Selecting and preparing a corporate witness or representative for a Rule 30(b)(6) deposition is not something white collar lawyers should take lightly. Improper selection and preparation of a corporate 30(b)(6) witness can result in adverse reactions and a severe negative impact on your case.
ADVERSE CONSEQUENCES OF INAPPROPRIATE AND UNEDUCATED 30(B)(6) WITNESSES:
- Unfavorable binding admissions that cannot be debarred from contrary positions at trial
- Privilege Waiver
- Sanction based on lack of good faith
- Sanction based on prejudice to opposing side
- Sanction based on disruption of the proceedings
- Sanction that includes awarding attorneys’ fees and costs
It is important to note that the 30(b)(6) witness is representing the knowledge of the corporation and not of herself. In other words, the corporation is answering indirectly via its Rule 30(b)(6) deposition by its designee. That being said, it is assumed that the designated witness chosen by the corporation is not giving a personal opinion. The 30(b)(6) witness is giving the corporation’s position on the topic, which includes the corporation’s knowledge of facts, and subjective opinions and beliefs.
The 30(b)(6) witness’s binding admissions are limited to the list of topics the requested party provided. However, the topics cannot be quasi legal arguments or a party’s contentions. Nor can the corporate 30(b)(6) witness be expected to articulate legal positions that should be done by the corporation’s white collar lawyers. According to the Rule, the topics must be of a “reasonable particularity,” that is, not general topics, but rather topics should be concerned with the details in a reasonable manner. Courts have ruled that topics in the deposition are not the end of inquiry but rather the start of inquiry. There is no limit in Rule 30 on the number of topics.
Corporations may choose to have different Rule 30(b)(6) witnesses to represent different deposition topics. A corporation may choose to have a single representative witness to answer on all topic areas, which would force the examining party into a single seven hour day to take the 30(b)(6) deposition. The downside of having a single 30(b)(6) witness is that there may be an inability to address the topics or the company’s complete story. The examining party can also apply to expand the length of time for deposition.
Having separate 30(b)(6) witness depositions can considerably expand time allowed as each 30(b)(6) witness can be subject to a separate one-day seven hour deposition on their respective topics.
LACK OF KNOWLEDGE BY A 30(B)(6) WITNESS
The deposing party can impose sanctions, bar the corporate party from introducing evidence at trial on a particular topic, and compel the company to produce additional corporate witnesses if there is a lack of knowledge by a 30(b)(6) designee. However, in order for deposing counsel to advantage these alternatives at trial they must make certain tactical actions such as filing pretrial and discovery motions.
When there is a lack of knowledge by a corporate witness the corporation is obliged to provide another 30(b)(6) witness. If the corporate witness makes a claim that she lacks knowledge, this can be considered an admission of no corporate knowledge or position on that topic by the examining lawyers. The opposing lawyers may then prevent the corporation from admitting evidence on that particular topic or query area of interest. Only when it can be proven that information was not readily available at the time of deposition can a position on that subject matter be entered at trial. Some courts have even ruled impeachment if the 30(b)(6) witness deposition is different from the trial testimony of the witness.
CAREFUL SELECTION AND PREPARATION OF A 30(B)(6) CORPORATE WITNESS
The facts are clear, white collar lawyers need to carefully select and prepare 30(b)(6) witnesses and must allow sufficient time to do so. Know that even the steps taken to prepare a corporate witness is discoverable. White collar lawyers have to be careful not to expose corporate witnesses to privileged documents. White collar lawyers should also not be the main source of information on facts. Witnesses can be prepared by review of relevant corporate documents, interviews with lower level employees, and contact with affiliates or subsidiaries. Corporates witnesses are also not required to have personal knowledge on the topics nor do they have to be employees. A Rule 30(b)(6) witness can be a former or current employee of any rank, or any person or entity outside of the company. The corporate witness is required to have “responsive knowledge.”
A Rule 30(b)(6) deposition requires top lawyers experienced in both the criminal and civil aspects of litigation and trials, such as the white collar lawyers from LibertyBell Law Group. At the core of not having a binding and damaging deposition is selecting and preparing the witness. Our best white collar lawyers and experts know how to successfully leverage a 30(b)(6) deposition and witnesses for a favorable end result.
