Avoiding Ethical Pitfalls in the
Deposition Process
Brant D. Kahler
BrownWinick
666 Grand Avenue, Suite 2000
Des Moines, IA 50309-2510
Telephone: 515-242-2430
Facsimile: 515-323-8530
E-mail: kahler@brownwinick.com
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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.
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“In its notice or subpoena…”
• Rule 30(b)(6) applies to party and nonparty entities.
• For party entities, a Rule 30(b)(6)
deposition is established through a Notice
of Deposition.
• For non-party entities, a Rule 30(b)(6)
deposition is established through a
Subpoena.
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“… a party may name as the deponent a public or
private corporation, a partnership, an association,
a governmental agency, or other entity…”
• Although only corporations, partnerships and
associations are listed, through the language “or
other entity,” Rule 30(b)(6) applies to all
recognized legal entities, including limited
liability companies, limited partnerships and
entity forms recognized in other countries.
• The phrase “governmental agency” has been
interpreted broadly to allow Rule 30(b)(6) to
apply to all forms of governmental entities and
agencies.
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“and must describe with reasonable
particularity the matters for examination.”
• The subject matters about which the deposing
party wishes to conduct the deposition must be
“described with reasonable particularity” in the
Notice of Deposition or Subpoena.
• If not:
– The deponent entity may designate a large number of
corporate representatives; or
– The deponent entity may move for a protective order
or to quash the subpoena to force the Notice of
Deposition or Subpoena to comply with Rule 30(b)(6).
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“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…”
• Officers and Directors:
– Generally easy to ascertain.
– Deposition testimony is binding on entity and
admissible for all allowed purposes at trial.
– Required to attend deposition in district where
litigation is pending, absent other agreement
by the parties.
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“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…”
• Managing Agents:
– Difficult to ascertain, and oftentimes point of contention between
parties.
– Factors:
• (1) whether the individual is vested with general powers allowing
him or her to exercise judgment and discretion in corporate matters;
• (2) whether the individual can be relied upon to give testimony, at
the request of the entity, in response to the demand of the
examining party;
• (3) whether any person or persons are employed by the entity in
positions of higher authority than the individual designated in the
area regarding which information is sought by the examination;
• (4) the general responsibilities of the individual respecting the
matters involved in the litigation; and
• (5) whether the individual can be expected to identify with the
interests of the entity.
– Otherwise treated in same manner as Officers and Directors.
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“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…”
• Other persons who consent to testify on behalf
of the entity:
– Absent a subpoena, can only be compelled to attend
deposition voluntarily.
– If subpoena becomes necessary, deposition must be
taken within 100 miles of the deponent’s “residence,
place of business or location where deponent was
served with subpoena.”
– Like Officers, Directors and Managing Agents,
testimony is binding on entity and may be used for all
admissible purposes at trial.
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“This paragraph (6) does not preclude a deposition
by any other procedure allowed by these rules.”
• Rule 30(b)(6) is not the sole method
available for deposing entity
representatives.
• If a particular person is not designated by
the deponent entity, any other entity
representative can be deposed through a
subpoena in accordance with the general
scope of allowable discovery and
depositions.
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Common Rule 30(b)(6) Issues:
1. Former entity representatives:
– Not governed by Rule 30(b)(6).
– Rule 30(b)(6) only applies to representatives employed by the
entity at the time the designation is made.
2. Deposition questions beyond the scope of the
designated subject matter areas:
– Such questions are generally allowed. See e.g., American
General Life Ins. Co. v. Billard, 2010 WL 4367052, *3-4 (N.D.
Iowa 2010).
– If attorney for the deponent entity wishes to object, deposition
should be terminated and attorney should immediately move for
a protective order.
– Objecting attorney should not allow the deposition to continue
and instruct the deponent to not answer certain questions. See
Fed. R. Civ. P. 30(c)(2). In that situation, the objecting attorney
will likely face sanctions. See Fed. R. Civ. P. 30(d)(2).
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Iowa R. Civ. P. 1.707(5)
• A notice or subpoena may name as the deponent a
public or private corporation or a partnership or
association or governmental agency and describe with
reasonable particularity the matters on which
examination is requested. In that event, the organization
so named shall designate one or more officers, directors,
or managing agents, or other persons who consent to
testify on its behalf, and may set forth, for each person
designated, the matters on which the witness will testify.
A subpoena shall advise a nonparty organization of its
duty to make such a designation. The persons so
designated shall testify as to matters known or
reasonably available to the organization. This rule does
not preclude taking a deposition by any other procedure
authorized in the rules in this chapter.
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The Ethics of Witness Preparation
• Preparation v. Coaching
– There is a fine line between preparing a witness for a
deposition to allow the witness to testify in an
accurate and articulate manner, and coaching a
witness to testify in a manner that is false, partially
false or that withholds the truth.
– The former is greatly encouraged and is oftentimes
necessary.
– The latter is unlawful and can lead to serious
consequences for the deponent and the preparing
attorney.
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Relevant Ethical Rules
• ABA Model Rule 1.1 Competence.
A lawyer shall provide competent
representation to a client. Competent
representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for
the representation.
– See also Iowa R. Prof. Con. 32:1.1.
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Relevant Ethical Rules
• ABA Model Rule 3.3 Candor Toward The Tribunal.
(a) A lawyer shall not knowingly: *** (3) offer
evidence that the lawyer knows to be false. If a
lawyer, the lawyer’s client, or a witness called by the
lawyer, has offered material evidence and the lawyer
comes to know of its falsity, the lawyer shall take
reasonable remedial measures, including, if necessary,
disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a
criminal matter, that the lawyer reasonably believes is
false.
– See also Iowa R. Prof. Con. 32:3.3(a)(3).
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Relevant Ethical Rules
• ABA Model Rule 3.4 Fairness To Opposing Party
And Counsel.
A lawyer shall not: *** (b) falsify evidence,
counsel or assist a witness to testify falsely,
or offer an inducement to a witness that is
prohibited by law; or *** (f) request a person
other than a client to refrain from voluntarily
giving relevant information to another
party…
– See also Iowa R. Prof. Con. 32:3.4(b) and (f).
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Witness Preparation “Do’s”:
• DO help the deponent understand the deposition
process, including an explanation that the deponent’s
testimony will be given under oath and subject to penalty
of perjury.
• DO explain the legal grounds and bases for the lawsuit.
• DO go through questions that the deponent will likely be
asked during the deposition.
• DO assist the deponent with recalling details of events
and familiarity with important documents.
• DO instruct the deponent to listen to questions carefully
and answer only the question being asked in as concise
a manner as is possible.
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Witness Preparation “Don’ts”:
• DON’T fail to adequately prepare a deponent for his or
her deposition.
• DON’T coach the deponent to be combative or evasive
during the deposition.
• DON’T improperly influence or attempt to modify the
deponent’s testimony to better support the deponent
entity’s overall position in the lawsuit.
• DON’T coach or ask the deponent to make false
statements during the deposition.
• DON’T coach or ask the deponent to withhold
responsive information to questions asked during the
deposition.
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After the Deposition Begins...
• There is a split of authority with regard to whether it is proper for the
deponent’s attorney to discuss the deponent’s testimony with the
deponent after the deposition begins.
• Some states, such as Alabama, Delaware, New Jersey, South
Carolina and Tennessee, prohibit all communication between the
deponent and the deponent’s lawyer during the pendency of the
deposition in their respective rules of civil procedure.
• Other states, such as Texas and Washington, prohibit such
communication during the deposition itself, but allow such
communication at breaks or recesses in their respective rules of civil
procedure.
• Additionally, in specific lawsuits, the presiding Judge or Magistrate
Judge may issue an order that limits the communication between
the deponent and the deponent’s lawyer during the pendency of the
deposition.
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After the Deposition Begins...
• In all other states, including Iowa, where the court has not ordered
otherwise, the only relevant authority is contained in Fed. R. Civ. P.
30:
– Fed. R. Civ. P. 30(c)(2) provides, in relevant part, that “An objection
must be stated concisely in a nonargumentative and nonsuggestive
manner. A person may instruct a deponent not to answer only when
necessary to preserve a privilege, to enforce a limitation ordered by the
court, or to present a motion under Rule 30(d)(3).”
– Fed. R. Civ. P. 30(d)(2) provides that “The court may impose an
appropriate sanction – including the reasonable expenses and
attorney’s fees incurred by any party – on a person who impedes,
delays, or frustrates the fair examination of the deponent.”
– See also Iowa R. Civ. P. 1.708(2).
• Additionally, the ethical rules discussed with regard to witness
preparation continue to apply.
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Questions?
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