1. Rule 30(b)(6) Tips
2. Taking a Killer Deposition of a Corporation in Virginia
3. Rule 30(b)(6) specimen notice
4. Rule 30(b)(6) transmittal letter
DEPOSITION PRACTICE TIPS
by John Lowe
1) Use of 30(b)(6) depositions.
a) Rule 30(b)(6), Fed. R. Civ. P.
A party may in the party’s notice and in a subpoena 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 estify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
i) You don’t need to know who has the information before setting depositions.
ii) You should get the most knowledgeable witness on any given subject right away.
iii) The deposition testimony is testimony of the corporation and is binding on the corporation. Admissions made are admissions of the corporation.
iv) Saves valuable interrogatories where the number of interrogatories is limited.
v) Designee has duty to seek out the information if the designee does not already have knowledge about the noticed subjects.
vi) Corporation cannot maintain willful ignorance by not inquiring about matters not actually known to the corporation, but has a duty to testify about matters known or reasonably available to the corporation.
c) Practice tips
i) Remember that you are questioning the corporation, not the designee as a person. The person is a designee, not a deponent; the corporation is the deponent.
ii) Remember that you cannot ask questions outside of the categories designated in your notice. Therefore, be as all-inclusive , broad, and exhaustive as you can be in your notice.
(1) Broad categories should be included to enable you to ask far-ranging questions and still be within the categories noticed.
(2) Specific categories, in great detail as to the information sought, will prevent a designee from coming to the deposition unprepared to answer questions about important issues by saying “Well, your broad category did not alert me that you wanted to ask about this particular subject, so I didn’t prepare.”
(3) If a designee appears unprepared to testify about a noticed category, continue the deposition to enable the designee to inform herself about the corporation’s knowledge about the category. Then reconvene the deposition at a later date. If the designee fails or refuses to inform hersel about the corporate knowledge, a motion to compel should be granted, perhaps with sanctions.
(4) Matters of privilege are still privileged. Work product protection still applies, with a caution: a designee cannot obtain the corporate knowledge from a corporate attorney and thereby insulate the information from scrutiny as to source, etc. For example, if the designee finds out about Fact A from corporate counsel, opposing counsel cannot insert the work product doctrine when the designee is asked what corporate employee told the information to corporate counsel.
d) The deposition notice
i) See attached specimen notice.
ii) The notice preamble.
v) Subjects of the deposition
Taking a Killer Deposition of a Corporation in Virginia
[A VTLA CLE presentation by John Lowe.]
•I. Depositions of corporations under Federal Rule of Civil Procedure 30(b)(6) and Virginia Supreme Court Rule 4:5.
•II. Benefits of deposition of a corporation compared to interrogatories to a corporation.
•A. Though the witness has been thoroughly and skillfully prepared by a clever, skilful, knowledgeable, and even dishonest person, the exact questions cannot be predicted and, therefore, answers of the corporate designees (the witnesses) will be spontaneous.
•B. The witnesses, not the company’s lawyer, will be the ones to choose the words to use in each answer. The witnesses may not be as clever at hiding, evading, and coloring information requested as the company’s lawyers would be.
•C. Follow up questions can be instantaneous. (No need to send a follow up interrogatory and then wait another several weeks to receive the reply, only to find that yet further follow up is needed.)
•D. Limitations of the knowledge of the inquiring lawyer can be overcome instantaneously by fishing and probing the witnesses within the broad categories of corporate knowledge identified in the deposition notice and letters from counsel.
•III. Strategic timing of taking the deposition of the corporation
•A. Keep in mind that a second 30b6 notice on the same subjects may not be possible (assuming the witnesses come prepared to answer the questions about corporate knowledge on the subjects noticed).
•B. Early use of the 30b6 deposition can enable timely surgical discovery requests as follow up (interrogatories, requests for production of documents and things, requests for admissions, and individual depositions of witnesses found out about or identified in the 30b6 deposition).
•IV. How to force the deponent to come prepared to answer your questions.
•A. While multi-multi page lists of subjects dissected minutely and listed in infinite detail may be technically permitted in a 30b6 deposition, there are judges who, upon an objection that the long “laundry list ” of subjects was oppressive and burdensome, have struck the notice, thus requiring another, much reduced notice to be served.
•B. The potential problem sought to be avoided by such “laundry lists” is the corporate designee who responds to critical questions — perhaps many of the more important questions — “I’m sorry, I didn’t anticipate your asking about that,” thus effectively eviscerating the deposition and, at a minimum, requiring another follow up deposition, if one can be obtained, or use of follow-up interrogatories to try to obtain the information sought.
•C. The solution is quite simple and has been used successfully by the author many times. The 30b6 deposition notice identifies the subject areas to be covered in the deposition in two ways. First, it lists broad, all-encompassing language that avoids an objection that a particular question is not within the noticed subjects. Then, it gives more specific descriptions of subtopics, but not in great detail.
•D. Then comes the back breaker — the transmittal letter recites something along these lines: “In order to be fair to the designees who will inform themselves about the corporate knowledge of each subject and each subtopic identified in the deposition notice transmitted by this letter, the following details, at least, will be sought. This information is provided so that the defendant can arm its designees with a copy of this letter to enable the designees to ascertain the corporate knowledge about which they will be deposed.” There follows a detailed laundry list of every detail you wish to learn, so there can be no “I didn’t anticipate your asking for that information.”
•E. Specimens of an effective deposition notice and transmittal letter are attached. The reader will quickly see the method in the madness.
•F. This technique avoids objections to the notice. And there can be no effective objection to the transmittal letter, as it is provided so the designees can better know what information they need to know as witnesses at the deposition. (What a considerate inclusion by counsel noticing the deposition!)
•G. A prudent step is to call opposing counsel about a week before and inquire if the designees have any questions about the details outlined in the transmittal letter and, “Oh, by the way, you did provide a copy of the letter to your designees didn’t you?”
•H. This method has several benefits and earmarks for success. First, it avoids the objection. Second, it puts opposing counsel and its designees on notice of what details they need to come prepared to answer at the deposition. Third, if a designee fails to prepare on the listed details, the Court will have little patience unless it concludes that the details don’t really have anything to do with the case.
•V. Making a record of inadequate preparation in order to obtain court sanctions.
•A. If opposing counsel produces corporate designee witnesses who are not prepared to testify as to the corporate knowledge on the details listed in your transmittal letter, make you objection on the deposition record and be sure that both your deposition notice and a copy of your transmittal letter are exhibits to the deposition in support of the objection.
•B. Ask each designee the following questions and appropriate follow-up questions:
(1) When did you first learn you would be a designee witness of your corporation?
(2) What subjects in this notice [placing a copy in front of the designee] were you told that you would be testifying about as corporate designee? [Get the designee to identify the numbers and any limitations, shared subjects with other designees, etc.]
(3) How did you find out and what materials or documents were you given to assist you to be a designee? [Copy of notice? Copy of transmittal letter? Identity of other designees covering other subjects on the notice? Pleadings and other documents necessary to assist you in understanding the subjects you were to testify about? etc. etc.]
(4) What did you do to prepare to testify at this deposition about the corporate knowledge of your corporation on the subject for which you are designated? [What records did you research and read? With whom did you discuss each subject you were assigned? Did you make notes as you went along through your investigation and preparation? Where are those notes now? Did you check with workers in each of the corporation's offices, laboratories, plants, etc.?
C. Then make a motion to compel and redepose the corporation.
•VI. Obtaining corporate admissions in the deposition.
•A. A common problem in a 30b6 deposition is that questions by noticing counsel are phrased in such a way that the reader cannot determine if the witness was giving her personal answer or describing what the corporate knowledge or corporate position is.
•B. The result is that a court may say that the answer is not an admission of the corporation because it is not clear on the record if the witness was answering as the corporation or for herself personally.
•C. Some lawyers try to start the deposition by having opposing counsel agree on the record that every answer to questions is deemed to be a response of the corporation. That can be dangerous or awkward for the deposition taker, as sometimes the taker wants to ask the designee about her personal knowledge in addition to the corporate knowledge (in other words, perhaps ask if she knows this because she knew it or because she investigated to prepare to be corporate designee, and found it out that way. Besides, no lawyer in his right mind will agree to that stipulation as to his corporate designee's answers.
•D. The only safe way to obtain clear corporate admissions during a 30b6 deposition is to carefully consider the question and answer that you think may be a significant admission -- have the court reporter read them back to you if necessary -- and make sure the question and context make it clear that the answer is the response of the corporation. If you are not sure, then ask something like, "Now, let me be clear that the Johnson Hospital, Inc., knew that Dr. Jones had been disciplined in 2003."
•E. Is it possible to obtain an admission more indirectly, perhaps without the witness realizing what she has given up, and without telling her? Sure, but just be sure the language of the question and answer leaves no doubt -- or an acceptable level of doubt -- so that the answer is a corporate admission.
•VII. The issue of attorney-client privilege in the deposition of a corporation can cause problems.
•A. Just because a fact was provided to a designee by a company attorney does not render the fact privileged under the attorney-client privilege.
•B. Privileged information that was known by the corporate designee before she was designated or even that was learned by her after designation, as a part of her investigation, does not lose its privilege simply by her designation.
•C. If the designee learns about a privileged fact from a source who is not within the privilege, that fact must be disclosed in the deposition. This will be very rare, may be very difficult to prove source, and may be covered by some defense of wrongful disclosure by someone. At minimum, this will be a can-of-worms to work through. The key: make a clear record of all the surrounding facts, the identity of the source, and context of the disclosure to the designee.
•VIII. Authenticating documents using a deposition of a corporation.
•A. A 30b6 deposition is an excellent way to authenticate documents for use at trial without the need for a sponsoring witness.
•B. A 30b6 deposition is usable in trial by simply reading from it and, therefore, can provide the basis for authenticating a document that was authenticated in the deposition.
•IX. Application of the time limitation to a deposition of a corporation.
•A. Check the practice of the court where your case is filed. Most courts say -- and the correct rule is -- that the seven hour limit applies per witness -- not per 30b6 deposition. The company doesn't have to identify more than one designee, but if it does, then you get seven hours per witness.
•B. In a similar vein, note that a 30b6 deposition only counts as one deposition, if the number of depositions has been limited, regardless of how many seven hour designee witnesses there are in the deposition.
•C. Best rule for both of these issues is to check with your local rules and practices -- ask local counsel. If still in doubt, ask the Court in some appropriate way for a ruling (e.g., at a status conference).
•X. Tie-in to effective requests for production of documents.
•A. If you want the designee of a party corporation (i.e., not just a nonparty corporation that is being deposed) to bring documents, things, et al to the deposition, you must add a request to produce to your notice. The time for the deponent company to respond to such a request is 30 days federal (or 21 days Virginia state court) unless a shorter time is agreed upon or ordered by the Court. This is just an application per Rule 34 (or Rule 4:9) or its state court counterpart in most jurisdiction. Again, check the local practice or local rules of court.
•B. Obviously what this means is that in timing your 30b6 deposition if you want documents and things brought by the company, set the deposition at least 30 days ahead of the notice.
•C. In most jurisdiction you cannot substitute a subpoena to the party to bring the documents to the deposition, but must use Rule 34 or its state court counterpart.
•D. Deposing a nonparty corporation is a different matter. There you must subpoena the documents and things to be brought to the deposition (or produced in advance of it so you can better prepare for the deposition).
SPECIMEN RULE 30(b)(6) DEPOSITION NOTICE
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF VIRGINIA
IN RE WIDGET TECHNOLOGY PATENTS - CA 2002-103 (JL)
NOTICE OF DEPOSITION
PLEASE TAKE NOTICE that, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, and commencing at a time and place deemed mutually convenient, Defendant ABC Co. ("ABC") will take the deposition of Plaintiff XYZ, Inc. ("XYZ"), by oral examination using video tape, audio tape, and/or stenographic means. The oral examination will begin at a time and place to be agreed upon among the parties and continue from day to day during the hours of 9 a.m. to 5 p.m., excluding Saturdays, Sundays, and holidays, until completed. The deposition will be by oral examination before a Notary Public or other officer authorized by law to administer oaths.
XYZ is directed, pursuant to Rule 30(b)(6), to designate one or more officers, directors, managing agents, or other persons who consent and are knowledgeable to testify on its behalf with respect to each of the subject matters set forth in schedule C attached hereto. It is understood that XYZ in response to this Notice may have to identify and produce several different designees to respond to the subject matters set forth in Schedule C.
The examination will continue until completed with such adjournments as to time and place as may be necessary.
You are invited to attend and examine the witness.
Date: __________, 1996 By ___________________________
John Q. Lawyer
Lawyer and Jones, P.C.
A. The term "XYZ, Inc." or "XYZ" shall mean XYZ, Inc. and shall include any present domestic and foreign divisions, subsidiaries, and affiliated companies; its predecessors and successors, whether wholly or partially owned; and all directors, officers, agents, employees, consultants, trustees, staff members, representatives, and attorneys of any of the foregoing.
B. The term "ABC" shall mean ABC Company and all its agents, employees, and representatives.
C. "Describe" or "description," when used in conjunction with a document, includes the providing of all production numbers associated with the document and the title and full description of the document.
D. "Identify" or "identity," when used in conjunction with a person, includes the
providing of the last known full name, last known address, and last known phone number of the person.
E. "Wildwidget" means any widget marketed by XYZ under the trademark "Wildwidget".
Throughout this notice, references to instructions shall refer to the following lettered instructions.
A. Occurrences. As to each occurrence or conduct that XYZ alleges is an act by
ABC constituting or contributing to trademark infringement with XYZ's marks, provide the following information.
1. Identity of each agent or representative of ABC whom XYZ alleges engaged in the alleged occurrence or conduct.
2. The date, location, and circumstances of the alleged occurrence or conduct.
3. Each aspect of the alleged occurrences or conduct XYZ claims constituted or contributed to trademark infringement, and each injury XYZ claims it suffered as a result of the occurrence or conduct.
4. The date and circumstances of XYZ's first awareness of the alleged
occurrence or conduct. Identity of the person(s) who provided XYZ's first awareness of the occurrence or conduct and a summary of the information of which XYZ first became aware.
5. Identity of all witnesses to the alleged occurrence or conduct.
6. Descriptions of all countermeasures, responses, and investigations XYZ undertook as a result the alleged occurrence or conduct. As to each such undertaking, provide the following information:
a. Identity of each agent or representative of XYZ who participated in the undertaking;
b. Date, location, and description of the undertaking;
c. Identity of all participants in the undertaking and describe their respective roles in the undertaking;
d. Effectiveness of the undertaking in countering the alleged occurrences or conduct of ABC;
e. All information XYZ learned in the investigation; and
f. Description of any documents involved in the undertaking or mentioning the occurrences, conduct of ABC, or undertaking of XYZ.
B. Documents. As to each document that XYZ alleges was created, sent, or delivered by ABC as a part of ABC's trademark infringement, provide the following information:
1. Description of the document.
2. Identity of the persons who allegedly sent and received the document or copies of it.
3. Dates, locations, and circumstances of the alleged sending, delivering, or receiving of the document.
4. Date XYZ first became aware of the document and the identity of the person who provided that information to XYZ.
5. Description of all countermeasures, responses, and investigations XYZ
undertook as a result the alleged occurrence or conduct. As to each such undertaking, provide the following information:
a. Identity of each agent or representative of XYZ who undertook the countermeasures, responses, and investigations;
b. Date(s), location(s), and description(s) of the undertaking(s);
c. Identity of all participants in the undertaking(s); and
d. Description of any document(s) involved in the undertaking(s).
C. Analyses. As to each analysis, assessment, or comparison, provide the following information:
1. Description of the analysis, assessment, or comparison, including but not limited to the method used and the results obtained;
2. Date, location, and circumstances of the analysis, assessment, or comparison;
3. Identity of all participants in the analysis, assessment, or comparison and their respective roles; and
4. Description of each document reporting, recording, or discussing the data, evaluation, or results of the analysis, assessment, or comparison.
SUBJECTS OF THE DEPOSITION
As to each of the following subjects, provide full information, including but not limited to the information specifically requested.
1. The ABC sales brochure referenced at page 41 of XYZ's Answer to ABC Interrogatory No. 7 ("ABC Int. 7 Ans."), which ABC allegedly distributed to physicians and its alleged distribution. [See Instructions A and B, above.]
2. Meetings and telephone calls that allegedly took place between ABC and (1) Dr. Eva Braun, (2) Dr. William Shakespeare, or (3) Dr. Susan B. Anthony during which ABC allegedly made false or misleading statements about Wildwidgets; and provide a description of the substance of each such statement. See ABC Int. 7 Ans., p. 47‑48, 51, and 53‑54. [See Instructions A and B, above.]
3. [[Add trademark topics here, if you want more for the specimen.]]
SCHEDULE D DOCUMENTS
ABC requests that XYZ produce for inspection and copying at the time and place of the deposition all documents that have not yet been produced or have been produced within the ten days preceding the first day of the deposition and that (1) are responsive to previously filed discovery requests, (2) have been referred to by XYZ in preparing for this deposition, or (3) have been the source of information that XYZ has found in response to this deposition notice.
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that a true and complete copy of this NOTICE OF DEPOSITION was served, as indicated, on the ____ day of April, 20__, to the following attorneys:
Clay and Mudd
13 Hades Court
Crowzay, JF 22909
SPECIMEN TRANSMITTAL LETTER
Attorney at Law
87 Gettysburg Road
Jefferson City, VA 22903
February 12, 2009
Henry Clay, Esq.
Clay and Mudd
13 Hades Court
Crowzay, VA 22909
XYZ, Inc. v. ABC Co.
Notice of Deposition
Enclosed is our Notice of Deposition of XYZ, Inc. pursuant to Fed. R. Civ. P. 30(b)(6). While the subjects are self-explanatory, let me point out some things for you to have your designee witnesses prepared to discuss in the deposition.
Subject 6 (E-mails).
Please be sure that your designees know how to conduct a global word search of all pertinent e-mail records and repositories for the names, words, and terms listed and any others needed under your theory of the case to locate e-mails related to the alleged infringements. You will recall in the X-Box case last year your designees didn’t understand how to conduct such a search properly and it resulted in a long delay and a lot of wasted time.
We will ask for the locations and identities of custodians of the e-mails in question, particularly the originals in native format.
Please be sure that the designees consider the lap top computers, Blackberry’s, and home computers of all officers and key people, and backup tapes of your company computer system.
Subject 7 (Document searches)
I will ask about any written or e-mail instructions given to the persons who conducted the searches for documents and things responsive to our production requests. Such written instructions would be responsive to one or more of our document requests and if they exist, please supplement you responses and have your designee bring a copy of them to the deposition.
I will ask specifically about file cabinets and desks searched, so it will be important for your designee to inquire of the searchers about those places searched.
As to your overseas offices, I will want to inquire about the searches of those, as well — who did it, what they were told to look for, who supervised the searches there, and what was found there. I will also ask about the language proficiency in English of those who searched for documents.
Note that you may list as many details as you wish, to put the deponent corporation and its counsel on notice of questions you will expect the designees to be prepared on. Those shown above are merely a few specimens