Tips on Effectively Preparing and Presenting 30(b)(6) Witnesses (833 words)
by David Sillers and Angela Zambrano
When preparing a witness to speak on behalf of a company, many of the normal deposition “rules” or best practices do not apply. Indeed, teaching a witness new information to provide under oath for the company can seem both counterintuitive and artificial. But the Rules and the case law are clear: an organization has an obligation to provide a human being to testify on its behalf in litigation. This is true even if all employees with relevant knowledge have long since left the company, the requested information is known by a number of people across the organization but not one single human being, or the deponent did not have any personal knowledge of the deposition topic before meeting with the lawyer. Set forth below are some basic tips for the next time you are preparing a witness to speak not just for himself but for the entire organization. No pressure.
1. Negotiate Topics. Sometimes deposition topics can be overbroad or otherwise inappropriate. Protective orders can limit the scope or prevent access to privileged subjects. See Murphy v. Kmart Corp., 255 F.R.D. 497 (D.S.D. 2009) (holding certain topics overbroad); JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209 F.R.D. 361 (S.D.N.Y. 2002) (holding that “facts” underlying party’s claims and defenses to be protected work product). However, even if a protective order is in place, you should try to narrowly and succinctly define the scope of the testimony so that your witness “knows what he needs to know.” If your opponent is also a corporation, remind your opponent that agreeing upon focused, relevant topics is mutually beneficial and that the negotiation is a two-way street.
2. Pick the Right Representative. The person with the most personal knowledge may not be the best corporate representative—indeed, because personal knowledge is not a requirement there is substantial latitude in terms of who may be designated. QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012) (explaining latitude in corporate representative designation). Pick the person who will be the best representative for the organization and teach her the information she does not already know.
Remember, designating more than one representative multiplies the amount of time available for questioning, so it is generally best to designate a single witness. Former employees may be designated as representatives, and some courts have even allowed experts to serve as corporate representatives.
3. Prepare Properly and with a Purpose. The corporation has a duty to prepare the representative to speak. Thus, “I don’t know” is generally not an acceptable response—unless, of course, no one in the corporation knows.
If the representative is also a fact witness, take care to properly explain (and police) the distinction between answers based on personal versus corporate knowledge.
Use documents to prepare your witness, but consider identifying employees with knowledge and supervising information exchanges between the witness and other corporate employees. Always remember that you need to be able to demonstrate how the witness was prepared at the deposition.
Keep in mind that the witness can be asked to identify the documents reviewed in preparation for the deposition. See, e.g. Seven Seas Cruises v. V. Ships Leisure Sam, 2010 WL 5187680, at *3 (D.S. Fla. Dec. 10, 2010) (citing cases). For this reason, be mindful of giving your opponent a roadmap to bad facts or documents. Lastly, do not show your deponent privileged material.
4. Assist at the Deposition. During the deposition itself, consider keeping a “cheat sheet” of important numbers, facts and dates for the representative: nothing says that a corporate representative must have a photographic memory. Also, if there are many complicated topics, the company can have knowledgeable employees at the ready to consult with the representative by phone during breaks.
If the representative gives inaccurate testimony, be vigilant to correct it during the deposition, if needed through cross examination. If it does go uncorrected, the weight of authority holds that the corporate representative’s statements are not judicial admissions and therefore may be impeached by other evidence. See March Madness Athletic Ass’n, LLC v. Netfire, Inc., 310 F.Supp.2d 786, 810-11 (N.D. Tex. 2003) (holding 30(b)(6) statement not to be judicial admission); Lindquist v. City of Pasadena, Tex., 656 F.Supp.2d 662, 697-98 (S.D. Tex. 2009) (same). However, some cases hold that a party failing to promptly correct the record may be estopped from contradicting 30(b)(6) testimony. See, e.g., Rainey v. Am. Forest & Paper Ass’n, Inc., 26 F.Supp.2d 82, 93-94 (D.D.C. 1998) (refusing to admit affidavit contradicting 30(b)(6) testimony filed only days after summary judgment motion).
The opponent may attempt to ask questions outside the scope of agreed topics or those that invade the privilege. While the weight of authority holds it is improper to instruct a representative not to answer questions outside the scope, counsel should state the impropriety on the record. See Detoy v. City & County of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal 2000). Instructions not to answer on privilege grounds are proper, as in any deposition.