Rule 30(b)(6) at 45: Is It Still Your Friend?
By Eric Kinder and Walt Auvil – December 3, 2015
We are approaching the forty-fifth “birthday” of Federal Rule of Civil Procedure 30(b)(6). The rule was adopted in 1970 with the goal of streamlining the discovery process. Hooker v. Norfolk S. Ry. Co., 204 F.R.D. 124 (S.D. Ind. 2001). When the rule was a sprightly 28 years old, an article titled “30(b)(6) Is Your Friend” was published in the newsletter of the ABA’s Tort and Insurance Practice Section. That article began as follows:
Two of toughest tasks that any party bearing the burden of proof has is to (1) find the information necessary to carry their burden and (2) to ensure that they possess all of the information which could serve to rebut or undermine the position which they are asserting. A powerful tool to accomplish these tasks is Fed. R. Civ. P. 30(b)(6).
The rule is now coming into middle age. This article examines whether it is still accomplishing the goals it was designed to achieve.
The rule requires a corporation, partnership, association, or government agency to designate a representative to testify on its behalf with regard to matters known or reasonably available to the organization. Pursuant to Federal Rule of Civil Procedure 32(a)(2), 30(b)(6) deposition testimony can be used for any purpose at trial. Rule 30(b)(6) requires that the notice “describe with reasonable particularity the matters upon which examination is requested.” The deponent’s obligation under 30(b)(6) is to provide a witness or witnesses knowledgeable about the matters described in the notice. The party responding must prepare its 30(b)(6) witness to give complete, knowledgeable, and binding answers on the matters described in the notice. Murphy v. Kmart Corp., 255 F.R.D. 497, 507 (D.S.D. 2009); Mitsui & Co. (U.S.A.) Inc., v. Puerto Rico Water Res. Auth., 93 F.R.D. 62, 66 (D.P.R. 1981) (“Corporations, partnerships, and joint ventures have a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.”); Starlight Int’l Inc. v. Herlihy, 186 F.R.D. 626, 639 (D. Kan. 1999) (citing Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995)); accord In Re Analytical Sys., Inc., 71 B.R. 408, 412 (Bankr. N.D. Ga. 1987); Mitsui & Co. (USA), Inc., 93 F.R.D. at 66–67.
Thus, the corporation must (1) designate a person or persons who are knowledgeable on the noticed subjects and (2) prepare that person or those persons to give complete, knowledgeable, and binding answers. Commodity Futures Trading Comm’n v. Midland Rare Coin Exch., Inc., 1999 U.S. Dist. LEXIS 16939, at *12 (S.D. Fla. 1999); Alexander v. FBI, 186 F.R.D. 137, 141 (D.D.C. 1998); Bank of N.Y. v. Meridien Baio Bank Tanzania Ltd., 171 F.R.D. 135, 150 (S.D.N.Y. 1997); Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989); Mitsui & Co., 93 F.R.D. at 67.
“Reasonable Particularity”—Drafting The Notice
Responsibilities under Rule 30(b)(6) are mutual. The party drafting the 30(b)(6) notice must do so with “reasonable particularity.” Instructive in this regard is the examination of the deposition notice prepared by the plaintiff’s counsel in Murphy v. Kmart Corp., 255 F.R.D. 497 (D.S.D. 2009).The court considered the application of Rule 30(b)(6) in the context of an employment discrimination case. Plaintiff Murphy sought a 30(b)(6) deposition of Kmart. Kmart responded with a motion for a protective order. The court noted that the initial burden is on the party seeking discovery through Rule 30(b)(6) to show that the information sought is relevant to the case. Upon such a showing, the burden shifts to the party opposing the deposition to show that the information sought is not discoverable. Id. at 502. The court observed that the adoption of Rule 30(b)(6) in 1970 placed a burden that had not previously existed on organizational entities. Id. at 503–4.
Kmart objected to the specificity of the plaintiff’s 30(b)(6) deposition notice, which requested
the corporate history of Kmart corporation, Kmart Holding Corporation, Sears Corporation and Sears Holdings Corporation for the last 10 years, i.e., relationship of Kmart Corporation, Kmart Holding Corporation, Sears Corporation, and Sears Holdings Corporations and the bankruptcy in 2001.
The Murphy court held that this designation was too broad in that it requested a “tremendous amount of information that may be completely irrelevant.” Therefore, the court required the plaintiff to amend the notice to narrow or clarify the inquiry. However, the court rejected Kmart’s argument that the plaintiff’s general approach of using 30(b)(6) to seek the corporate history was impermissible. Id. at 506. The court noted that “producing documents and responding to written discovery is not a substitute for providing a thoroughly educated Rule 30(b)(6) deponent.” Id. at 507 (citing Great Am. Ins. Co. of N.Y. v. Vegas Constr. Co., 251 F.R.D. 534, 541 (D. Nev. 2008)).
The Murphy court also considered the plaintiff’s designation pursuant to Rule 30(b)(6) seeking “business plans that Defendant (all corporations listed in one, above), developed from 2001 to 2005, regarding retention or termination of salaried employees.” The court held that the five-year time period set forth in the designation was reasonable, but the court placed some limits on the plaintiff’s examination of Kmart as to entities other than Kmart. Id. at 509–10
In a similar vein, in Founding Church of Scientology, Inc. v. Director, Federal Bureau of Investigation, 1979 U.S. Dist. LEXIS 12757 (D.D.C. 1979), the court considered the degree of specificity required in a notice of 30(b)(6) deposition. The court held that there is no “absolute requirement that a notice of deposition have specificity”; rather, the rule requires “reasonable particularity.” The court noted that “the purpose of these depositions is simple: the Plaintiff must inform the Defendant of the facts upon which it relied in bringing this suit.” 1979 U.S. Dist. LEXIS 12757, at *4. Similarly, in Bracco Diagnostics Inc. v. Amersham Health Inc., 2005 WL 6714281 (D.N.J. Nov. 7, 2005), the court noted that the scope of discovery under Rule 30(b)(6) is coextensive with the scope of discovery available under Rule 26(b)(1). Id. at *2. The court further noted that “no special protection is conferred in a deponent by virtue of the fact that the deposition was noticed under 30(b)(6).” Id. The party resisting the 30(b)(6) deposition argued that a deposition notice seeking the facts on which allegations in the case were based was not proper under Rule 30(b)(6). The court rejected this argument and noted that “it is unclear how seeking the factual basis for contentions is not relevant under Fed. R. Civ. P. 30(b)(6).” Id. at *3.
Still, the notice must actually provide the intended content of the deposition. Notices that state that the matters specified are “not exclusive,” Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000), and notices that list categories of inquiry qualified by the phrase “including but not limited to,” Tri-State Hospital Supply Corp. v. United States, 226 F.R.D. 118, 125 (D.D.C. 2005), are overbroad. As the court in Tri-State Hospital said, “[l]isting several categories and stating that the inquiry may extend beyond the enumerated topics defeats the purpose of having any topics at all.” Id. The proper response, if the party seeking the deposition will not amend the notice, is to seek a protective order.
Rule 30(b)(6) Reaches Non-Parties
The reach of Rule 30(b)(6) is not limited to parties. A 30(b)(6) notice may be directed to any entity that possesses relevant information, whether a party to the case or not. An interesting question addressed in Murphy is whether information in the possession of nonparty entities may be sought through a 30(b)(6) deposition of a party.
Upon consideration of the issue of the plaintiff’s 30(b)(6) designations directed at information in the possession of corporate entities other than the corporate defendant, the Murphy court noted a split of authority regarding 30(b)(6) designations directed at information in the possession of related corporate entities and corporate parents that are not parties to the case in which the notice is issued. After reviewing these authorities, the court ruled that Kmart Corp. (the defendant party in the action) has sufficient control over or access to the other corporate entities from which the plaintiff sought information to allow inquiry about them through a 30(b)(6) notice directed to defendant Kmart. 255 F.R.D. at 508–9. In this regard, the court noted that the boards of directors of the corporate entities were identical. Id. at 509.
There are advantages to proceeding by a 30(b)(6) deposition, as compared with interrogatories or individual depositions, in some cases. Courts have echoed the advisory committee’s note to Rule 30(b)(6) in rejecting efforts to resist 30(b)(6) depositions: “One of the primary purposes of Rule 30(b)(6) is to curb bandying by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of the facts that are clearly known to the organization and thereby to it.” Sigmund v. Starwood Urban Retail VI, LLC, 236 F.R.D. 43 (D.D.C. 2006) (internal quotations omitted). Unlike interrogatory responses, a 30(b)(6) designee is subject to follow-up questioning. While responses to interrogatories are often vague and nonresponsive, evasion in a deposition may be dealt with at the time by examining counsel. For trial purposes, it is comparatively easy to call the 30(b)(6) designee as a witness and inquire as to testimony in the deposition offered on behalf of the corporation or other entity. While interrogatory responses may be admitted at trial in certain circumstances, these often do not have the same impact as a live witness who has been designated by a corporation to speak on its behalf. Courts have recognized that 30(b)(6) is often a more effective means of obtaining discovery than interrogatories. Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989).
One potential use of the 30(b)(6) deposition that was certainly not contemplated when the rule was originally enacted is its use as a device to assist a party in understanding the storage of a corporation’s electronically stored information. The question has been, when should the 30(b)(6) deposition take place? Electronic storage of information is a business-by-business question because companies choose their own software and hardware and implement their own storage protocols. Accordingly, several commentators have indicated that an early 30(b)(6) deposition may be necessary because “you can’t secure it, if you can’t find it.” Electronic Resources Public Consortium, Identification Guide (Nov. 3, 2010).
An essential component to a successful electronic discovery project is an accurate picture of the target company’s data sources. It is important to keep in mind that all company information technology infrastructures are not created equal. The hardware and software deployed to accomplish commonplace tasks such as managing company e-mail or creating data backups, varies widely from organization to organization. Indeed, it likely varies within the target company if the timeframe in question is broad enough, or if the company is widely distributed in various geographic locations.
Id.; see also Manual for Complex Litigation (Fourth) § 11.446 (2004) (“Any discovery plan must address issues relating to such information, including the search for it and its location, retrieval, form of production, inspection, preservation, and use at trial.”).
But at least one court has considered an effort to compel an early Rule 30(b)(6) deposition “regarding the manner and methods used by defendant to store and maintain electronically stored information” to be inappropriate. The District of Arizona determined, in Miller v. York Risk Services Group, No. 2:13-cv-1419, 2014 WL 1456349 (D. Ariz. Apr. 15, 2014), that compelling a 30(b)(6) deposition solely to allow a party to draft its discovery “puts the cart before the horse.” The court explained:
Instead of beginning with a deposition that address nothing but process, discovery should start with inquiries that seek substantive information. If Defendant then asserts that retrieving relevant information stored electronically would be unduly burdensome, it might then be appropriate to proceed with a Rule 30(b)(6) deposition of the type Plaintiffs seek.
Id. at *2.
Of course, this ruling would not prevent the parties from agreeing to a 30(b)(6) deposition if both parties thought it would be beneficial, but the emerging rule appears to be that such a deposition will not be compelled absent an issue developing in the case.
See, e.g., Starbucks Corp. v. ADT Sec. Servs., Inc., No. 08-cv-900-JCC, 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009) (claims of undue burden); Zurn Pex Plumbing Prods. Liab. Litig., MDL No. 08-1859 ADM/RLE, 2008 WL 5104173 (D. Minn. Nov. 26, 2008) (potential destruction of emails due to failure to issue preservation notice); Wells v. Xpedx, No. 8:05-CV-2193-T-EAJ, 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007) (mechanism of email deletion policy).
Are the Responses Binding?
There is a split of authority as to whether testimony in a 30(b)(6) deposition is a binding admission that the testifying entity is not permitted to contradict at trial, as opposed to merely an admission that the party may contradict at trial. The majority view is that the testimony is binding and may not be contradicted at trial by the party offering it.
In a recent case, a district court considered the proposed 30(b)(6) deposition of corporate defendant Kawasaki. Estate of Thompson v. Kawasaki Heavy Indus., 291 F.R.D. 297 (N.D. Iowa 2013). The Thompson court recognized a split among the federal circuit courts of appeals as to whether testimony given by a corporate representative in a 30(b)(6) deposition is binding on the corporate entity or whether it may contradicted by the entity at trial. The Thompson court compared the Fifth Circuit’s holding in Brazos River Authority v. GE Ionics Inc., 469 F.3d 416, 433 (5th Cir. 2006), with the Seventh Circuit’s holding in A.I. Creditcorp v. Legions Co., 265 F.3d 630, 637 (7th Cir. 2001). The Fifth Circuit held that 30(b)(6) testimony was binding and could not be contradicted at trial, whereas the Seventh Circuit held that 30(b)(6) testimony was to be treated as any other deposition testimony. The Thompson court held that statements in the 30(b)(6) deposition were binding on the corporation, as this was the most consistent with the purpose of the rule, which was to “permit the examining party to discover the corporation’s position via a witness designated by the corporation to testify on its behalf.” Thompson, 291 F.R.D. at 303 (citations omitted). While the court did allow for the possibility of “some extraordinary explanation” that would allow a corporation “to retreat from [the deponent’s] binding admissions,” it offered no examples of what would meet that standard. Id. at 304. While Thompson acknowledges the circuit split, corporate counsel are well advised to prepare for a 30(b)(6) deposition as if the testimony were judicial admissions against the company.
Claims and Defenses Are Proper Subjects for 30(b)(6) Designations
A valuable use of 30(b)(6) designations is to seek information that supports claims or defenses raised in the pleadings. Courts have generally upheld designations directed at the information possessed by parties that supports a claim or defense raised by that party. In EEOC v. Albertson’s, LLC, No. 06-cv-01273-WYD-BNB, 2007 WL 1299194, at *1 (D. Colo. May 1, 2007), the U.S. District Court for the District of Colorado dealt with a request for a protective order by the Equal Employment Opportunity Commission (EEOC) stemming from the 30(b)(6) deposition notice filed by the defendant Albertson’s. The EEOC relied on the attorney work product doctrine and the deliberative privilege doctrine to resist broad 30(b)(6) designations, including the following:
19. Factual information which supports the relief sought by the EEOC in this action, including but not limited to punitive and injunctive relief.
20. Factual information that supports or rebuts the claim of any potential claimant in this action.
The district court denied the EEOC’s motion for a protective order regarding these broad designations. Id. at *2. The court also rejected the EEOC’s objection to 30(b)(6) designations regarding communications between the agency and potential claimants. Id. The court did observe that the EEOC could assert attorney-client privilege on a question-by-question basis when its designee was questioned about these contacts “if such an objection is warranted.” Id. at *6. Similarly, 30(b)(6) questions that “merely sought routine factual support for the allegations underlying the complaint” have been upheld as proper. Travelers Indem. Co. v. Hans Lingl Anlagenbau Und Verfahrenstechnik GMBH & Co. KG, 189 F. App’x 782, 783–85 (10th Cir. 2006). Indeed, designations seeking to determine a corporation’s interpretation of the application of law to facts is within the scope of proper inquiry under Rule 30(b)(6). In Sigmund v. Starwood Urban Retail VI, LLC, 236 F.R.D. 43 (D.D.C. 2006), the court considered a motion to compel a 30(b)(6) corporate designee to respond to questions. The district court rejected the defendant’s argument that “legal opinions are more appropriately sought through contention interrogatories” as contrasted with 30(b)(6) testimony. The court noted that the advisory committee intended for Rule 30(b)(6) to address mixed questions of law and fact, such as the basis for interpretation of a provision of a contract. Id. at 45. The Sigmund court reviewed and summarized decisions evaluating the request to require an inquiring party to use contention interrogatories as opposed to proceeding by Rule 30(b)(6) and concluded that, while there should be a case-by-case determination of such requests, 30(b)(6) inquiries are not objectionable solely because the designation would require testimony about a corporation’s opinion or the application of law to facts.
In High Five Investments, LLC v. Floyd County, Ga., 239 F.R.D. 663 (N.D. Ga. 2007), the court considered the defendant county’s motion for a protective order seeking to prevent a 30(b)(6) deposition. The 30(b)(6) notice contained the following designation:
Such designated agent(s) will be prepared to testify with regard to the ordinance’s enactment process, each and every governmental interest meant to be furthered by the provisions of Floyd County Ordinance 2006-002A, how such interests are furthered by the regulations, and the origin, timing, and authenticity of all materials the County relied upon for enactment of said ordinance.
Id. at 665.
The county objected to this 30(b)(6) designation on numerous grounds. The court concluded that the information sought was relevant to the claims at issue and denied the defendant’s motion for protective order.
In Doe v. District of Columbia, 230 F.R.D. 47 (D.D.C. 2005), the court considered a case brought on behalf of a child who alleged physical and sexual assault while in the care of the District of Columbia. The plaintiff sought a 30(b)(6) deposition of the District of Columbia. The defendant responded with a motion for a protective order, arguing that information sought by the plaintiff was protected from disclosure on the basis of the deliberative process privilege, attorney-client privilege, and work-product privilege.A designation of the 30(b)(6) deposition provided as follows:
Deposition Topic Number 2 seeks testimony regarding all federal, state, and local laws, regulations, and rules applicable to the District, relating to: (a) the District’s placement, monitoring, and care of children in foster environments, including group homes; (b) the operation and monitoring of Columbia House II and any other youth residential facilities; (c) the District’s Employment Practices and Policies; (d) the District’s Training Practices and Policies; (e) the District’s monitoring, reporting, and methods of addressing instances of possible sexual abuse, physical abuse, emotional abuse, and/or neglect of children in its custody or placed in the custody of others by CFSA; and (f) the allegations of the First Amended Complaint, and the representations the District has made in its various submissions in this matter.
Defendant’s Motion for Protective Order, Exhibit A at 2–3, Doe, 230 F.R.D. at 52.
At page 52 of the opinion, the court concluded that
defendant’s designee need not provide information protected by the attorney-client privilege, provided that defendant establishes that all of the privilege’s elements have been met. However, defendant’s designee must identify those laws, regulations, and rules that, in that designee’s understanding, regularly inform defendant’s foster care work.
In Briddell v. St. Gobain Abrasives Inc., 233 F.R.D. 57 (D. Mass. 2005), the district court considered an employer’s objection to the scope of a Rule 30(b)(6) deposition notice in an employment discrimination case. The notice sought information regarding the defendant’s employment practices:
Defendant’s investigations and purported good faith efforts to address workplace discrimination, retaliation and/or disparate treatment, through its purportedly comprehensive, effective and well-publicized policies, including any action taken by the Defendant to ensure that these policies were actually followed with respect to promotions and with respect to discipline at the Worcester Facility between January 1999 and the date of Plaintiff’s termination [February 6, 2002].
Id. at 58.
The court rejected arguments by the employer that the information sought by this 30(b)(6) designation was overly broad either geographically or temporally. The court found the scope of the designation “entirely reasonable.” Id. at 59.
In comparison, in Fidelity Management & Research Co. v. Actuate Corp., 275 F.R.D. 63 (D. Mass. 2011), the court considered the plaintiff’s 30(b)(6) notice, through which it sought to discover the facts on which the defendant’s affirmative defenses were based. The court considered the issue of work product in the context of 30(b)(6) discovery directed at a defendant’s claims for damages and affirmative defenses. The court converted the plaintiff’s 30(b)(6) deposition notice into a deposition on written questions on its own motion. Id. at 64.
Restricted to the Scope of the Notice or Not?
There is a split of authority as to whether a party using Rule 30(b)(6) is required to adhere to the limits of the designations in the notice or whether they may inquire as to any subject permissible under Federal Rule of Civil Procedure 26 (b)(1). Some courts have held that inquiry should be limited to the matters stated with reasonable particularity as designations in the 30(b)(6) notice. Paparelli v. Prudential Ins. Co., 108 F.R.D. 727 (D. Mass. 1985). The majority view, however, is that there is no such limitation. Bracco Diagnostics Inc. v. Amersham Health Inc., No. 03-6025 (SRC), 2005 WL 6714281 (D.N.J. Nov. 7, 2005); Cabot Corp. v. Yamulla Enters., 194 F.R.D. 499 (M.D. Pa. 2000); Detoy v. City & Cnty. of S.F., 196 F.R.D. 362 (N.D. Cal. 2000). This view holds that testimony is not limited to the subject matter in the notice because limiting the scope of the deposition to what is noticed would frustrate the objectives of Rule 26(b)(1). The scope of the deposition is determined solely by relevance under Rule 26. Detoy, 196 F.R.D. at 366.
One issue that always concerns defense attorneys is what to do when a 30(b)(6) deponent is asked a question that is outside the scope of the notice. While defense counsel have a number of options, courts have been clear that merely instructing the witness not to answer is not one of those options. Even where the court held that a 30(b)(6) deposition should be limited to the topics set forth in the notice, defense counsel must seek a protective order rather than simply instructing the witness not to answer the question. Paparelli, 108 F.R.D. at 731. The more commonly accepted approach was detailed in Detoy, in which the court instructed counsel to note on the record that the deponent’s answers to such questions were beyond the scope of the notice, were not intended as answers of the designating corporation, and did not bind the designating corporation; prior to trial, counsel could request jury instructions that such answers were merely answers or opinions of the individual fact witness, and not admissions of party. Detoy, 196 F.R.D. at 367; see also EEOC v. Caesar’s Entm’t, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) (stating counsel should note that answers to questions beyond the scope of the 30(b)(6) are merely the opinions of the individual fact witness).
Courts have concluded that questions and answers exceeding the scope of the 30(b)(6) notice do not bind the corporation and are merely treated as the answers of the individual deponent. Id.; King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995) (“[I]f the deponent does not know the answer to questions outside the scope of the matters described in the notice, then that is the examining party’s problem.”). Where a 30(b)(6) deposition routinely strays from the confines of the notice, defense counsel should ask the court to exercise its discretion to count the deposition as both an authority 30(b)(6) deposition and an individual deposition for purposes of the applicable limitation on the number of depositions.
Forty-five years after its adoption, Rule 30(b)(6) continues to perform the role envisioned by the advisory committee in 1970. The rule remains a valuable aid in focusing discovery efforts more efficiently than would be possible in its absence. Rule 30(b)(6) remains particularly valuable in efficiently and economically defining the evidence possessed by corporate and other entities.
Keywords: litigation, pretrial practice, Rule 30(b)(6), discovery, protective order