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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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