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The Law Of Organizational DepositionsIMPORTANT NOTICE: This article is provided solely for research and archival purposes. MCLE self-study credit is no longer available. Even if you follow the instructions and submit payment you will not be granted MCLE self-study credit. Please note that low-cost MCLE is provided by the California Lawyers Association, pursuant to Business and Professions Code section 6056. Federal and state rules govern who can testify for an organization and about what By Joshua J. Pollack and Joseph K. Wright
You represent a company embroiled in a dispute over a contract that was entered into 15 years ago. Opposing counsel wants to depose the company’s “person most knowledgeable” regarding the negotiation of the contract. Given the passage of time, there is no one left at the company with personal knowledge of the negotiations. Who will your deponent be? You represent another company that has been sued for fraud. You spend days preparing a junior-level employee to testify as the company’s deponent. Are the matters that you discussed, and even the fact that you had those discussions, privileged? This article surveys the law of organizational depositions, focusing on Federal Rule of Civil Procedure 30(b)(6). It also addresses how organizations should deal with scenarios such as the ones described above: (1) what to do when no person currently connected to the organization has sufficient personal knowledge to testify for the organization, and (2) when can an organization assert privilege regarding the manner and content of its deponent’s preparation to testify. Although the text of FRCP 30(b)(6) and its California state counterpart, Code of Civil Procedure §2025.230, differ, both rules apply the same three basic requirements for depositions of an organization: (1) the deposing party must describe the subjects to be covered with “reasonable particularity,” (2) the organization must designate one or more representatives to testify, and (3) the representatives must testify to matters that are known or reasonably available to the organization. Reasonable particularity FRCP 30(b)(6) and CCP 2025.230 both require that a deposition notice state the topics to be covered with “reasonable particularity.” Courts have disallowed FRCP 30(b)(6) notices where the deposing party indicated that the deposition would “include but not be limited to” the topics identified in the notice. Reed v. Bennett, 193 F.R.D. 689, 692 (D.Kan. 2000). Such notices are faulty because they do not limit the subject matter for which the organization must prepare. The most significant split in authority surrounding FRCP 30(b)(6) concerns whether the subjects identified in the notice limit the scope of the deposing party’s examination. One court has held that the purpose and procedures of the rule do imply such a limitation. Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727, 729 (D.Mass. 1985). The majority rule, though, reasons that without any built-in limitation, FRCP 30(b)(6) depositions are only limited by the broad relevance and privilege provisions of FRCP 26(b). See, e.g., King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). Questions outside the scope of the deposition notice are fair game, but witnesses need only answer such questions to the extent of their personal knowledge and do not bind the organization with their answers. Id.; see also Detoy v. City & County of San Francisco, 196 F.R.D. 362, 366-67 (N.D. Cal. 2000). Within the scope of the deposition notice, witnesses speak on behalf of the organization, and their answers bind the organization to the same extent that individuals would be bound to their own deposition answers. For example, if the FRCP 30(b)(6) designee claims to have no knowledge about a subject within the scope of the deposition notice, several courts have held that the organization cannot thereafter present any evidence on the subject at the summary judgment stage or at trial. See, e.g., U.S. v. Taylor, 166 F.R.D. 356, 359-63 (M.D.N.C. 1996); Rainey v. American Forest & Paper Ass’n. Inc., 26 F. Supp. 2d 82, 94-95 (D.D.C. 1998). Unless the organization promptly designates an additional representative for deposition, the organization may not later assert that it actually had knowledge on the subject matter in question. Designating representatives FRCP 30(b)(6) allows an organization to designate as its deponent anyone who consents to testify. CCP 2025.230 allows an organization to designate “those of its officers, directors, managing agents, employees or agents who are most qualified to testify on its behalf.” No case law has yet determined whether the California rule prohibits the designation of outsiders, or if they can become agents for the limited purpose of testifying. An organization might want to designate an outsider for several reasons. If the events in question happened years earlier, a former employee or officer might be the most appropriate person to testify. Outside counsel may also be the most knowledgeable person on the subject matter, and designating them is a risky but legally acceptable tactic. In any case, organizations cannot refuse to make any designation at all by alleging that any potential deponents are outside the organization’s direction and control. Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146-47 (10th Cir. 2007). Thus in some cases, organizations will have no choice but to designate an outsider. No matter who the organization designates, FRCP 30(b)(6) requires that the organization must fully educate that person to testify. Courts have regularly sanctioned companies that produced witnesses with some personal knowledge but no special preparation. See, e.g., Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 F.R.D. 33 (D. Mass. 2001). In Calzaturficio, two brothers who took over their father’s shoe business were deposed as FRCP 30(b)(6) witnesses in a contract dispute with a manufacturer. When asked if they spoke on behalf of the company, they said they could only represent what they knew at the time, and their counsel asserted that they had no need to educate themselves. The court rejected the brothers’ position as “quite simply wrong.” Although documents produced in discovery may have included all of the relevant facts, without an effective FRCP 30(b)(6) deposition the plaintiffs would be left “without much knowledge about what the Fabiano company’s position would be at trial as to many topics that are crucial to the instant litigation.” Id. at 37. FRCP 30(b)(6) depositions do not just establish facts, they establish an organization’s positions on issues in the litigation. The designee must testify about the organization’s subjective beliefs and opinions and its interpretation of documents and events, rather than merely the content and facts themselves. U.S. v. Taylor, 166 F.R.D. at 361. As a result, the duty to educate includes reviewing the deposition testimony of other fact witnesses so that the deponent may assert the corporate position in light of the prior testimony. The flipside of the duty to educate a FRCP 30(b)(6) deponent is that organizations cannot be required to produce a designee with direct, personal knowledge of the matters on which they testify. In one unusual case, an assistant store manager (Sanders) accused his Circle K store manager (Edmonds) of sexual harassment. In Sanders’ FRCP 30(b)(6) deposition notice, he asked Circle K to produce a designee to testify to “the events that occurred on June 15, 1990, at the Circle K located at Thirty-sixth St. and Indian School Rd. in Phoenix, between the hours of 10 p.m. and 12 a.m., June 16, 1990, involving Clayton Sanders and Richard Edmonds.” Sanders v. Circle K Corp., 137 F.R.D. 292, 293 (D. Ariz. 1991). Sanders did this to try to force Circle K to designate Edmonds. Instead, Circle K produced a human resources manager. Sanders moved to compel Edmonds’ designation, claiming Circle K inappropriately designated the HR manager because he had no personal knowledge of the events in question. The court denied the motion and sanctioned Sanders’ attorney, holding that Circle K could not be required to designate someone who lacked authority to speak for the corporation, and could not be required to choose a designee with interests diametrically opposed to its own. Id. at 294. The remedies for failing to properly designate or sufficiently educate a FRCP 30(b)(6) witness range from a “go try again” approach, to the severe sanction of deeming all of the deposing party’s allegations conclusively proven. The Ninth Circuit endorsed the latter penalty in a case where the two connected defendant corporations allowed a deposition date to pass without naming a FRCP 30(b)(6) designee, rescheduled only to designate an officer who invoked the Fifth Amendment and refused to answer any relevant questions, provided merely a list of people who would not testify, and only then filed for a protective order. CFTC v. Noble Metals Int’l, 67 F.3d 766, 769-70 (9th Cir. 1995). Severe sanctions are rare and generally are not ordered for partial failures to comply with a FRCP 30(b)(6) notice. In one case, the FDIC played “hide the ball” with relevant information, gave inexperienced employees limited sets of material to review in preparation for their depositions, and claimed that those deponents spoke only for their “investigative units” and not for the agency as a whole. FDIC v. Butcher, 116 F.R.D. 196, 199-201 (E.D. Tenn. 1986). The court ordered the FDIC to redesignate witnesses who would be prepared to testify for the entire organization, but did not impose any further sanctions. In some cases, other forms of discovery may be the remedy for an imperfect response to a FRCP 30(b)(6) deposition notice. In one case involving 25-year-old facts, the court stated that even the best-prepared deponent could not be expected to remember everything and allowed additional document production and interrogatories to fill in the gaps. Barron v. Caterpillar, Inc., 168 F.R.D. 175, 177-78 (E.D. Pa. 1996). Reasonably available or known to the organization Clear case law has not emerged regarding the question of what is “known or reasonably available” to the organization. Some information necessarily falls outside of the limits of organizational knowledge. One court has held that while the designee must give complete, knowledgeable answers that bind the organization, the organization’s obligations “obviously cease” where it does not have knowledge with which to prepare the witness. Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 76 (D. Neb. 1995). “Known” is generally defined as records and information held by the organization’s employees. The meaning of “reasonably available” is more open to interpretation. One court held that it does not include information held solely by former employees. Abramson v. Florida Gas Transmission Co., 908 F.Supp. 1376, 1382 (E.D. La. 1995). The more widely held view, however, is that information “reasonably available” to the organization includes knowledge held by former employees, even if they are the only source. Not uncommonly, “a corporation indicates that it no longer employs individuals who have memory of a distant event or that such individuals are deceased.” U.S. v. Taylor, 166 F.R.D. at 361. In such a situation, the organization must still prepare its designee “to the extent matters are reasonably available, whether from documents, past employees or other sources.” Id. Privilege The question often arises whether an attorney-designee or a designee who has been prepared by the organization’s attorneys can assert the attorney-client privilege or attorney work product doctrine. Courts have shown little sympathy for attorney-client privilege arguments in this context. Work product assertions have fared somewhat better. The issue of an attorney-designee has not been adjudicated directly in the federal courts. However, in West Virginia, a state that has borrowed FRCP 30(b)(6) for its own corporate deposition rule, an organization that designates an attorney as its deponent waives the attorney-client privilege and the work product doctrine for the topics set forth in the deposition notice. State ex. rel. United Hosp. Ctr., Inc. v. Bedell, 484 S.E.2d 199, 216 (W.Va. 1997). This makes sense in that the attorney designee speaks for the organization; otherwise, every organization would simply designate counsel as its deponent, defeating the purpose of the rule. As with witness testimony, an organization producing a FRCP 30(b)(6) deponent cannot hide factual information behind the attorney-client privilege simply because the information was conveyed to the witness by an attorney. Protective Nat’l Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 283 (D. Neb. 1989). Courts also have allowed some amount of questioning meant to elicit the fact that the deponent was prepared by counsel to testify. How far the deposing counsel can probe communications between counsel and a FRCP 30(b)(6) designee remains an open question. All courts addressing the question of when the work product doctrine applies to potential FRCP 30(b)(6) testimony have held that factual information conveyed to a witness by an attorney is not protected, but the attorney’s mental impressions, conclusions, opinions and legal theories (“opinion work product”) are protected. There is a split of authority, however, regarding whether asking a witness about the existence or arrangement of underlying documents might reveal opinion work product in and of itself. Compare Security Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. 29, 33-34 (D.Conn. 2003) (arrangement of documents not protected) to SEC v. Morelli, 143 F.R.D. 42, 47 (S.D.N.Y. 1992) (arrangement protected).
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