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Preparing a Rule 30(b)(6) Representative for Deposition

By Bailey Smith

In a perfect world, a Rule 30(b)(6) corporate representative would be chosen jointly by a corporation and its counsel, based not only on knowledge about the noticed topics but also on such criteria as demeanor and appearance, familiarity with the litigation process, and the representative’s ability and willingness to devote significant time and effort to deposition preparation. As a practical matter, however, the selection process is usually more haphazard and less inclusive; in many cases, the corporation unilaterally designates an individual who may or may not be familiar with the noticed topics, trusting counsel to transform that person into a knowledgeable and articulate representative. This article outlines the basic steps to ensuring that whoever has been chosen as the Rule 30(b)(6) representative provides the best possible voice for the corporation.


Once the representative has been identified, it is a good idea to perform a basic Internet search using sites such as Google, Facebook, and MySpace for any potentially embarrassing or damaging information and photographs. Although such materials are unlikely to be relevant or admissible at trial, opposing counsel may try to use any such materials at the deposition to discredit or fluster the representative. You will be far better prepared to handle such a situation if you’re already aware of the potential problem.


If at all possible, arrange to meet with the designated representative in person well before the deposition date. Doing so will enable you to make a careful and unhurried review of the pertinent issues and will allow you to schedule additional preparation time if necessary.


The first step in preparing the representative is to ascertain the scope and depth of the representative’s knowledge about the topics for which he or she has been designated. If the representative has personal knowledge about some or all of the topics, verify that this knowledge is accurate and comports with corporate records. For example, the representative may recall that a letter was mailed in May of 2000, when, in fact, the letter is dated June 15, 2000. Even if a particular discrepancy or inaccuracy is irrelevant in and of itself, opposing counsel can—and will—use even minor discrepancies and inaccuracies at trial to make the representative, and by extension the corporation, appear unreliable and less than trustworthy.


If there are deposition topics about which the representative lacks personal knowledge, it is your job to educate and prepare him or her to testify using reasonably available information and documents. A corporation that is unable to provide deposition testimony about a particular topic may be precluded from offering any evidence at trial on that topic and exposed to sanctions, so it’s crucial to ensure that the representative is knowledgeable and fully prepared to respond to questions about pertinent issues.


One of the best ways to begin educating the representative is by conducting a review of the pleadings, prior deposition transcripts, and documents exchanged in discovery. (In mass torts, these documents will frequently be so voluminous that a comprehensive review will be unrealistic, if not impossible. In such a case, you will need to analyze and decide which documents you feel are most important before preparing for the deposition.) Tempting as it may be, don’t leave the representative to review a stack of documents independently. Instead, you should conduct a joint page-by-page review, focusing on key documents that are likely to come up at the deposition. A methodical detailed document review will help refresh the representative’s memory and ensure the accuracy of his or her personal knowledge. In addition, this gives you an opportunity to ask questions that you may have about a particular document and its contents.


Keep in mind that communications between you and the representative may be discoverable. Accordingly, to the extent possible, you should avoid discussion of any privileged or confidential information, such as litigation strategy or the estimated value of the case, in the course of your preparation. Likewise, when preparing for the document review, make sure you omit documents that are privileged or otherwise protected and unnecessary to the preparation, such as internal law firm memoranda and emails.


Once you’re satisfied that the representative is substantively prepared and knowledgeable about the relevant subject matters, you’ll want to make sure that the representative is able to transmit that knowledge clearly and accurately, in a manner that reflects well on the corporation. The amount of time that you will need to spend on this aspect of preparation will depend on the individual representative. A representative who has testified pursuant to Rule 30(b)(6) in the past and is familiar with the deposition process is less likely to need or want extensive preparation than a novice representative.


At a bare minimum, you should make sure the representative is familiar with and understands the following general guidelines, which are equally applicable in the context of individual and corporate depositions:


  • Listen to the question. Pause and think before you answer.
  • Make sure you understand the question; if not, ask that the question be repeated or rephrased.
  • To the extent possible, keep your responses short and succinct.

It’s essential to remind the representative that he or she is acting as the voice of the corporation and, for that reason, should withhold any personal opinions, commentary, or characterizations. I was recently involved in a commercial insurance dispute, in which the defendant insurer’s Rule 30(b)(6) representative unwittingly characterized language in the insurance policy at issue as a “mistake” on the part of the insurer. Although inaccurate and seemingly insignificant at the time, the representative’s reference to a “mistake” in the policy was subsequently used by opposing counsel as support for bad-faith claims against the insurer.


It can also be helpful to conduct a practice question-and-answer session, using the Rule 30(b)(6) deposition notice as your outline. Doing so provides a preview of the actual deposition, which is likely to increase the representative’s comfort level, and it also refreshes the representative’s substantive knowledge of the case while highlighting any potential problematic areas that may require additional review and preparation.


Remember to take care of the logistical and housekeeping details. For example, you should notify the representative if the deposition will be videotaped and make recommendations regarding attire as you feel appropriate and necessary. Make sure the representative knows how to get to the deposition location and, if necessary, has access to safe and convenient parking.


Above all, don’t hesitate to spend as much time as you need preparing. The Rule 30(b)(6) representative is a significant figure in any corporate litigation, and a knowledgeable and articulate representative plays an important role in ensuring a favorable outcome for the corporation.


Keywords: Rule 30(b)(6), deposition, corporate litigation


Bailey Smith is available by email.


This article appears in the forthcoming Summer 2010 issue of Mass Torts Litigation from the Mass Torts Litigation Committee.

 

 

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