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Federal Bar Update: Rule 30(b)(6) depositions

John Maley
July 2, 2014
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FedBarMaley-sigOne of the most useful tools in discovery is the Rule 30(b)(6) deposition, allowing a party to depose an entity, which must then produce one or more witnesses to testify to enumerated topics. The rule provides in part: “[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 then 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. The persons designated must testify about information known or reasonably available to the organization.”

For a Rule 30(b)(6) deposition to be effective, the notice must describe the topics to be covered. Thus, in Pringle v. Garcia, 2013 U.S. Dist. LEXIS 65463 (N.D. Ind. May 8, 2013), Magistrate Judge Andrew Rodovich denied a motion to compel further answers to a 30(b)(6) deposition, noting that the deposing party failed to describe the matters to be discussed in the deposition notice.

In practice, disputes sometimes arise regarding the sufficiency of the witness’s knowledge. In a recent District Court ruling, for instance, the entity served with the 30(b)(6) notice failed to produce a sufficiently knowledgeable witness and was sanctioned. Waste Connections, Inc. v. Appleton Elec., LLC, 2014 U.S. Dist. LEXIS 40984 (D. Neb. Mar. 27, 2014). The court wrote, “The testimony of a Rule 30(b)(6) witness represents the collective knowledge of the corporation, not of the specific individual deponents. 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. If the rule is to promote effective discovery regarding corporations, the spokesperson must be informed. [[T]he corporation] must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the interrogator] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed by [the interrogator] as to the relevant subject matters.” (citations omitted)

The court granted the motion to compel, concluding, “The plaintiff designated an individual who had limited knowledge of the matters set forth in the deposition notice and completely failed to prepare Mr. Bowman so that he may provide knowledgeable and binding answers on behalf of the plaintiff.” The court also awarded attorney fees as a sanction.

Locally, in EEOC v. Celadon Trucking Services, Inc., 2013 U.S. Dist. LEXIS 156485, (S.D. Ind. Nov. 1, 2013), the EEOC moved to compel the employer to produce a proper Rule 30(b)(6) deponent regarding personnel policies on its recruitment, application and orientation processes for over-the-road truck drivers from 2007 forward. The employer produced its director of recruiting to testify to these topics, and thereafter the EEOC challenged his knowledge.

Magistrate Judge Tim Baker denied the motion, explaining, “Celadon Trucking’s brief thoroughly and persuasively reveals that Chesterman was an acceptable deponent, even though admittedly he was unable to answer some questions posed to him. Rule 30(b)(6) requires the business entity to prepare a deponent to adequately testify on matters known by the deponent, and also on subjects that the entity should reasonably know. Sanyo Laser Products, Inc. v. Artista Records, Inc., 214 F.R.D. 496, 503 (S.D. Ind. 2003). Rule 30(b)(6) does not promise a perfect deponent, just a knowledgeable one under the circumstances.”

Judge Baker further wrote, “Chesterman is Celadon Trucking’s current director of recruiting. Under the circumstances, Chesterman was the most qualified individual to respond to the Rule 30(b)(6) topics. Indeed, this was precisely what Chesterman stated under oath as he spent more than five hours discussing an array of topics covering a six-year period. [Docket No. 73 at 584, 593.] In fact, the EEOC has not identified a current Celadon employee who has greater knowledge than Chesterman concerning the Rule 30(b)(6) topics. Moreover, in the days following Chesterman’s deposition the EEOC took the depositions of at least four Celadon recruiters, who presumably could help fill in any gaps in Chesterman’s testimony. For these reasons, the EEOC’s motion to compel a proper Rule 30(b)(6) deponent is denied.”

Save the date – The 2014 annual federal civil practice seminar will return Dec. 19 this year; mark your calendars.•

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John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters and appeals. The opinions expressed are those of the author.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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