Posted on: April 04, 2014in Blog
5 Tips for An Effective 30(b)(6) Deposition
It’s not difficult to imagine a discovery scenario where your adversary claims they have diligently fulfilled their evidentiary obligations and that the small handful of documents they produced to you comprises the true universe of relevant, non-privileged information… but you don’t believe them. With the advent of electronic discovery and the growing array of nooks and crannies in which ESI can hide, this situation is all too familiar. Little changed since 1971, Federal Rule of Civil Procedure 30(b)(6) gives counsel an opportunity to depose one or more witnesses that represent the adversary from a knowledge or managerial position. As the modern litigator becomes more familiar with corporate information technology systems, 30(b)(6) depositions are becoming more frequent and more powerful as a tool to get to the bottom of contentious e-discovery issues.
Here are 5 tips to make the most of your 30(b)(6) opportunity:
1. “Don’t ask a question you don’t already know the answer to” may not apply.
This rule of thumb for trial attorneys is not prudent in the more casual 30(b)(6) environment. The goal here is not necessarily to incriminate the witness, but to uncover information about policies, procedures, and actions taken during the discovery phase. Open-ended questions may be appropriate.
2. Remember that the witness represents the company, not himself or herself.
In fact, the deponent need not have first-hand knowledge of the deposition topics, can use any corporate resources available to gather information to prepare for the deposition, and may not have any technology experience at all. However, in some jurisdictions, the witness’s testimony can legally bind the corporation, partnership, or association.
3. Keep in mind that the 30(b)(6) designee is both a fact witness and a provider of opinion.
They can provide factual information about retention policies, IT operating procedures, steps taken toward ESI preservation, and the like. But, they can also provide their opinion about corporate culture and attitudes, to what extent policies and procedures are followed, or whether the policies were appropriate in the first place. Take advantage of the potentially wide scope of the dialog.
4. The use of evidence gleaned at 30(b)(6) depositions at trial is becoming more common in the age of ESI spoliation and hide-the-football gamesmanship.
Although introducing prior 30(b)(6) testimony as evidence at trial is already commonplace, questions arise as to whether it is permitted, or even appropriate, to call a 30(b)(6) witness to provide live testimony at trial because, at the time of the deposition, he or she was acting as a representative of the corporation and not as a fact or expert witness with personal knowledge of the topics. You may only get one shot at a 30(b)(6) deposition, so it’s a great idea to be thorough the first time around.
5. Take Judge Peck’s advice and “bring your geek to court.”
When discovery itself becomes the topic for litigation, it may be helpful to have an experienced e-discovery expert at counsel’s side to feed questions and interpret responses. If a deponent mentions that they recently upgraded their e-mail system, a quick hand-written note from your ESI expert telling you to ask if a disaster recovery backup of the old system was made, whether locally-stored PST’s were imported into the new platform, and if any steps were taken to preserve terminated employees’ mailboxes may just come in handy.
Recent Example of an Effective 30(b)(6) Deposition
For a recent example of an effective 30(b)(6) deposition in a game of hide-the-football by the defense, consider Peerless Industries, Inc. v. Crimson AV, LLC (N.D. Ill. Jan. 8, 2013). The defendant’s designated 30(b)(6) witness was clearly not prepared to provide information around ESI preservations efforts, computer systems in use, custodian information, or whether any custodians were actually contacted in light of the legal matter at hand. Plaintiffs were able to take advantage of the lack of good faith effort and were awarded costs associated with their motion. The court further ordered defendants to pony up the additional documents or prove that their discovery obligations have indeed been satisfied.
D4 has helped many clients navigate the 30(b)(6) deposition process by preparing corporate witnesses and providing eDiscovery experts to assist with questioning of the adversary’s designee.
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