There is nothing in the rule that prohibits educating a charismatic critical thinker to meet this obligation, as opposed to a person with “the most knowledge” of the topics.

Presenting Multiple Witnesses

When preparing to present testimony on behalf of the corporate client, the inclination is often to settle on a single witness who has sufficient knowledge of the stated topics of inquiry to satisfy the standards of Rule 30(b)(6).  However, sometimes, it may be prudent to  present more than one witness who each testify on different topics.

Where particularly specialized knowledge may be critical to a case, one strategy is to present multiple witnesses, each with specific expertise on the varying topics.  That way, the company gets the benefit of the broader range of knowledge possessed by multiple witnesses.

There are risks to this approach as well.  For example, in many jurisdictions there are time limits on the length of depositions.  One could argue that presenting multiple witnesses in response to a single deposition notice (even a Rule 30(b)(6) notice containing multiple topics) effectively lengthens the time limit of the deposition.  If you plan to present multiple witnesses, it may be worthwhile to address that argument ahead of time through motion practice, and avoid potential marathon questioning.

Similarly, it can frequently prove difficult to limit a witness’s testimony strictly to the topic(s) for which they are presented to the exclusion of the other topics contained in the notice.  In those circumstances, skillful questioning counsel will find ways to elicit testimony from the witness that bears on topics for which he or she has not been designated by the company.  Once the answer is recorded, the chances of distancing the company from that testimony are slim since the company designated the witness to offer testimony on its behalf. Vigilance is required on the part of outside counsel to prevent “question creep.” Preparing the witness to understand the limits of his or her estimony topics is also important.

Preparing the Witness

Preparing a corporate designee witness is in some respects similar to preparing a fact winess. However, there are several additional considerations to keep in mind when preparing company witnesses to testify.  Here are some tips for preparing the witness:

Meet in advance.

For several reasons, you do not want the first time you sit down to prepare to be the morning of the deposition. It can be intimidating enough for a witness to walk into a fancy law office to face questioning from a skilled attorney, in many instances for the first time. Couple that apprehension with having the witness show up at 10:00 a.m. with plans to prep and start the deposition at 11:00 a.m., and you have a recipe for disaster.  It is unrealistic to think that such a witness will digest the key issues in the case on top of your instructions in such a short time frame.  Meeting in advance is crucial!  Confer between outside counsel and in-house counsel to determine whether the witness will need multiple sessions of preparation. Take the time to meet the witness days (or weeks if necessary) in advance to begin preparations.  Meet the witness at a location familiar to him or her – on the company premises, in the witness’s office or at a mutually chosen location to help lessen anxiety.  There is no substitute for meeting the witness in advance on his or her turf to help put the witness at ease.

Go over the basics.

Especially as we collectively emerge from isolation due to COVID-19, it may have been some time since your witness’s last deposition.  Ensure they remember the basics of testifying and appearing at a deposition.  Do they know how to get there?  Do they know the scope of acceptable answers to questions?  What should they bring?  What should they wear?  Go over travel arrangements and ensure they have booked a flight the day after the deposition, not the night of.  If the deposition is via Zoom or othe videoconferencing technology, go over what to expect in terms of presentation of exhibits and questioning, or even have a mock deposition during one of your prep sessions.

Share your impressions of opposing counsel.

This goes a long way to making your witness comfortable. Do you have a rapport with opposing counsel?  What is your sense of their questioning style?  Where are they from, and is it somewhere different from where the witness is from? What issues can this cause? Especially as a younger attorney, be prepared for opposing counsel to say things to intimidate either the attorney or the witness, or both.

Prepare talking points and a theme.

More likely than not, the case is in litigation because there is a genuine dispute and reasonable minds can differ over the issues.  Counsel should frankly warn corporate witnesses that they will likely face difficult questions.  Smart lawyers can craft questions in the moment that take even the best lawyers by surprise and foil even the most specific preparation methods.  In challenging cases, always prepare a set of talking points that adhere to the theme of your client’s position in the case. When the witness faces a difficult question (hopefully an anticipated one, but even if not), the witness can pull an arrow from the quiver of talking points to fashion an answer that incorporates the company’s best arguments or defenses.

Homework is required.

Explain to your witness that the deposition does not begin and end with their knowledge and experience.  This is different from most other depositions the witness is likely to have completed. The witness should be studying and living the matter for the days preceding the deposition, almost memorizing the pertinent information.  They cannot rely on the phrase “I don’t know” as readily as in an individual deposition.  Try to avoid having the witness look up things in his or her file because this opens that up to discovery.  Deflect the “who do you report to” questions because the witness is supposed to be the representative of the entire organization.

Short answers are better.

How many times have you suffered through the painful experience of having opposing counsel ask your witness how long he or she has been with the company, and thirty minutes later (after abandoning nearly every caution you provided during preparation) your client’s soliloquy finally ends?  Caution your company witnesses that opposing counsel is here to get information about the case, but they want to use that information against the company.  Accordingly, it is better for your case that we do not volunteer information unnecessarily.  Advise the witness to listen to the question and answer what is asked.  If counsel wants more information, he or she can ask another question.  Also condition the witness that shorter answers will likely shorten the deposition – that is an attractive notion for most witnesses.

Don’t swing for the fences.

Some witnesses self-impose a burden that they must perform perfectly, or the case will be lost.  Try to alert witnesses that we have done our due diligence in our preparation, but no matter how this deposition turns out the case will continue.  Perhaps some corporate deposition somewhere has ended with an apology by opposing counsel followed by a prompt dismissal but this is highly unlikely.  Help your witness acclimate to the idea that this is not likely to be one of those cases.  The witness should not be made to feel like he or she has to hit a home run.  It is far more beneficial to concentrate on not making any slip-ups that could damage the case. Impress upon the witness the importance of sticking to the preparation pointers.

Prepare for the Reptilian method of questioning.

The so-called Reptilian method of lawyering involves outside counsel trying to trigger a negative visceral reaction in the witness, whether it be anger, frustration, shame, doubt.  An example is when the attorney asks what college the witness went to and then saying “never heard of it.”  These are just techniques and the attorney doesn’t actually care about the witness’s answers.  It simply plays to the witness’s ego.  A not-insignificant amount of your preparation time should be devoted to anticipating these questions, and being cognizant of and controlling your emotions when opposing counsel employs this method.

Experienced witness vs. inexperienced witness or client.

How should the attorney differ his or her approach when preparing an experienced witness, as opposed to a witness that has not been a corporate designee before, or a client that has never been through the process before?  In-house counsel should be able to provide insight on the witness’s and the company’s comfort level with this kind of deposition.

Mechanics of the deposition.

Part of the preparation should include familiarizing (or reminding) the witness with the structure and the mechanics of the deposition, particularly with respect to objections and the availability of breaks. Help the witness understand when the company’s attorneys are/aren’t allowed to speak.  Some witnesses think that if they are having trouble answering a question, the attorney will simply object or ask a question to trigger their memory. This can lead to further frustration in the witness when the expected objection or question does not come. If the witness has not been prepared well, the feedback in house counsel is likely to receive is “our attorney was awful.” Helping the witness understand when objections will be made and for what purpose, what can be clarified/corrected after the fact, when outside counsel will ask questions or won’t, and similar considerations will go a long way to heading off these feelings of frustration, and will make the overall experience smoother.  You should also try to develop a rapport with the witness in your prep sessions and learn their mannerisms, so you know in the deposition if they are getting nervous or frustrated or need a break.

Additional tips for in-house counsel.

In-house counsel should also consider who can and should be in the preparation session:  Outside counsel only?  Outside counsel and in-house counsel? Third parties such as experts? Paralegals? Managers? Supervisors?  HR? Interpreters?  While many of these individuals may have helpful information for the witness, consider whether any of these individuals may be able to communicate their knowledge in writing or in some other fashion.

At the Deposition

Keep the testimony within the scope of the notice.

Just like the witness has homework before the deposition, so does outside counsel.  Memorize the topics and any limitations on those topics brought about by motion practice.  Similarly, be prepared for opposing counsel to go outside the scope and/or try to get the witness to say “I don’t know.”  Frequently, questioning counsel bristle when given a negative answer to the question “Well, are you the most knowledgeable person in the company on this topic?”  In those situations, be prepared to argue that nothing in Rule 30(b)(6) requires that the witness presented must meet that standard.

Assess your witness’s demeanor.

Is your witness nervous?  Be prepared with techniques to calm nerves when the witness arrives as well as during the deposition itself.  You should have familiarized yourself with your witness enough to gauge when he or she has lost the thread or needs a break.  Plan out when to encourage the questioner and your witness to take a break based on the deponent’s age, experience testifying, and even based on the time of day and any time zone considerations.

Guide your witness within applicable bounds.

No matter how many times counsel reminds a witness that there is not much the attorney can do to dictate the course of questioning or otherwise protect the witness, the witness will invariably still look to the attorney for help when he or she gets stuck.  To the extent there are ambiguities in any questions, object and try to get opposing counsel to frame the question in a clearer way. Take breaks judiciously.

What to do when you realize the witness is not prepared enough.

If your witness starts losing the thread of the questioning, saying “I don’t know” an inordinate number of times, or giving answers that were never discussed in your prep session, it may be a sign that a portion of the preparation was not retained.  Have the confidence and the presence of mind to call a time-out.  Allow the witness time to catch their breath.  Try to get them to recall some of the information you went over in your preparation sessions so they can get back on track.  This is better than coming in at the end to ask leading questions to rehabilitate the testimony.  If necessary, you may be able to ask those leading questions at the end, so take note of where the testimony was particularly lacking.

Prepare for differences between Zoom and in-person depositions.

Some of the items above, such as examining your witness to determine if they need a break, will be harder to accomplish in a fully remote deposition where you are separated from the witness. You must remind your witness that there is no way he or she can communicate with you other than in front of everyone on the Zoom call.  Come up with a plan for phone calls during the breaks, if needed; and remind the witness that he or she needs to speak up if there are any technology issues or a break is needed.  Finally and most importantly, remind your witness to turn off their microphone and camera during breaks!

Conclusion

There is no substitute for a well-prepared witness.  Preparation is key to eliminate any potential suprises at your client’s deposition, especially where the witness is testifying on behalf of the entire organization.  Hopefully, these practice pointers will help you avoid asking, “Did she really say that?”

Appendix

The Honorable Jonathan Goodman’s Thirty-Nine (39) Commandments

for Rule 30(b)(6) Depositions

The below excerpt was taken from the Honorable Jonathan Goodman’s January 30, 2012 Order  granting in part and denying in part defendant’s motion for sanctions in the Southern District of Florida for failure to comply with Rule 30(b)(6):

1. If the case law outlining the guiding principles of 30(b)(6) depositions could be summarized into a de facto Bible governing corporate depositions, then the litigation commandments and fundamental passages about pre-trial discovery would likely contain the following advice:
2. The rule’s purpose is to streamline the discovery process. In particular, the rule serves a unique function in allowing a specialized form of deposition.
3. The rule gives the corporation being deposed more control by allowing it to designate and prepare a witness to testify on the corporation’s behalf.
4. It is a discovery device designed to avoid the bandying by corporations where individual officers or employees disclaim knowledge of facts clearly known to the corporation.
5. Therefore, one purpose is to curb any temptation by the corporation to shunt a discovering party from “pillar to post” by presenting deponents who each disclaim knowledge of facts known to someone in the corporation.
6. Rule 30(b)(6) imposes burdens on both the discovering party and the designating party. The party seeking discovery must describe the matters with reasonable particularity and the responding corporation or entity must produce one or more witnesses who can testify about the corporation’s knowledge of the noticed topics.
7. The testimony of a Rule 30(b)(6) witness represents the collective knowledge of the corporation, not of the specific individual deponents. A Rule 30(b)(6) designee presents the corporation’s position on the listed topics. The corporation appears vicariously through its designees.
8. A corporation has an affirmative duty to provide a witness who is able to provide binding answers on behalf of the corporation.
9. Thus, a Rule 30(b)(6) witness need not have personal knowledge of the designated subject matter.
10. The designating party has a duty to designate more than one deponent if necessary to respond to questions on all relevant areas of inquiry listed in the notice or subpoena.
11. The rule does not expressly or implicitly require the corporation or entity to produce the “person most knowledgeable” for the corporate deposition. Nevertheless, many lawyers issue notices and subpoenas which purport to require the producing party to provide “the most knowledgeable” witness. Not only does the rule not provide for this type of discovery demand, but the request is also fundamentally inconsistent with the purpose and dynamics of the rule. As noted, the witness/designee need not have any personal knowledge, so the “most knowledgeable” designation is illogical. Moreover, a corporation may have good grounds not to produce the “most knowledgeable” witness for a 30(b)(6) deposition. For example, that witness might be comparatively inarticulate, he might have a criminal conviction, she might be out of town for an extended trip, he might not be photogenic (for a videotaped deposition), she might prefer to avoid the entire process or the corporation might want to save the witness for trial. From a practical perspective, it might be difficult to determine which witness is the “most” knowledgeable on any given topic. And permitting a requesting party to insist on the production of the most knowledgeable witness could lead to time-wasting disputes over the comparative level of the witness’ knowledge. For example, if the rule authorized a demand for the most knowledgeable witness, then the requesting party could presumably obtain sanctions if the witness produced had the second most amount of knowledge. This result is impractical, inefficient and problematic, but it would be required by a procedure authorizing a demand for the “most” knowledgeable witness. But the rule says no such thing.
12. Although the rule is not designed to be a memory contest, the corporation has a duty to make a good faith, conscientious effort to designate appropriate persons and to prepare them to testify fully and non-evasively about the subjects.
13. The duty to prepare a Rule 30(b)(6) witness goes beyond matters personally known to the designee or to matters in which the designated witness was personally involved.
14. The duty extends to matters reasonably known to the responding party.
15. The mere fact that an organization no longer employs a person with knowledge on the specified topics does not relieve the organization of the duty to prepare and produce an appropriate designee.
16. Faced with such a scenario, a corporation with no current knowledgeable employees must prepare its designees by having them review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees’ files and, if necessary, interviews of former employees or others with knowledge.
17. In other words, a corporation is expected to create an appropriate witness or witnesses from information reasonably available to it if necessary.
18. As a corollary to the corporation’s duty to designate and prepare a witness, it must perform a reasonable inquiry for information that is reasonably available to it.
19. A corporate designee must provide responsive answers even if the information was transmitted through the corporation’s lawyers.
20. In responding to a Rule 30(b)(6) notice or subpoena, a corporation may not take the position that its documents state the company’s position and that a corporate deposition is therefore unnecessary.
21. Similarly, a corporation cannot point to interrogatory answers in lieu of producing a live, in-person corporate representative designee.
22. Preparing a Rule 30(b)(6) designee may be an onerous and burdensome task, but this consequence is merely an obligation that flows from the privilege of using the corporate form to do business.
23. Not only must the designee testify about facts within the corporation’s collective knowledge, including the results of an investigation initiated for the purpose of complying with the 30(b)(6) notice, but the designee must also testify about the corporation’s position, beliefs and opinions.
24. The rule implicitly requires the corporation to review all matters known or reasonable available to it in preparation for a Rule 30(b)(6) deposition.
25. If a corporation genuinely cannot provide an appropriate designee because it does not have the information, cannot reasonably obtain it from other sources and still lacks sufficient knowledge after reviewing all available information, then its obligations under the Rule cease.
26. If it becomes apparent during the deposition that the designee is unable to adequately respond to relevant questions on listed subjects, then the responding corporation has a duty to timely designate additional, supplemental witnesses as substitute deponents.
27. The rule provides for a variety of sanctions for a party’s failure to comply with its Rule 30(b)(6) obligations, ranging from the imposition of costs to preclusion of testimony and even entry of default.
28. The failure to properly designate a Rule 30(b)(6) witness can be deemed a nonappearance justifying the imposition of sanctions.
29. When a corporation’s designee legitimately lacks the ability to answer relevant questions on listed topics and the corporation cannot better prepare that witness or obtain an adequate substitute, then the “we-don’t-know” response can be binding on the corporation and prohibit it from offering evidence at trial on those points. Phrased differently, the lack of knowledge answer is itself an answer which will bind the corporation at trial.
30. Similarly, a corporation which provides a 30(b)(6) designee who testifies that the corporation does not know the answers to the questions “will not be allowed effectively to change its answer by introducing evidence at trial.”
31. The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush.
32. If the corporation pleads lack of memory after diligently conducting a good faith effort to obtain information reasonably available to it, then it still must present an opinion as to why the corporation believes the facts should be construed a certain way if it wishes to assert a position on that topic at trial.
33. There is nothing in the rule which prohibits a corporation from adopting the testimony or position of another witness in the case, though that would still require a corporate designee to formally provide testimony that the corporation’s position is that of another witness.
34. The rule does not expressly require the designee to personally review all information available to the corporation. So long as the designee is prepared to provide binding answers under oath, then the corporation may prepare the designee in whatever way it deems appropriate – as long as someone acting for the corporation reviews the available documents and information.
35. Rule 30(b)(6) means what it says. Corporations must act responsibly. They are not permitted to simply declare themselves to be mere document-gatherers. They must produce live witnesses who have been prepared to provide testimony to bind the entity and to explain the corporation’s position.
36. Despite the potentially difficult burdens which sometimes are generated by Rule 30(b)(6) depositions, the corporation is not without some protection, as it may timely seek a protective order or other relief.
37. Absolute perfection is not required of a 30(b)(6) witness. The mere fact that a designee could not answer every question on a certain topic does not necessarily mean that the corporation failed to comply with its obligation.
38. A corporation cannot be faulted for not interviewing individuals who refuse to speak with it.
39. There are certain cases, such as subrogation cases or those involving dated facts, where a corporation will not be able to locate an appropriate 30(b)(6) witness. In those types of scenarios, the parties “should anticipate the unavailability of certain information” and “should expect that the inescapable and unstoppable forces of time have erased items from . . . memory which neither party can retrieve.”
40. A corporation which expects its designee to be unprepared to testify on any relevant, listed topic at the corporate representative deposition should advise the requesting party of the designee’s limitations before the deposition begins.