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Magistrate Judge Examines Broad Scope of Rule 30(b)(6) Depositions


By Karen L. Stevenson, Litigation News Associate Editor – December 29, 2010

Courts and litigants routinely struggle with the proper scope of inquiry in depositions of persons designated to testify on behalf of a corporation pursuant to Federal Rule of Civil Procedure Rule 30(b)(6). In a recent decision, a magistrate judge from the U.S. District Court for the Northern District of Iowa rejected the minority view that such depositions must be limited to the topics specified in the deposition notice. American General Life Insurance Co. v. Billard.


The underlying case involved a declaratory judgment action relating to a life insurance policy. The defendant’s counsel took the deposition of a person designated to testify by American General in response to a Rule 30(b)(6) notice. The notice identified 16 different subjects for testimony. Disputes arose during the deposition regarding the scope of the examination. American General’s witness was repeatedly instructed not to answer certain questions because those questions went beyond the scope of the topics identified in the deposition notice.


As a result, after a full day of questioning and objections, counsel for American General suspended the deposition and filed a motion for protective order to limit further questioning to the “subjects identified in the notice.” Counsel for the defendant filed a competing motion for sanctions for American General’s failure to cooperate in discovery. Ultimately, the magistrate judge denied the motion for protective order and partially granted the defendant’s motion for sanctions.


Magistrate Judge Refuses to Limit Rule 30(b)(6) Questioning
To support its motion, American General primarily relied on a 1985 decision from the U.S. District Court for the District of Massachusetts in which the court held that the questioning attorney “must confine the examination to the matters stated ‘with reasonable particularity’ which are contained in the Notice of Deposition.” Paparelli v. Prudential Insurance Co. of America. The magistrate judge in Billard rejected this reasoning. He noted that Paparelli reflects a minority view and “every court which has addressed this issue since Paparelli has taken a different view.” The magistrate judge noted that a majority of courts have concluded that “the questioning of a Rule 30(b)(6) deponent is not limited to those subjects identified in the Rule 30(b)(6) notice.”


In rejecting American General’s motion, the magistrate judge agreed with district courts in Florida, New Hampshire, the District of Columbia, Pennsylvania, and California, which have all concluded that a Rule 30(b)(6) deposition is subject to the “broad scope” of Federal Rule of Civil Procedure 26(b)(1). These courts held that no special protections are afforded to a deponent simply because the deposition is noticed under Rule 30(b)(6).


With regard to sanctions, the magistrate judge also ruled that American General’s objections to questions that went beyond the Rule 30(b)(6) topics were not sanctionable. The court noted that there was no precedential authority in the U.S. Court of Appeals for the Eighth Circuit on this issue and that American General had at least one case to support its position.


The court did, however, award sanctions due to counsel for American General’s instructions to the witness not to answer certain questions based on the scope of the Rule 30(b)(6) notice. Instead of instructing the witness not to answer, the court determined that counsel should have suspended the deposition to “immediately” seek relief from the court. The court awarded the defendant his attorney fees incurred in filing the motion for sanctions.


Know Your Jurisdiction’s Rules; Carefully Prepare Your Witness
“Whether taking or defending, attorneys should first determine whether their jurisdiction is one that follows the majority rule before conceding the issue,” advises Andrew E. Shipley, McLean, VA, a member of the ABA Section of Litigation’s Federal Practice Task Force.


“If broader questioning is permitted in your jurisdiction,” Shipley cautions, “keep in mind that Rule 30(b)(6) depositions are designed to obtain the organization’s knowledge about the topics listed in the notice. Therefore, if a question goes beyond the scope of the notice, the defending lawyer should make clear on the record that the witness is not authorized to answer for the organization and that his or her answer will be a purely personal one.”


“As with everything in our profession, preparation is key,” emphasizes Anna D. Torres, West Palm Beach, FL, cochair of the Section of Litigation’s Minority Trial Lawyer Committee. Torres advises lawyers taking a Rule 30(b)(6) deposition to “have a copy with you at the deposition of the case law that permits questions beyond the designation” to provide to opposing counsel if necessary. “Put disputed questions on the record in the event you have to file a motion to compel,” she says.


“Witness preparation is also important,” says Shipley. “A defending lawyer should ensure that the witness understands his or her responsibilities as a designee. To that end, during the deposition prep, the witness should be reminded that questions that go beyond the scope of the notice should be answered only if he or she has personal knowledge sufficient to respond. The witness should not make up for lack of personal knowledge with conjecture or speculation,” he says.


Keywords: litigation, Federal Rules of Civil Procedure, Rule 30(b)(6) depositions, scope of inquiry


 
Related Resources

  • » Am. Gen. Life Ins. Co v. Billard, 2010 U.S. Dist LEXIS 114961 (N.D. Iowa Oct. 28, 2010).
  • » Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727 (D. Mass. 1985).
  • » King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995).
  • » Philbrick v. Enom, Inc., 593 F. Supp. 2d 352, 363 (D.N.H. 2009).
  • » Overseas Private Inv. Corp. v. Mandelbaum, 185 F.R.D. 67 (D.D.C. 1999).
  • » Cabot Corp v. Yamulla Enters., Inc., 194 F.R.D. 499 (M.D. Pa. 2000).
  • » Detoy v. City & County of S.F., 196 F.R.D. 362, 366 (N.D. Ca. 2000).

 

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