David Herzog and I co-presented a CLE, for Defense Trial Counsel of Indiana, on practice tips related to 30(b)(6) depositions. Most of the cited decisions are from the U.S. District Courts in Indiana, but the main points are generally applicable.

1. Rule 30(b)(6)
Depositions:
The Basics and Beyond
PRESENTED BY:
DAVID HERZOG, FAEGRE BAKER DANIELS, LLP
CARL HAYES, BINGHAM GREENEBAUM DOLL, LLP

2. Fed. R. Civ. P. 30(b)(6)
“Notice or Subpoena Directed to an Organization. In its notice or subpoena, 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. A subpoena must
advise a nonparty organization of its duty to make this designation. The persons
designated must testify about information known or reasonably available to the
organization. This paragraph (6) does not preclude a deposition by any other
procedure allowed by these rules.”

3. Why Rule 30(b)(6)? – History and Purpose
 Added to Federal Rules of Civil Procedure in 1970
 “[O]perates as a vehicle for streamlining the
discovery process.” Hooker v. Norfolk S. Ry. Co.,
204 F.R.D. 124, 126 (S.D. Ind. 2001).

4. Why Rule 30(b)(6)? – History and Purpose
 Advisory Committee: intended the procedure to
“curb the ‘bandying’ by which officers or
managing agents of a corporation are deposed in
turn but each disclaims knowledge of facts that
are clearly known to persons in the
organization and thereby to it.”

5. Why Rule 30(b)(6)? – History and Purpose
 Advisory Committee: “The provisions should also
assist organizations which find that an
unnecessarily large number of their officers and
agents are being deposed by a party uncertain of
who in the organization has knowledge.”

6. Rule 30(b)(6): The Basics
Rather than trying to guess who knows what, Rule
30(b)(6) allows the party seeking discovery from an
organization to identify specific topics about which it
seeks information.

7. Rule 30(b)(6): The Basics
As with any other deposition, a 30(b)(6) deposition is
initiated with a notice or subpoena. The notice “must
give reasonable notice to every other party.” Fed. R.
Civ. P. 30(b)(1).
Under Local Rules in both the Northern and Southern
Districts of Indiana, at least fourteen days notice is
required for any deposition. See N.D. Ind. LR 30-1(b);
S.D. Ind. LR 30-1(d).

8. Rule 30(b)(6): The Basics
As with any other deposition, the notice “must state
the time and place of the deposition[.]” Fed. R. Civ. P.
30(b)(1).
For a party deposition, the noticing party may
choose the location. If a responding party doesn’t like
the location, it may petition the court for a protective
order to pick a different place.

9. Rule 30(b)(6): The Basics
For a non-party deposition, the deposition must
occur within 100 miles of the non-party
organization’s headquarters or within 100 miles of
where the designated witness resides (if different
from the location of the headquarters). See Fed. R.
Civ. P. 45(c)(1)(A).

10. Rule 30(b)(6): The Basics
The Rule 30(b)(6) notice or subpoena “must describe
with reasonable particularity the matters for
examination.”

11. Rule 30(b)(6): The Basics
“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.”

12. Rule 30(b)(6): The Basics
In general, “[u]nless otherwise stipulated or ordered
by the court, a deposition is limited to one day of 7
hours.” Fed. R. Civ. P. 30(d)(1).
If the organization designates more than one person
to testify regarding 30(b)(6) topics, each designee is
considered a separate deposition for purposes of that
durational limit. See Advisory Committee notes to
2000 Amendments.

13. Rule 30(b)(6): The Basics
“The persons designated must testify about
information known or reasonably available to the
organization.” Fed. R. Civ. P. 30(b)(6) (emphasis
added).
In other words, the organization and/or its counsel
must prepare the witness(es) to testify.

14. Rule 30(b)(6): Basics
The testimony of the person(s) designated, with
regard to the noticed topics, is the organization’s
testimony, and it is binding on the organization. See,
e.g., Brandt Indus., Ltd. v. Pitonyak Mach. Corp., 2012
WL 4027241, at *4-5 (S.D. Ind. Sept. 12, 2012) (“Rule
30(b)(6) deponent’s testimony does not represent
the knowledge or opinions of the deponent, but that
of the business entity.”)

15. Rule 30(b)(6): Beyond the Basics
How Binding?
Though an organization “is bound by its Rule 30(b)(6)
testimony . . . This does not mean that the witness has
made a judicial admission that formally and finally decides
an issue.” Brandt Indus., Ltd. v. Pitonyak Mach. Corp., 2012
WL 4027241, at *4-5 (S.D. Ind. Sept. 12, 2012) (quoting
Canal Barge Co. v. Commonwealth Edison Co., No. 98 C
0509, 2001 WL 817853, at *1 (N.D. Ill. July 19, 2001)).

16. Rule 30(b)(6): Beyond the Basics
See also A & E Products Group, L.P. v. Mainettie USA
Inc., No. 01 Civ. 10890, 2004 WL 345841, at *7 (S.D.N.Y. Feb.
25, 2004) (“[A] corporation is ‘bound’ by its Rule 30(b)(6)
testimony, in the same sense that any individual deposed
under Rule 30(b)(1) would be ‘bound’ by his or her
testimony. All this means is that the witness has committed
to a position at a particular point in time. It does not mean
that the witness has made a judicial admission that formally
and finally decides an issue.”).

17. Rule 30(b)(6): Beyond the Basics
How Knowledgeable and Prepared?
“The effect of the rule is to place upon the business entity the
burden of identifying witnesses who possess knowledge responsive
to subjects requested in the Rule 30(b)(6) request.” Hooker v. Norfolk
S. Ry. Co., 204 F.R.D. 124, 126 (S.D. Ind. 2001) (citation omitted).
Rule 30(b)(6) also “imposes a duty upon the named business entity
to prepare its selected deponent to adequately testify not only on
matters known by the deponent, but also on subjects that the entity
should reasonably know.” Id. (citation omitted).

18. Rule 30(b)(6): Beyond the Basics
“Producing an unprepared witness is tantamount to a
failure to appear and is sanctionable under Rule 37(d).”
Crouse Cartage Co. v. Nat’l Warehouse Inv. Co., IP02-
071CTK, 2003 WL 23142182, at *6 (S.D. Ind. Jan. 13, 2003)
(internal quotes omitted).

19. Rule 30(b)(6): Beyond the Basics
See also QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D.
676, 696, 697–98 (S.D. Fla. 2012) (holding that corporation
“will not be able to take a position at trial on those issues
for which [the corporate representative] did not provide
testimony”).

20. Rule 30(b)(6): Beyond the Basics
See also Great Am. Ins. Co. of New York v. Vegas Const. Co.,
251 F.R.D. 534, 539 (D. Nev. 2008) (stating the lack-of-
knowledge answer is itself an answer, which will bind the
corporation at trial, and that where the organization “failed
to designate an available, knowledgeable, and readily
identifiable witness, then the appearance is, for all practical
purposes, no appearance at all”).

21. Rule 30(b)(6): Beyond the Basics
What is “known or reasonably available”?
See Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638
(D. Minn. 2000) (defining “reasonably available” as
information for which the organization has “the legal right,
authority, or ability to obtain upon demand”).

22. Rule 30(b)(6): Beyond the Basics
See also Sprint Commc’ns Co., L.P. v. Theglobe.com, Inc., 236
F.R.D. 524, 528 (D. Kan. 2006) (“If need be, the responding
party ‘must prepare deponents by having them review prior
fact witness deposition testimony as well as documents and
deposition exhibits.’”).

23. Rule 30(b)(6): Beyond the Basics
See also Great Am. Ins. Co. of New York v. Vegas Const. Co., 251
F.R.D. 534, 541 (D. Nev. 2008) (30(b)(6) deponent “was required
to educate an appropriate Rule 30(b)(6) designee to provide
knowledgeable answers reasonably available to the corporation,
which include information ascertainable from project files and
documents in the repository, information from past employees,
witness testimony and exhibits, or any other sources available to
the corporation, including factual information learned through
or from its counsel”).

24. Rule 30(b)(6): Beyond the Basics
But see Crouse Cartage Co. v. Nat’l Warehouse Inv. Co., IP02-
071CTK, 2003 WL 23142182, at *5-6 (S.D. Ind. Jan. 13, 2003)
(finding that organization complied with Rule 30(b)(6) where its
counsel forwarded the notice to high level employee and
“requested that he designate employees who may be
competent to testify on behalf of the corporation[,]” and
“witnesses testified they had not seen the notice of deposition
until the morning of their deposition, and that their knowledge
of the topics listed therein was limited.”

25. Rule 30(b)(6): Beyond the Basics
“Rule 30(b)(6) does not promise a perfect deponent, just a
knowledgeable one under the circumstances.” EEOC v.
Celadon Trucking Servs., Inc., 1:12-cv-275-SEB-TAB, 2013 WL
5915206, at *1 (S.D. Ind. Nov. 1, 2013).

26. Rule 30(b)(6): Beyond the Basics
“Simply because defendant’s witness could not answer
every question posed to him does not equate to the fact
that defendant did not satisfy its obligation to prepare its
30(b)(6) witness.” Costa v. County of Burlington, 254 F.R.D.
187, 190 (D. N.J. 2008) (quoted in EEOC v. Celadon Trucking
Servs., Inc., 1:12-cv-275-SEB-TAB, 2013 WL 5915206, at *1
(S.D. Ind. Nov. 1, 2013)).

27. Rule 30(b)(6): Beyond the Basics
How to Respond to Overreaching 30(b)(6) Notice?
“’[U]nless the party failing to act has a pending motion for
protective order,’” the party’s failure to appear at a
properly noticed deposition ‘is not excused.’” Slabaugh v.
LG Elecs. USA, Inc., 1:12-cv-01020-RLY-MJD, 2015 WL
500849, at *4 (S.D. Ind. Feb. 3, 2015) (quoting Fed. R. Civ. P.
37(d)(2)) (emphasis in original).

28. Rule 30(b)(6): Beyond the Basics
See also Pain Center of S.E. Ind., LLC v. Origin Healthcare
Solutions, LLC, 1:13-cv-00133-RLY-DKL, 2015 WL 5552646, at
*2 (S.D. Ind. Sep. 17, 2015) (awarding sanction of fees and
expenses and noting that, “[w]hen a party receives proper
notice of its deposition, only a pending motion for a
protective order will excuse it from appearing pursuant to
the notice.”) (citation omitted).

29. Rule 30(b)(6): Beyond the Basics
See also New Eng. Carpenters Health Benefits Fund v. First
Databank, Inc., 242 F.R.D. 164, 166 (D.Mass. 2007) (granting
motion to compel compliance with Rule 30(b)(6) notice and
disregarding objection that information was more
appropriately gained through interrogatories instead of a
deposition, because deponent failed to move for protective
order prior to refusing to sit for deposition).

30. Rule 30(b)(6): Beyond the Basics
See also U.S., ex rel. Fry v. Health All. of Greater Cincinnati,
No. 1:03-CV-167, 2009 WL 5227661, at *2 (S.D. Ohio Nov.
20, 2009) (same).
In re Toys R Us–Delaware, Inc. Fair and Accurate Credit
Transactions Act (FACTA) Litigation, 2010 WL 4942645 at * 3
(C.D. Cal. Jul.29, 2010) (same).

31. Rule 30(b)(6): Beyond the Basics
What Do You Argue in Your Motion for Protective Order?
“Rule 30(b)(6) does not set its own discovery standard. . . .
[Rule] 26(b)(1) is the proper standard to resolve [a]
dispute.” Hooker v. Norfolk S. Ry. Co., 204 F.R.D. 124, 126
(S.D. Ind. 2001).

32. Rule 30(b)(6): Beyond the Basics
“The burden lies with the party seeking the protective order
to show good cause for the entry of the order by making a
‘particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory
statements.’” Gossar v. Soo Line R. Co., 3:09-cv-9-RLY-WGH,
2009 WL 3570335, at *2 (S.D. Ind. Oct. 27, 2009) (quoting
Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 at n.16 (1981)).

33. Rule 30(b)(6): Beyond the Basics
Legitimate Objections:
Request does not seek “nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its
likely benefit.” Fed. R. Civ. P. 26(b)(1).

34. Rule 30(b)(6): Beyond the Basics
Legitimate Objections:
“[T]he discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive[.]”
Fed. R. Civ. P. 26(b)(2)(i).
The identified topics fail to “describe with reasonable
particularity the matters for examination.” Fed. R. Civ. P.
30(b)(6).

35. Rule 30(b)(6): Beyond the Basics
What Types of Requests Do Not Pass Muster?
See, e.g., Gossar v. Soo Line R. Co., 3:09-cv-9-RLY-WGH, 2009 WL
3570335, at *2 (S.D. Ind. Oct. 27, 2009) (granting protective
order as to topic of “[a]ll facts alleged by Defendant in its
Answer and Affirmative Defenses” and noting that “a party may
not serve a Rule 30(b)(6) notice for the purpose of requiring the
opposing party to marshal all of its factual proof and prepare a
witness to be able to testify on a particular defense.”) (internal
quotes and citation omitted).

36. Rule 30(b)(6): Beyond the Basics
See also Catt v. Affirmative Ins. Co., 2:08-CV-243-JVB-PRC, 2009
WL 1228605, at *6-7 (N.D. Ind. Apr. 30, 2009) (noting that “[t]he
purpose of the reasonable particularity requirement is to allow
the business to identify a witness . . . who possesses knowledge
responsive to the subjects identified” and granting protective
order as to topics such as “facts contained in the documents to
be produced,” the “allegations of the Plaintiff’s complaint,” and
the “allegations and answers of the defendant’s answer and
affirmative defenses”).

37. Rule 30(b)(6): Beyond the Basics
Navigating the Deposition:
As with other depositions, any objection that “relates to the
manner of taking the deposition, the form of a question or
answer, the oath or affirmation, a party’s conduct, or other
matters that might have been corrected at that time” are
waived if not raised during the deposition. Fed. R. Civ. P.
32(d)(3)(B).

38. Rule 30(b)(6): Beyond the Basics
Objections to questions that are outside the scope of the
noticed topics may be raised to preserve the argument that,
as to those questions, the deponent was not speaking for
and binding the organization.
However, the “beyond the scope” objection does not
provide a basis for a refusal to answer a question. The
witness may only be instructed not to answer when a
question calls for the disclosure of privileged information.
See Fed. R. Civ. P. 30(c)(2).

39. Rule 30(b)(6): Beyond the Basics
Use of Written Materials
30(b)(6) designees may use materials and documents during
the 30(b)(6) deposition to assist their testimony, provided
those materials are provided to opposing counsel per
Evidence Rule 612.

40. Rule 30(b)(6): Beyond the Basics
See, e.g., Wausau Underwriters Ins. Co. v. Danfoss, LLC, 310
F.R.D. 683, 688 (S.D. Fla. Sept. 30, 2015) (approving use of
document challenged as a “script” when the 30(B)(6) was
transparent about relying on it, represented that it stated
the views of the corporation, and produced the document
to counsel).

41. Rule 30(b)(6): Beyond the Basics
See also Zeng v. Elec. Data Sys. Corp., 2007 WL 2713905, at
*4-5 (E.D. Va. Sept. 13, 2007) (stating that “given the duty of
a corporate designee to testify to all information reasonably
known to the corporation, including matters beyond the
designee’s personal knowledge, a well-prepared deposition
notebook has the potential to enhance the accuracy and
depth of a designee’s testimony”; and stating that use of a
notebook “is not indicative of a designee’s unpreparedness;
nor is it evidence of witness coaching”).

42. Rule 30(b)(6): Beyond the Basics
But - documents used to refresh a witness’s recollection,
even during preparation for 30(b)(6) testimony, are not
protected by the work-product doctrine.
See, e.g., Eli Lilly & Co. v. Arch Ins. Co., No. 1:13-CV-01770-
LJM-TAB, 2017 WL 3838689, at *4-5 (S.D. Ind. Sept. 1, 2017)
(holding that documents compiled by counsel, summaries,
and electronic notes reviewed by designee to refresh
recollection had to be produced per Evidence Rule 612).

43. Rule 30(b)(6): Beyond the Basics
Further, facts related to the 30(b)(6) designee, even by counsel,
are not protected from disclosure by either the work product
doctrine or the attorney-client privilege.
See, e.g., State Farm Mut. Auto. Ins. Co. v. New Horizon, Inc.,
250 F.R.D. 203, 215–16 (E.D. Pa. 2008) (“To the extent that
defense counsel’s questions seek relevant, non-privileged facts
learned from discussions with counsel, and do not seek counsel
for State Farm’s ‘mental impressions, conclusions, opinions, or
legal theories,’ those questions must be answered.”).