How a Rule 30(b)(6) Deposition Works

The Federal Rules and the Maryland Rules allow parties obtain discovery for trial with a variety of mechanisms. At the top of the food chain of these possible discovery tools is depositions.

Mitt Romney's famous quote in 2012 notwithstanding, corporations are not people. So when you depose company employees, you often get what the creators of Rule 30(b)(6) called “bandying.” This is when the company's employees all deny individual knowledge facts that are certainly known to the company. But you just do not have the right person. (Heads up: you can still face this problem in some cases where the "company" is an Enron-like maze of related corporations. In this case, you need to get deposition notices for every possible entity.)

Rule 30(b)(6) was devised 45 years ago to solve this problem. The Rule allows a part to name the corporation as deponent and identify the topics of inquiry for the testimony. So the deposing party must give a notice of deposition, like the one above, that sets forth the subject matter of the deposition with “reasonable particularity.”

A deposition pursuant to Rule 30(b)(6) is substantially different from a witness's deposition as an individual. The testimony of a Rule 30(b)(6) designee goes to the knowledge of the corporate entity, not of the individual representative of the organization. Rule 30(b)(6) designees present the organization's position on the noticed topics, and provides the entities interpretation of events and documents. The key for plaintiffs' lawyers is that 30(b)(6) witness binds the entity and he is responsible for providing all the relevant information known or reasonably available to the entity. That is a powerful weapon against the "I don't know" brigade.

• Sample 30(b)(6) subpoena
• Sample 30(b)(6) document request

The corporation could hire Leonardo DiCaprio to answer the questions. There are no restrictions on who it can designate. But, more typically, they will choose one or more employees to testify to speak to these topics. The answer given to these questions can bind the corporation at trial.

• Murphy v. Kmart, 255 F.R.D. 497, 506 (D. S.D. 2009). The court honed in on the reasonable particularity” we talked about above, noting the importance of discreet topics because companies can "face sanctions for failing to adequately produce and prepare its deponents.'
• Sanyo Laser Products v Arista Records., 214 F.R.D. 496 (S.D. 2003). The court stated that the rule is "designed to prevent ‘bandying,’ the practice of presenting employees for their deposition who disclaim knowledge of facts known by other individuals within the entity.
• Black Horse Lane v. Dow Chem., 228 F.3d 275, 304 (3d Cir. 2000). This case provides this epic line: "In reality, if a Rule 30(b)(6) witness is unable to give useful information he is no more present for the deposition than would be a deponent who physically appears for the deposition but sleeps through it.”
• Webb v. District of Columbia, 189 F.R.D. 180 (D.D.C. 1999). The court reinstated a default judgment in a racial discrimination case for a host of infractions, including the failure to produce Rule 30(b)(6) witnesses who could speak to the designated topics. The court held that defendant “failed miserably in its duties under Rule 30(b)(6) to proffer witnesses capable of testifying to matters known or reasonably available to the organization."
• Thomas v. Hoffman-LaRoche, 126 F.R.D. 522, 525 (N.D. Miss. 1989). The court sanctioned the defendant because it did not produce witnesses to speak to designed issues in 30(b)(6) notice.