Sunday, August 06, 2017

FRCP 30(b)(6) inquiries are not objectionable solely because the designation would require testimony about a corporation’s opinion or the application of law to facts

In the post Rule 30(b)(6) at 45: Is It Still Your Friend? , some issues with 30(b)(6) depositions are addressed:

In Sigmund v. Starwood Urban Retail VI, LLC, 236 F.R.D. 43 (D.D.C. 2006), the court considered a motion to compel a 30(b)(6) corporate designee to respond to questions. The district court rejected the defendant’s argument that “legal opinions are more appropriately sought through contention interrogatories” as contrasted with 30(b)(6) testimony. The court noted that the advisory committee intended for Rule 30(b)(6) to address mixed questions of law and fact, such as the basis for interpretation of a provision of a contract. Id. at 45. The Sigmund court reviewed and summarized decisions evaluating the request to require an inquiring party to use contention interrogatories as opposed to proceeding by Rule 30(b)(6) and concluded that, while there should be a case-by-case determination of such requests, 30(b)(6) inquiries are not objectionable solely because the designation would require testimony about a corporation’s opinion or the application of law to facts.

As to defendant government bodies:

In High Five Investments, LLC v. Floyd County, Ga., 239 F.R.D. 663 (N.D. Ga. 2007), the court considered the defendant county’s motion for a protective order seeking to prevent a 30(b)(6) deposition. The 30(b)(6) notice contained the following designation:

Such designated agent(s) will be prepared to testify with regard to the ordinance’s enactment process, each and every governmental interest meant to be furthered by the provisions of Floyd County Ordinance 2006-002A, how such interests are furthered by the regulations, and the origin, timing, and authenticity of all materials the County relied upon for enactment of said ordinance. Id. at 665.

The county objected to this 30(b)(6) designation on numerous grounds. The court concluded that the information sought was relevant to the claims at issue and denied the defendant’s motion for protective order.


in Fidelity Management & Research Co. v. Actuate Corp., 275 F.R.D. 63 (D. Mass. 2011), the court considered the plaintiff’s 30(b)(6) notice, through which it sought to discover the facts on which the defendant’s affirmative defenses were based. The court considered the issue of work product in the context of 30(b)(6) discovery directed at a defendant’s claims for damages and affirmative defenses. The court converted the plaintiff’s 30(b)(6) deposition notice into a deposition on written questions on its own motion. Id. at 64.



A Rule 30(b)(6) deponent's testimony represents the knowledge and opinions not just of the individual deponent, but of the governmental or business entity itself. n97 The testimony represents the entity's "position" on the topics in the Rule 30(b)(6) deposition notice. In effect, the deponent is speaking for the entity, presenting the entity's position on the listed topics, including for instance the entity's interpretation of events or documents. n98 Generally, inquiry into an entity's legal position is appropriate in a Rule 30(b)(6) deposition. n99 "The Rule aims to prevent a corporate defendant from thwarting inquiries during discovery, then staging an ambush during a later phase of the case." n100
n97 Canal Barge, slip op. at *1; Calzaturficio, 201 F.R.D. at 37; Smithkline Beecham Corp., slip op. at *9; Taylor, 166 F.R.D. at 361.
n98 Canal Barge, slip op. at *1; Smithkline Beecham Corp., slip op. at *9; Taylor, 166 F.R.D. at 361.
n99 Canal Barge, slip op. at *2.
n100 Rainey, 26 F. Supp.2d at 95; see also Prokosch, 193 F.R.D. at 639 ("Any other interpretation of the Rule would allow the responding corporation to 'sandbag' the depositional process by 'conducting a half-hearted inquiry before the deposition but a thorough and vigorous one before the trial.'"); Taylor, 166 F.R.D. at 362.

Subjective beliefs and opinions are within the permissible scope of 30(b)(6) topics:

From Taza Systems v. Taza, 2012 U.S. Dist. LEXIS 156339 (WD Pa 2012):

Rule 30(b)(6), contrary to common belief, does not require a corporate party to identify the person "most knowledgeable" about a topic. Rather, the organizational entity has the duty to identify a witness to testify on its behalf and to prepare that witness to state the organization's position, knowledge, subjective beliefs, and opinions on identified topics. Harris v. New Jersey, 259 F.R.D. 89, 92 (D.N.J. 2007); State Farm Mutual Auto. Insur. Co. v. New Horizon, Inc., 250 F.R.D. 203, 216 (E.D. Pa. 2008); United States v. Taylor, 166 F.R.D. 356, 361-62 (M.D.N.C. 1996) (cited with approval in Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 303-04 (3d Cir. 2000)).

One notes that the list includes knowledge, subjective beliefs, and opinions, and the scope is NOT limited to first hand knowledge of facts.

As to Monell claims

It is understood that discovery can be detailed, rather than simple:

from Jewells v. Casner, 2015 U.S. Dist. LEXIS 156627 (ED NY 2015)

The court acknowledges that Monell claims can often involve onerous discovery demands. See Carr v. City of N. Chicago, 908 F. Supp. 2d 926, 933 (N.D. Ill. 2012) [*12] (recognizing that Monell discovery "can add significant time, effort, and complications to the discovery process" (internal quotation marks and citation omitted)). But the information covered in the Rule 30(b)(6) Notice at issue here - considering also the magistrate judge's limitations - is relevant to the plaintiff's claims.

Information on policy and practice can be sought via 30(b)(6):

from Walden v. City of Chicago, 2007 U.S. Dist. LEXIS 7400 (ND Ill 2015)

In connection with the latter claim, plaintiff served a 30(b)(6) Notice of Deposition on the City, requesting that the City produce a knowledgeable witness to testify to the subject areas relevant to plaintiffs policy and practice claim. The City does not contest that the 30(b)(6) notice ("notice") was proper.
The subject matters contained in the notice include, for example:
. Any investigation, evaluation, report, findings, analysis, or conclusions done or made

Examples of 30(b)(6) witnesses in 42 USC 1983 cases:

2015 U.S. Dist. LEXIS 148344
2014 U.S. Dist. LEXIS 95987
2014 U.S. Dist. LEXIS 65835
62 F. Supp. 3d 1049 (N.D. Cal. 2013)
977 F. Supp. 2d 738 (E.D. Mich. 2013)
957 F. Supp. 2d 442 (S.D. NY 2013)
2012 U.S. Dist. LEXIS 88079

Refusing to produce a 30(b)(6) witness is inappropriate:

On the other hand, rather than simply saying that "Philips cannot provide a witness on this topic as written," Philips could (and should) have responded that "Philips will produce a witness to testify [description]." If ZLC was not satisfied [*15] with that description, ZLC could have proposed an alternative.




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