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Deposition of Corporation

By C. Steven Fury

Civil Rule 30(b)(6) is one of the great equalizers assisting an individual plaintiff to even the playing field against the largest corporation. When properly used it can be a most effective tool in a discovery arsenal against a corporate defendant. A Rule 30(b)(6) deposition notice requires a corporate defendant to produce a witness who is obligated to know everything a corporation knows on a subject . The witness must testify "fully, completely and un-evasively" and be prepared by the corporation to "give complete, knowledgeable and binding answers on behalf of the corporation." Through proper use of a Rule 30(b)(6) deposition, a corporate witness can be required to attempt to justify a corporation's actions. This can be especially fun when the corporate defense lawyer has pled a kind of inconsistent, alternative or hypothetical defenses permitted by CR 8(e)(2).

A corporate defendant is required to produce a knowledgeable witness. Repeated answers of "I don't know" can be considered "tantamount to a failure to appear" and, if deemed egregious by the Court, subject the corporation to sanctions.

Because some defense counsel are well-aware of the great boon the Rule 30(b)(6) deposition can be to the plaintiff, they interpose a flurry of objections and obstruction. It is useful to know that what little judicial gloss there is on the rule, almost all of it favorable to the party taking the corporate deposition.

THE LAW

A. History.

Before the 1970's amendments to the Federal Rules of Civil Procedure, a party seeking to take the deposition of a corporation had to note the deposition of an officer, manager or other employee and hope that this witness was the knowledgeable witness. This led to the practice, still employed by corporate defendants, of "bandying" the deposing lawyer around the corporation by witnesses repeatedly answering "I don't know, and don't know who does" to crucial questions. It was in part to curb this practice that Rule 30(b)(6) was adopted. E.g., United States v. Taylor , 166 F.R.D. 356, 360 (M.D.N.C. 1996); SEC v. Morelli , 143 F.R.D. 42 (S.D.N.Y. 1992); Advisory Committee Notes to Rule 30(b)(6).

B. The Rule.

Civil Rule 30(b)(6) provides:

A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested.