Presenting a live 90-minute webinar with interactive Q&A

Defending Rule 30(b)(6) Corporate

Depositions: Responding to Deposition
Notices, Selecting and Preparing Witnesses
TUESDAY, SEPTEMBER 26, 2017

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

Today’s faculty features:

Michael R. Gordon, Founder and Partner, GordonLaw LLP, New York

Casey D. Laffey, Partner, Reed Smith LLP, New York

Andrew L. Morrison, Partner, Manatt Phelps & Phillips LLP, New York

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Defending Rule 30(b)(6)
Corporate Depositions:
Responding to Deposition
Notices, Selecting and
Preparing Witnesses

Presented by:

Casey Laffey, Partner, Reed Smith LLP

Andrew L. Morrison, Partner, Manatt, Phelps

& Phillips LLP

Michael R. Gordon, Partner, GordonLaw

LLP
September 2017
Casey D. Laffey
Casey is a Partner in the New York office’s Complex Litigation Practice
Group and is a seasoned litigator and trial lawyer with extensive
knowledge in various areas of law.

His practice is devoted to a wide range of commercial and financial

services litigation. Casey has experience handling litigations in both
federal and state courts, as well as in complex arbitration proceedings.
Casey has extensive experience arguing complex trial court motions
and appeals, taking and defending complex depositions, and has
commenced and defended various actions seeking injunctive and
declaratory relief. Casey has also tried significant cases and
Partner
arbitrations through verdict or award.
Complex Litigation Group
New York: 212.549.0389 Recently honored by the New York Law Journal as a 2016 Rising Star,
claffey@reedsmith.com Casey practices in federal and state courts, including the New York
County Commercial Division and all four U.S. District Courts of New
Education: York, and the U.S. Court of Appeals for the Second Circuit. He has
St. John’s University School of
handled numerous appeals and has extensive experience with
Law, J.D., 2004 alternative dispute resolution, including arbitration and mediation.
State University of New York,
Binghamton, B.A., Dean’s List;
Academic Honors, 2000

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Reed Smith LLP
Agenda
1) Receiving and Responding to the 30(b)(6) Deposition
Notice
2) Selecting and Preparing the Rule 30(b)(6) Witness
3) Defending a Rule 30(b)(6) Deposition
4) Q&A

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Reed Smith LLP
Receiving and responding to the 30(b)(6)
deposition notice

8
Reed Smith LLP
Table of Contents
1) First steps on receiving the notice
2) Negotiating with opposing counsel
3) Filing objections
4) Seeking protective order
5) Serving reciprocal 30(b)(6) notice(s)

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Reed Smith LLP
First Steps
Understand the statutory basis
• The Rule: Fed. R. Civ. 30(b)(6)
In its notice or subpoena, a party may name as the deponent a public or private
corporation, a partnership, an association, a governmental agency, … 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. … 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.
• The goal: Fed. R. Civ. P. 1
To “secure the just, speedy, and inexpensive determination of every action and
proceeding” by eliminating the process of bandying. See Fed. R. Civ. P. 30(b)(6)
advisory committee’s notes, subdivision (b) (1970).

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Reed Smith LLP
First steps (contd.)
Understand how the Rule works
• The primary purpose of the Rule is to prevent the situation where a stream of
proffered witnesses lack sufficient knowledge about relevant topics;
• The Rule affords an organization being deposed considerable leeway in
designating its own witnesses to represent the organization;
• The organization being deposed may (and must) identify as many witnesses as
necessary to be responsive;
• The organization being deposed need not produce the most knowledgeable
person, only a witness able to testify “fully and non-evasively about the subjects”
of the deposition;
• The witness’s answers are binding on the organization; and
• The organization being deposed has the right to seek a protective order.
QBE Ins. Corp. v. Jorda Enter., Inc., 277 F.R.D. 676, 687-91 (S.D. Fla. 2012)

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Reed Smith LLP
First steps (contd.)
Understand what a proper 30(b)(6) notice looks like:
• Served in compliance with applicable discovery rules and orders
• Manner of service
• Timing of service
• Drafted in compliance with the Rule
• Names the organization to be deposed
• Sets forth a procedurally proper date and time of the deposition
• Identifies with “reasonable particularity” the topics that will be the
subject of the deposition

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Reed Smith LLP
First steps (contd.)
What the heck is reasonable particularity?
• There is no universal, black letter rule on 30(b)(6) reasonable
particularity
• Reasonable particularity is not a list of things “including but not limited
to”
• Reasonable particularity is not a list of “any matters relevant”
• Reasonable particularity is a “conscientious effort to focus” on discrete
subject areas that are substantively and temporally relevant to the
claims at issue. Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633 (D.
Minn. 2000)

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Reed Smith LLP
First steps (contd.)
What the heck is reasonable particularity?
• Number of topics not necessarily dispositive
• Heartland Surgical Specialty Hosp. v. Midwest Division, Inc., No. 05-2164-
MLB-DWD, 2007 WL 1054279, at *1 (D. Kan. Apr. 9, 2007) – 55 topics
allowed
• QBE Ins. Corp. v. Jorda Enterprises, Inc., supra – 47 topics allowed
• Banks v. Senate Sergeant-At-Arms, , 222 F.R.D. 7, 18 (D.D.C. 2004) – 35
topics allowed

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Reed Smith LLP
First response: consider negotiating with
opposing counsel
• Designated topics
• Consider the breadth and burden of the topic list
• Consider your own likely discovery demands
• Logistics
• Where will the deposition take place?
• When will the deposition take place?
• How long will/can the deposition last?
• How many witnesses will be necessary
• Are there privilege and/or confidentiality issues?
• Attorney-client and attorney work product
• Trade secret and other proprietary information
• Other

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Reed Smith LLP
Second response: objecting to the
30(b)(6) notice
Considerations
• Propriety of notice and its vulnerability to objections
• Reasonableness of objections
• Specificity of objections
• The long view: impact of objections on your own discovery demands
• Court’s rules regarding and approach to addressing discovery disputes
• Expense and value of litigating objections
• Necessity
• As predicate to discovery conference
• As predicate to protective order motion

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Reed Smith LLP
Third response: Protective order motion
• Considerations
• Impact of problematic 30(b)(6) testimony – binding on organization
• Expense of discovery litigation
• Delays caused by discovery litigation
• Failure to move timely and to seek interim relief can result in a
required attendance, as the motion itself is not self-executing
• Bases
• Procedural defects such as defective service or improper logistics
• Topic list violates rule of reasonable particularity
• Topic list imposes unreasonable burden (cost and/or resource
allocation and preparation time)

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Reed Smith LLP
Serving reciprocal 30(b)(6) notice
• Considerations
• Is it part of your discovery plan?
• Is it worth the expense?
• What Impact will the notice have on your adversary?
– Will it lead to negotiations that curb the scope of your
adversary’s demands?
– Will your adversary have a knowledgeable witness?

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Reed Smith LLP
Reed Smith is a global Founded in 1877, the firm represents leading international businesses, from Fortune 100
corporations to mid-market and emerging enterprises. Its lawyers provide litigation and other
relationship law firm with more dispute-resolution services in multi-jurisdictional and high-stakes matters, deliver regulatory
than 1,700 lawyers in 27 offices counsel, and execute the full range of strategic domestic and cross-border transactions.
Reed Smith is a preeminent advisor to industries including financial services, life sciences,
throughout the United States, health care, advertising, entertainment and media, shipping and transport, energy and
Europe, Asia and the Middle East. natural resources, real estate, manufacturing and technology, and education.

This document is not intended to provide legal advice to be used in a specific fact situation; the contents are for informational purposes only.
“Reed Smith” refers to Reed Smith LLP and related entities. © Reed Smith LLP 2016

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Reed Smith LLP
Preparing the Rule 30 (b)(6) Witness
Tougher Than You Think
Andrew L. Morrison
Manatt, Phelps & Phillips, LLP
New York, NY
Biography 21

Andrew L. Morrison Education

Partner St. John’s University School of Law, J.D., Dean’s List
Financial Services Group Scholar, 1987
New York: 212.790.4581 Brandeis University, B.A., cum laude with High Honors,
1984
amorrison@manatt.com

About

Andrew Morrison is a commercial litigator who specializes in Andrew practices in federal and state courts, including the New York
business disputes and securities litigation. As co-chair of the firm's County Commercial Division, Surrogate’s Court and Bankruptcy
financial services litigation and enforcement practice, he represents Court. He has handled numerous appeals and has extensive
clients across a wide range of industries, including real estate, experience with alternative dispute resolution, including arbitration
financial services, investment banking and management, energy and and mediation.
technology. Andrew has extensive experience handling partnership .
and shareholder disputes, fiduciary duty claims and crisis
management. Andrew has successfully defended many issuers,
board members, syndicators, funds and advisors against securities
fraud claims brought under both the ’33 Act and the ’34 Act in addition
to litigating contests for corporate control involving Williams Act
litigation and fiduciary duty challenges.

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
It’s the Beginning of Our Trip but Let’s Start by Unpacking 22

 Fed R. Civ. P. 30(b)(6) Provides:

– 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. *** The persons designated must testify about
information known or reasonably available to the organization.
 Party or Non-party
 Any type of entity
 Known or reasonably available
 Must testify
 Other persons who consent to testify
 One or more

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
What Is at Stake 23

 Testimony is binding on the company

 Company has an obligation to thoroughly prepare
 Sanctions are readily available where witness is not prepared
 All of the above encourages use of 30 (b)(6) notice

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
Factual Investigation 24

 Collect, review and organize documents by each noticed topic

 Identify individuals with knowledge about noticed topics
 Speak with these individuals

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
Documents 25

 Review Docs already produced

– If Non-party – issue litigation hold
 Review other pertinent documents which may have to be produced
– Rule 30 is a deposition notice and not a document demand but Rule 26 requests
usually require supplemental productions
 Be careful about creating documents

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
Selecting a Representative(s) 26

 Identify individuals from the Document Review

 Interview Individuals
 Identify Potential Deposition Candidates
– Experienced testifying
– Articulate
– Does not have to be person most knowledgeable
– Understands distinction between personal knowledge and knowledge of corporation
– Ability to retain information and handle grueling day of examination
 Try to keep it to One Witness
– 7 hour limit
– 2 reps gives party 14 hours of examination but still counts as one (1) against limit of
ten (10)

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
Duty to Educate 27

 The noticed corporation must engage in “due inquiry” including searching its
files and conducting interviews of its employees so that representative is
prepared and can answer fully and completely without evasiveness.
Mitsui v. Puerto Rico, 93 F. R.D. 62, 67 (D.P.R. 1981)
– “I don’t know” or “I don’t recall” can equate to failure to appear
– Can produce a former employee or even a paid consultant
 Privilege issues
 Credibility issues to the extent they receive compensation for testimony
– Start early: Do not wait until you receive 30(b)(6) notice but, instead, start preparing
at commencement of case

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
Be Prepared 28

 Corporate knowledge: Company records, prior depositions, interviews with

current or former employees. In re JDS Uniphase Corp. Securities Litig., 2007
WL 219857, *1 (N.D. Cal. Jan. 29, 2007) (“While a corporation is not relieved
from preparing its Rule 30(b)(6) designee to the extent matters are reasonably
available . . . it need not make extreme efforts to obtain all information possibly
relevant to the request.”)
– Documents used to refresh recollection are discoverable: FRE 612
– Choice of documents selected and organization of documents may be protected as
attorney work product

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
Be Prepared (cont’d) 29

 Use great care to not use privileged materials to prepare the witness
 Prepare witness for questioning outside of the scope of the notice
– Split whether notice is minimum scope or maximum scope
 Compare Paporelli v. Prudential Ins., 308 F. R.D. 727 (D. Mass. 1987) (disallowing questions
outside the scope of notice) with King v. Pratt & Whitney, 161 F. R.D. 472 (S.D. Fla. 1995) aff’d
without opinion 213 F. 3d 247 (11th Cir. 2000) (allowing questions outside the scope of notice)
 In New York: Eng-Hatcher v. Sprint Nextel Corp. 2008 WL 4104015, *4 (S.D.N.Y. Aug. 28,
2008) (“Rule 30(b)(6) establishes the minimum standard that the designated witness must
satisfy when answering questions.”)

 Prepare witness to testify not only to facts but also corporate beliefs, opinions
and contentions (Courts are split) Krasney v. Nationwide Mut. Ins. Co., 2007
WL 4365677, *2 (D. Conn. Dec. 11, 2007)

Preparing the Rule 30 (b)(6) Witness | Manatt, Phelps & Phillips, LLP
 Defending the 30(b)(6) deposition

What to do when the big day arrives …

Michael R. Gordon
GORDONLAW LLP

30
 Biography

After 30 years as a former prosecutor and Big Law litigator, Michael R.

Gordon, a former Co-Chair of the Litigation Department of a global
AmLaw 100 law firm, opened the doors of GordonLaw LLP in May 2017
to provide focused solutions to his clients’ business problems.
Some examples of Mike’s cases include serving as lead counsel for a
major foreign bank sued for billions of dollars in connection with the
bankruptcy of a failed telecom company, lead counsel in a case in which
MICHAEL R. GORDON he fended off a $100 million lender liability case against one of the five
Managing Partner largest U.S. banks, and lead counsel in a case in which he successfully
GORDONLAW LLP
51 Bedford Road, Suite 10 represented one of the world’s largest foreign defense contractors in a
Katonah, New York 10536 multi-million dollar dispute over production costs.
200 Park Ave., Suite 1700 Mike is a Fellow of the highly selective New York Bar Foundation, a
New York, New York 10166 United States District Court mediator, an active member of the American
www.gordonlawllp.com
Bar Association, and a member of the New York City Bar Association’s
mgordon@gordonlawllp.com Litigation Committee and Committee on Courts of Superior Jurisdiction,
which participates in the evaluation of judicial candidates.
D 914.232.9500
M 914.671.6873 Mike is a frequent speaker and writer on a variety of litigation topics.

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 At the Deposition – Table of Contents

• Be Prepared
• Binding Nature of Rule 30(b)(6) Testimony
• Make a Record
• What the Witness Did to Prepare
• Objections
• Questions Beyond the Scope
• When the Rule 30(b)(6) Deposition Is Also a Personal Knowledge
Deposition
• Direct Examination?
• Defending the Nonparty

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 At the Deposition – Be Prepared
• Know the local rules/practices
• Speaking objections. See FRCP 30(c); Compare Greer v. Mehiel, 2017 U.S. Dist. LEXIS 18969 *
(S.D.N.Y. Feb. 8, 2017) (“Objections as to the form of the question shall be made by opposing counsel
… who shall simply state, "Objection." with IPS Group v. Duncan Solutions, Inc., 2017 U.S. Dist. LEXIS
128239, 2017 WL 3457141 (S.D. Cal. Aug. 11, 2017) (“Suffice to say, as annoying and unprofessional
as it was, the Court cannot say that it frustrated the fair examination of the deponent.”)
• Communicating with witness during breaks. For a great illustration of the potential complexity
of the issue, see Eastman Kodak Co. v. Agfa-Gevaert N.V., 2006 U.S. Dist. LEXIS 36796 (W.D.N.Y. April
21, 2006), where a dual-purpose witness (expert and fact) had discussions with counsel during a
deposition break; the Court held as follows: “It is clear that Mr. Roberts was acting as a fact witness
during his deposition. Allowing Mr. Roberts to switch roles mid-deposition would create such a granular
standard that ascertaining the role of a dual witness would be virtually impossible. Furthermore, Mr.
Roberts was not being represented by Agfa at the deposition. Thus, all communications with Mr.
Roberts during the breaks in his deposition are discoverable. Agfa should produce a summary of any
factual information discussed with Mr. Roberts during the breaks in his deposition.
• Questions beyond the scope. See Detoy v. City & County of San Francisco, 196 F.R.D. 362, 2000 U.S. Dist.
LEXIS 13013, 48 Fed. R. Serv. 3d (Callaghan) 101 (N.D. Cal. July 19, 2000) for a good discussion of the
dilemma the questioner is in when faced with an “outside the scope” objection and refusal to testify (“ A
deposing party is thus left to choose between giving up its right to ask questions outside the designation or re-opening
the deposition at a different time under Rule 26(b)(1). This process is complicated by the limitation on depositions of
Federal Rule of Civil Procedure 30(a)(2)(A) of ten per party if local rules or court orders do not extend the allowable
number.”).
• Know the court’s phone number …
• but don’t threaten to use it, if you’re not willing to do so …
• Make sure your witness does not bring notes to the deposition
• other than a cheat sheet that has been drafted to be produced

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 At the Deposition –
Binding Nature of Rule 30(b)(6) Testimony
• Courts take different views regarding the binding nature of Rule 30(b)(6) testimony, although there
are not many courts that still treat 30(b)(6) testimony as judicial admissions immune to modification.
• small number of courts have held that Rule 30(b)(6) statements are judicial admissions, which
are conclusively binding
• may refuse to hear trial testimony that differs from deposition testimony, unless the party
“can prove that the information was not known or was inaccessible” at the time of the
deposition
• most courts hold that Rule 30(b)(6) statements are evidentiary admissions
• evidence at trial may explain or contradict a statement made at a Rule 30(b)(6)
deposition
• See In re E. I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., 2015 U.S. Dist. LEXIS 29928 (S.D. Ohio
Mar. 10, 2015) for a good discussion of the issue. Compare First Internet Bank of Indiana v. Lawyers
Title Ins. Co., 2009 U.S. Dist. LEXIS 59673, 2009 WL 2092782, at *4 (S.D. Ind. July 13, 2009) ("A Rule
30(b)(6) deposition produces evidence, not judicial admissions.") with (the minority view of) Rainey v.
American Forest & Paper Ass'n, 26 F. Supp. 2d 82, 94 (D.D.C. Oct. 19, 1998)

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 At the Deposition – Make a Record

• Set forth all stipulations on the record

• Even if your adversary hasn’t specifically agreed with the limiting of a
topic, make sure you get on the record the limitation you have imposed
• If there is a cheat sheet that addresses more than one topic,
produce it at the beginning of the deposition
• If the cheat sheet addresses a single topic, wait for that topic

35
 At the Deposition – What the Witness Did
to Prepare
• Witness should be ready to provide details
• Witness should be very, very wary about agreeing he/she could
have done more
• If the witness forgets part of his or her preparation, ask to
supplement after a break, or, if necessary, bring it out on direct
examination (proves the point that sometimes it is necessary to
ask questions of your own witness)

36
 At the Deposition – Objections

• Object for all the usual reasons and –

• Because the question is outside the scope
• Because the topic has been designated to another witness
• Because the question calls for a legal conclusion and not facts
• but many courts will allow the witness to be asked for the facts supporting allegations
or contentions. One Court put it this way:
Courts have split whether to allow parties to use 30(b)(6) depositions to explore facts underlying
legal claims and theories. Compare JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209 F.R.D. at 362
(denying discovery request seeking "defendants' mental impressions, conclusions, opinions, and legal
theory") … with EEOC v. Caesars Entm't, Inc., 237 F.R.D. 428, 432-34 (D. Nev. 2006)(denying
"defendant's request for a protective order to limit the scope of Rule 30(b)(6) deposition questioning
to preclude inquiry into the factual bases for defendant's asserted position statements and
affirmative defenses").” Radian Asset Assur., Inc. v. College of the Christian Bros. of N.M., 273 F.R.D.
689 *, 2011 U.S. Dist. LEXIS 65597 (D.N.M. May 24, 2011)

37
 At the Deposition –
Questions Beyond the Scope
• Most courts find this acceptable, but do not consider answers
binding on corporation
• Make sure both parties agree on the scope (and witness knows
too)
• If deposing attorney goes outside scope, make objection and
make a record
• Be careful about instructing not to answer, but so instruct and
seek a protective order if truly necessary

38
 At the Deposition –
When the Rule 30(b)(6) Deposition Is Also a
Personal Knowledge Deposition
• If deposition is both a Rule 30(b)(6) and a personal knowledge deposition:
• be careful that the record reflects on which basis the witness is
answering,
• although the distinction may not matter as the personal knowledge
answer may still be binding on the organization.
• But make sure the deposition notice properly indicated the dual nature of
the deposition. See Parrot, Inc. v. Nicestuff Distributing International,
Inc., No. 06-61231, 2009 U.S. Dist. LEXIS 8528, 2009 WL 197979, at *7
(S.D. Fla. Jan. 26, 2009) ("To depose the corporate representative in his
own capacity, the deposing party must notice the deposition of the
corporate representative in his personal capacity.").

39
 At the Deposition –
Direct Examination?
• Key question is whether this deposition is likely to be used at
trial
• May not be necessary, but prepare for it anyway
• Make sure the witness knows it may happen (and doesn’t mean
he/she did something wrong)
• and if the witness did get something wrong (and didn’t correct it
at the time), the direct exam is the best time to fix it

40
 At the Deposition –
Defending the Non-Party
• Preparation obligations theoretically the same, but
consequences of a lack of preparation are probably not as great
• However, now must prepare the witness for questions from both
sides
• Lower likelihood of need for direct examination, unless the
possibility exists that your client could be drawn further into the
matter

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Team Contacts

Casey Laffey Michael R. Gordon Andrew L. Morrison

Partner, Reed Smith LLP Managing Partner, GordonLaw LLP Partner, Manatt, Phelps & Phillips, LLP
New York New York New York
212-549-0389 914.232.9500 (212) 790-4581
claffey@reedsmith.com mgordon@gordonlawllp.com AMorrison@manatt.com

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