CAN I GET A WITNESS? 30(b)(6) overview,
plus pitfalls, practical tips and consequences
by David E. Cannella1
Although the Supreme Court has recognized that corporations are people, 2 the
fact is that a corporation can only testify through designated corporate representatives.
Federal Rule of Civil Procedure 30(b)(6)(“Rule 30(b)(6)”) is the rule by which
corporations are deposed. Under Rule 30(b)(6), a party seeking testimony from a
corporation designates topics on which it seeks deposition testimony. The corporation
designates a representative speaks on its behalf to address the designated topics. The
SAC program to be presented on April 16, 2015 will cover Rule 30(b)(6) and address
legal and practical issues that arise, such as picking the right witness, designated topics
that are objectionable, the duty to properly prepare a witness, the consequences of
failing to prepare a witness, and other practical considerations.
I.
OVERVIEW
Rule 30(b)(6) provides:
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
Fed. R. Civ. P. 30(b)(6)
Breaking Down the Rule
A.
The Deponent is the Corporation;
B.
The Topics are described with reasonable particularity;
C.
Advise as to the matters for each person so designated;
and/but
D.
the Rule does not preclude taking a deposition by any other
procedure.
A.
1
2
The Deponent is the Corporation
Shareholder, Carlton Fields Jorden Burt.
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
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As many courts have observed:
The designated witness is “speaking for the corporation,” and this
testimony must be distinguished from that of a “mere corporate
employee” whose deposition is not considered that of the
corporation and whose presence must be obtained by subpoena.
8A Wright, Miller & Marcus § 2103, at 36–37. “Obviously it is not
literally possible to take the deposition of a corporation; instead,
when a corporation is involved, the information sought must be
obtained from natural persons who can speak for the corporation.”
8A Wright, Miller & Marcus, § 2103, at 30. The corporation
appears vicariously through its designee. Resolution Trust Corp. v.
Southern Union Co., 985 F.2d 196, 197 (5th Cir.1993).
U.S. v. Taylor, 166 F.R.D. 356 (M.D. N.C. 1996)
The goals served by Rule 30(b)(6) are as follows:
In 1970, Congress substantively amended Rule 30(b)(6) to place
the burden on the organizational entity to designate the appropriate
representative(s) to testify on its behalf. See Fed.R.Civ.P. 30(b)(6)
advisory committee's note. This amendment serves three useful
purposes. See id. First, it reduces the difficulties experienced
by the party requesting the deposition in determining whether
a particular organizational employee was a “managing agent.”
Id. Second, it curbs the “bandying” by which various
organizational officers or agents, while being deposed,
disclaim knowledge of facts clearly known by some other
officer or agent of the organization. Id.; see also Prokosch, 193
F.R.D. at 638 (“Since a corporation can only act through its
employees, directors and agents, the potential thrives for an
inquiring party to be bandied, from one corporate representative to
another, vainly searching for a deponent who is able to provide a
response which would be binding upon that corporation.”). Finally,
it protects the organization by eliminating unnecessary and
unproductive depositions of employees who have no
knowledge of the topics at issue. See Fed.R.Civ.P. 30(b)(6)
advisory committee's note; see also Prokosch, 193 F.R.D. at 638
(“On the other hand, a corporation should not be confronted with a
seemingly endless sequence of depositions which necessarily
interfere with the capacity of its officers and employees to properly
discharge their employment duties, and which impose substantial
financial costs.”) (additional citations omitted); Protective Nat. Ins.
Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278
(D.Neb.1989) (explaining the rationale behind the 1970
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amendment) (citing Cates v. LTV Aerospace Corp., 480 F.2d 620,
623 (5th Cir.1973)).
Murphy v. Kmart Corp., 255 F.R.D. 497, 504 (D. S.D. 2009)(emphasis added.
It is ultimately up to the corporation to designate its Rule 30(b)(6) witness. See
Fed. R. Civ.P. 30(b)(6); Resolution Trust Corp. v. S. Union Co., Inc., 985 F.2d 196, 197
(5th Cir. 1993); Booker v. Massachusetts Dept. of Public Health, 246 F.R.D. 387, 388 (D.
Mass. 2007). The party seeking the deposition may not impose his belief on the
corporation as to whom the corporation should designate as its 30(b)(6) witness. Id.;
Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 17 (1st Cir. 2000)(denied
motion for sanctions because the party seeking the deposition testimony believed that
the corporation should have designated a specific individual witness.)
B.
Topics Must Be Designated With Reasonable Particularity
Rule 30(b)(6) permits a corporate deponent to designate one or more persons to
testify on its behalf, provided that the deposing party “designate[s] with reasonable
particularity the matters on which examination is requested.”
The topics must be appropriately and reasonably designated to allow the
corporate deponent to identify the appropriate persons to testify. Louisiana Pacific
Corp. v. Money Market 1 Institutional Inv. Dealer, 285 F.R.D. 481, 486 (N.D. Cal. 2012).
“However, the ‘reasonable particularity’ requirement of Rule 30(b)(6) cannot be used to
limit what is asked of the designated witness at a deposition.” UniRAM Technology, Inc.
v. Monolithic Sys. Tech., Inc., No. C 04–1268 VRW (MEJ), 2007 WL 915225, at *2
(N.D.Cal. Mar. 23, 2007) (citing Detoy v. City and County of San Francisco, 196 F.R.D.
362, 366–67 (N.D.Cal.2000)). “The 30(b)(6) notice establishes the minimum about
which the witness must be prepared to testify, not the maximum.” Id. (citing Detoy, 196
F.R.D. at 366–67).
C.
Improper Topics
The failure to comply with the requirement under Rule 30(b)(6) to designate the
matters for the deposition with “reasonable particularity” renders the deposition notice
invalid. See Chiquita Int’l Ltd. v. Fresh Del Monte Produce, 705 So. 2d 112, 113 (Fla.
3d DCA 1998) (party “failing to designate with reasonable particularity the matters on
which examination was being requested . . . failed to comply with” the Rule).
Certain areas of inquiry are inappropriate for a corporate representative
deposition under Rule 30(b)(6) including the following:

Subjects unrelated to the subject matter or claims of the case.

Discovery responses. See SmithKline Beecham Corp. v. Apotex Corp.,
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No. 98 C 3952, 2000 WL 116082, *9-*10 (N.D. Ill. Jan. 24, 2000).3

Defenses as pleaded or the factual basis thereof. See In re Indep. Serv.
Orgs. Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996).4

Information Obtainable From Other Sources, e.g. a request for production
of documents.5
If an entity believes that the areas of inquiry designated in a notice are inappropriate, the
entity’s remedy is to object and move for a protective order. King v. Pratt & Whitney, 161 F.R.D.
475, 476 (S.D. Fla. 1995); Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D.
697, 700 (S.D. Fla. 1999).
4.
Questions Outside of the Scope of the Notice
The majority of jurisdictions have found that a corporate representative may be
asked questions outside the scope of the designated topics. See Bracco v. Amersham,
2005 WL 6714281 (D. N.J. 2005), King v. Pratt & Whitner, 161 F.R.D. 475, 476 (S.D.
Fla. 1995); (but see Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 730 (D. Mass.
3
See SmithKline Beecham Corp., 2000 WL 116082 at *9-*10 (refusing to force a party to
designate a witness to testify regarding interrogatory and request to produce responses because doing so
improperly forces the party to “muster all of its factual evidence” regarding the responses and “improperly
trespasses into areas of work product and attorney-client privilege.”); see also McGarrah v. Bayfront
Med. Ctr., Inc., 889 So. 2d 923, 926 (Fla. 2d DCA 2004) (discussing long-standing protections offered to
work product and privileged material under Florida law and noting the “heightened protection” provided to
“the mental impressions of an attorney”); see also Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th
Cir. 1986) (addressing whether counsel’s strategy in deciding what to collect and produce in litigation is
protected under the work-product doctrine and holding that “. . . when counsel has engaged in a process
of selecting and compiling documents in preparation for litigation, the mere acknowledgement of the
existence of those documents would reveal counsel’s mental impressions, which are protected as work
product.)”.
4
A party cannot force another party to produce a representative to testify about the factual basis
of defenses. See Krasney v. Nationwide Mut. Ins. Co., No. 3:06 CV 1164 (JBA), 2007 WL 4365677, *3-*4
(D. Conn. Dec. 11, 2007) (granting motion for protective order regarding requested designation of witness
to testify about party’s “defenses”); SmithKline Beecham Corp., 2000 WL 116082 at *10 (refusing to force
party to designate witness to testify about “factual basis” of its claim); In re Indep. Serv. Orgs., 168 F.R.D.
at 654 (granting motion for protective order regarding requested designation of “corporate witness to
testify about facts supporting numerous paragraphs of [the party’s] denials and affirmative defenses”).
Northup v. Acken, 865 So. 2d 1267, 1272 (Fla. 2004) (“The overriding touchstone in this area of civil
discovery is that an attorney may not be compelled to disclose the mental impressions resulting from his
or her investigations, labor, or legal analysis unless the product of such investigation itself is reasonably
expected or intended to be presented to the court or before a jury at trial. Only at such time as the
attorney should reasonably ascertain in good faith that the material may be used or disclosed at trial is he
or she expected to reveal it to the opposing party.”).
5
See generally SmithKline Beecham Corp., 2000 WL 116082 at *9-*10 (corporate representative
deposition unduly burdensome, duplicative, and inefficient when party could otherwise obtain the
requested information through less intrusive means).
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1985) for an opposite holding)6. Counsel for the deponent should note in the record that
a question falls outside of the Notice and that the deponent is testifying from personal
knowledge
II.
PREPARATION REQUIRED
The duty to prepare a Rule 30(b)(6) witness goes beyond matters personally
known to the witness or to the matters in which the designated witness was personally
involved. Great American Ins. Co. of New York v. Vegas Const. Co., Inc., 251 F.R.D.
534 (D. Nev. 2008).
A Rule 30(b)(6) designee “is not simply testifying about matters within his or her
personal knowledge, but rather is speaking for the corporation about matters to which
the corporation has reasonable access.” State Farm Mut. Auto Ins. v. New Horizont,
Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008). If a designated witness is unable to answer
a question about a designated topic, then the tantamount to a “failure to appear” and
sanctions are warranted pursuant to Fed.R.Civ.P. 37. Id.
The deponent must give testimony that is “known or reasonably available” to the
corporation. This may require the deponent to meet with senior management and coworkers, to contact appropriate departments within the entity, to check with government
and regulatory officials, and even to contact predecessor employees. Bank of New
York v. Meridien Biao Bank Tanzania, Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997).
Thorough preparation is necessary. U.S. v. Taylor, 166 FRD 356, 363 (M.D. N.C. 1996).
"If entity does not possess knowledge of matters listed in subpoena so as to
prepare witness to give knowledgeable answers, its obligations under Fed. R. Civ. P.
30(b)(6) cease because rule requires testimony only as to 'matters known or reasonably
6
The Northern District of Iowa explained in American General Life Ins. v. Billard, 2010 WL 4367052
(N.D. Iowa October 28, 2010) that Paparelli, which limits the scope of the deposition to the noticed topics,
has not been followed elsewhere:
It would appear, however, that every court which has addressed this issue since Paparelli
has taken a different view. In King v. Pratt & Whitney, 161 F.R.D. 475 (S.D.Fla.1995), the
deponents at Rule 30(b)(6) depositions were asked questions that went beyond the
scope of the issues described in the Rule 30(b)(6) notices. The Court identified the issue
as “whether a deponent produced pursuant to a Rule 30(b)(6) notice may only be
questioned regarding issues described in the notice or may be questioned as broadly as
any other deponent.” Id. at 475. After noting that “[t]he answer is not clearly found on the
face of the Rules,” the Court rejected the holding in Paparelli and concluded that “the
general deposition rules govern (i.e., Fed.R.Civ.P.26(b)(1)), so that relevant questions
may be asked and no special protection is conferred on a deponent by virtue of the fact
that the deposition was noticed under 30(b)(6).” Id. at 476. The conclusion reached in
King has been unanimously accepted by courts addressing the issue since that time.
See, e.g., Philbrick v. Enom, Inc., 593 F.Supp.2d 352, 363 (D.N.H.2009); Detoy v. City
and County of San Francisco, 196 F.R.D. 362,366(N.D.Cal.2000); Cabot Corp. v.
Yamulla Enterprises, Inc., 194 F.R.D. 499 (M.D.Pa .2000); Overseas Private Inv. Corp. v.
Mandelbaum, 185 F.R.D. 67 (D.D.C.1999); Edison Corp. v. Town of Secaucus, 17 N.J.
Tax 178, 182 (1998).
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available to the organization.” Dravo Corp. v. Liberty Mut. Inc. Co., 164 F.R.D. 70, 76
(D. Neb. 1995).
If the deponent says “I don’t know” to a question relevant to a listed matter, the
deposing counsel should ascertain whether the entity after reasonable inquiry does not
know the answer, or whether the entity did not sufficiently educate the deponent. If the
entity does not know the answer after making diligent inquiry, it cannot be subject to
possible Rule 37 sanctions. Resolution Trust Corp. v. Southern Union Co., 985 F.2d
196, 197, (5th Cir. 1993); Black Horse Lane Assoc., LP v. Dow Chemical Corp., 228
F.3d 275 (3rd Cir. 2000).
Any relevant fact that the deponent learns from counsel for the entity is
discoverable in the deposition. Protective Nat’l Ins. Co. v. Commonwealth Ins. Co., 137
F.R.D. 267, 278 (D. Neb. 1989).7
It is not advisable to produce an attorney as a witness as there can be a waiver
of attorney/client privilege and the work product doctrine as to the matters specified.
State ex rel. United Hospital Center v. Bedell, 199 W.V. 319, 484 S.E.2d 199 (1997).
III.
BINDING EFFECT ON THE CORPORATION
While the testimony is generally regarded as “binding” on the entity, there is
some disagreement among various jurisdictions as to whether such testimony can be
contradicted at trial or in opposition to a motion for summary judgment. Some courts
have held that the testimony permanently binds the entity. Taylor, 166 F.R.D. at 360 363. Other courts have held that the testimony is only “evidentiary,” and that additional
evidence may explain or contradict the testimony, especially if the deposition is taken
early in the case. In re Puerto Rico Elec. Power Auth., 687 F.2d 501, 503 (1st Cir.
1982). A motion in limine can ask the court to limit the entity to the representations
made in the deposition. Evans v. Connecticut, 967 F. Supp. 673, 677 (D. Conn.1997).
Despite the binding nature of corporate representative testimony, such testimony
is not considered to be a judicial admission. Weiss v. Union Central Life Ins Co., 28
Fed. App’x 87, 89 (2nd Cir. 2002). There also circumstances where Rule 30(b)(6)
testimony can be contradicted by affidavits at the summary judgment stage 8 or at trial.9
Such trial testimony may be subject to impeachment.
IV.
APEX DEPOSITIONS
Courts have consistently prevented the deposition of a company’s highest level
American General Life Ins., 2010 WL 4367052 at *4.
7
However, deposition questions may not delve into counsel’s advice, mental impressions, or analysis.
Protective, 137 F.R.D. at 280.
8
State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 212-214 (E.D. Pa. 2008)(party
allowed to rely on documents that contradicted testimony)
9
AstenJohnson, Inc. v. Columbia Casualty Co., 562 F.3d 213, 229 n.9 (3d Cir. 2009).
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executives where (1) the subject of the deposition is only “remotely relevant” to the significant
issues in the case, and (2) the executive does not have “unique” personal knowledge that is
peculiar to the executive and cannot be obtained from other sources. See, e.g., Thomas v. Int’l
Business Machines, 48 F.3d 478 (10th Cir. 1995) (affirming protective order despite allegation
that CEO had authored policy relevant to discrimination claims in suit); Harris v. Computer
Asscs. Int’l, Inc., 204 F.R.D. 44, 46-47 (S.D.N.Y. 2001) (precluding deposition of executive who
“lacks personal knowledge of the facts that give rise to the disputed issues in this action” and
where subject of deposition “is only remotely relevant to the issue in the case”); Cantor v.
Equitable Life Assurance Society of the United States, 1998 WL 544962 (E.D. Pa. 1998)
(granting protective order to preclude deposition of former CEO of insurer); Hughes v. General
Motors Corp., 18 Fed. R. Serv. 2d (Callaghan) 1249 (S.D.N.Y. 1974) (precluding executive
deposition where information plaintiff sought was available from other sources); Baine v.
General Motors Corp. , 141 F.R.D. 332, 334-36 (M.D. Ala. 1991); Evans v. Allstate Ins. Co., 216
F.R.D. 515, 518-19 (N.D. Okla. 2003); Folwell v. Hernandez, 210 F.R.D. 169, 173-74
(M.D.N.C. 2002).
V.
LOCATION OF THE DEPOSITION
Courts have generally recognized a presumption that Rule 30(b)(6) depositions should
be taken at the corporation’s principal place of business. See In re Outsidewall Tire Litigation,
267 F.R.D. 466, 471-2 (E.D. Va. 2010). This presumption in the corporate context is owing to
the fact that a corporate defendant is subject to multiple depositions under Rule 30(b)(6). Id.
This presumption may be overcome, but only where there are circumstances that
distinguish the case from an ordinary civil case. See Salter v. Upjohn Co., 593 F.2d 649, 65152 (5th Cir. 1979). Such circumstances include instances in which the corporation has an office
in another state and the designated representative travels to that state frequently. See Afram
Export Corp. v. Metallurgki Halyps, S.A., 772 F.2d 1358, 1365-66 (7th Cir. 1985). Another
circumstance warranting deviation from the presumption arises where the governing law of the
defendant corporation’s principal place of business would prevent the deposition from occurring.
For example, where it would be illegal for an American lawyer to conduct a deposition in the
corporation’s principal place of business, cause was shown to conduct the deposition
elsewhere. See Fausto v. Credigy Svcs. Corp, 251 F.R.D. 427, 430-31 (N.D.Cal.2008). In
Fausto, the court found that good cause existed for the deposition of four officers of a Brazilian
corporation to take place in the United States because it is illegal for American lawyers to take
depositions in Brazil and, according the U.S. Department of State, “they do so at risk of
imprisonment.” Id.
An important caveat to this general presumption is for counsel to check the local rules of
the court in which the action is pending. For example, the United States District Court for the
Middle District of Florida in Local Rule 3.04(b) advises counsel “that a non-resident defendant
who intends to be present in person at trial may reasonably be deposed at least once in this
District either during the discovery stages of the case or within a week prior to trial as the
circumstances seem to suggest.”
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