The 30(b)(6) Witness
Although I don’t teach or write in the area of civil procedure, my days as in-house counsel gave me a certain amount of exposure to how civil litigation affects corporate defendants. Which leads me to ask a small but nagging question: Should Rule 30(b)(6) be reconsidered?
As many readers may know, Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that a party may notice a corporation as a deponent on one or more issues; the corporation must then designate one or more employees (described in the rule as “officers, directors, or managing agents, or other persons”) to testify on behalf of the corporation on each of those issues. Because the 30(b)(6) witness testifies on behalf of the corporation, and not on her own behalf, she is obligated to become educated on “matters known or reasonably available to the organization.” If the 30(b)(6) witness cannot answer the questions for which she has been designated, the corporation is deemed to have failed to comply with the rule and may be required to produce another witness or, in some cases, be subject to sanctions. “I don’t know,” it is argued, is not a proper answer for a 30(b)(6) witness to give.
Of course, even when the subject matter in a deposition notice is narrowly drawn and a witness is well chosen, no employee is going to possess all of the corporation’s knowledge on that topic. Accordingly, much time is spent loading up the 30(b)(6) witness in lawyer-driven preparation sessions with the information the legal team has been able to gather from documents, other employees, and so forth. The poor witness then has to hope that she recalls all of this recently acquired information and can respond intelligently to questions posed during the deposition as to what the corporation “knows” about the topic. It’s a bit like telling the actor who plays Rosencrantz that he’s going to be performing the entirety of Hamlet as a monologue come Friday evening.
The purpose behind the rule is to prevent a situation in which each of a corporation’s employee-deponents disclaim personal knowledge of facts that are known to someone in the organization, leaving the plaintiff stymied in his attempt to gain relevant evidence. But without conscientious implementation, the rule risks serving as a heavy-handed litigation tactic in which a skillful attorney can get the 30(b)(6) witness to make admissions on behalf of the corporation largely as a result of her own uncertainty about her role and the pressure of expected omniscience.
Given that so much of the information funneled through the 30(b)(6) witness is the result of the efforts of counsel, wouldn’t a series of written interrogatories (or requests for admissions) accomplish the same goal with much less trauma for the unlucky 30(b)(6) designee? Or is the nature of a live deposition — which allows for narrow, fact-specific questions and the ability to pose follow-ups that depend on the answers provided — something that simply cannot be duplicated in written form?
(For anyone who is interested, at least one article addresses this question head-on: Kent Sinclair & Roger P. Fendrich, Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(B)(6) and Alternative Mechanisms, 50 Ala. L. Rev. 651 (1999).)