The Scope Of Rule 30(b)(6) Depositions

This article was originally published in the

February, 2008 issue of DRI's For the Defense

magazine.

It is quite common for a corporation to be a party to a

lawsuit. However, a corporation is considered to be a

"legal fiction." How, then, can a corporation

participate in the processes and procedures involved in the

defense of a lawsuit? Ultimately, the defense of a corporation,

like any other defense, depends on the testimony of human

beings. Isaac v. North Carolina Dept. of Transp., 192

Fed. Appx. 197, 201 (4th Cir. 2006) ("An organization can

only act through human beings"). In fact, "[i]t is

well-settled that a corporation is a creature of legal fiction

which can act only through its officers, directors and other

agents." MicroSignal Corp. v. MicroSignal Corp.,

147 Fed. Appx. 227, 231 (3d Cir. 2005).

The Federal Rules of Civil Procedure recognize that a

corporation may only participate in a lawsuit by relying on the

testimony of its designated representatives. See Fed.

R. Civ. P. 30(b)(6) (As amended, eff. December 1, 2007).

Pursuant to the Federal Rules, a party may subpoena and/or

notice the deposition of a corporation through a special

procedure commonly referred to as a "30(b)(6)

deposition." Rule 30(b)(6) states:

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. A subpoena must advise a

nonparty organization of its duty to make this designation.

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.

Id. Accordingly, Rule 30(b)(6) is intended to

codify the manner in which testimony may be obtained from a

legal entity in a civil action. This article focuses on the

scope and application of Rule 30(b)(6) and a corporation's

duties thereunder.

The Substance Of The Notice Of Deposition And/Or

Subpoena

Under Rule 30(b)(6), a party to a lawsuit may notice the

deposition of a corporation, as opposed to naming an individual

agent or employee of the corporation expressly, provided that

the party "describe with reasonable particularity

the matters for examination." Id. (emphasis

added). The "reasonable particularity" requirement

will be enforced by the court and a generic notice of

deposition is not sufficient. See, e.g.,

Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058

(7th Cir. 2000). "[T]he requesting party must take care to

designate, with painstaking specificity, the particular subject

areas that are intended to be questioned, and that are relevant

to the issues in dispute." Prokosch v. Catalina

Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000);

see also Alexander v. Federal Bureau of Investigation,

188 F.R.D. 111, 114 (D. D.C. 1998) (rejecting notice to depose

on "any matters relevant to this case" as not meeting

the "reasonable particularity" requirement).

Although Rule 30(b)(6) does not expressly limit the subject

matter or number of topics that may questioned in the

deposition, the discovery protections available to an

individual deponent are also available to a corporate

representative. See Fed. R. Civ. P. 26(c) (permitting

the court to make certain rulings "necessary to protect a

party or person from annoyance, embarrassment, oppression, or

undue burden or expense"). However, unlike the deposition

of an individual deponent, a corporation receives early notice

of the intended topics of the 30(b)(6) deposition.

Consequently, counsel for the corporation should move quickly

to resolve any potential discovery dispute with the plaintiff

related to the identified topics and, if no agreement can be

reached, request a protective order from the court.

Counsel's failure to take immediate action following

receipt of a potentially objectionable notice of deposition can

result in an adverse effect on the corporate client.

See, e.g., Landsport Corp. v. Canaramp

Corp., 2006 WL 4692567, *2 (M.D. Fla. 2006).

Moreover, although Rule 30(b)(6) contains no express

limitations on discovery, courts, on occasion, have found that

a deposition notice can be overbroad. For instance, in Reed

v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000), the court

found a notice of deposition to be overbroad when the notice

listed topics of inquiry, but expressly stated that the topics

of inquiry would include, but would not be limited to, the

topics listed in the notice. A party should not be expected to

respond to such an overbroad and general request because

"[a]n overbroad Rule 30(b)(6) notice subjects the noticed

party to an impossible task.... [because] the defendant cannot

identify the outer limits of the areas of inquiry

noticed." Id.

Upon receipt of a Rule 30(b)(6) notice, defense counsel

should thoroughly review the description of the matters of

inquiry to ensure that they are reasonably identified. In the

event that the notice of deposition fails to identify the

matters of inquiry, or in the event that it seeks matters

outside of the scope of Rule 26, defense counsel should act, as

quickly as possible, to have plaintiff's counsel to revise

the notice and, if an agreement cannot be reached, seek a

protective order from the court.

Topics Beyond The Scope Of The Notice

As a Rule 30(b)(6) deposition takes place, it is common for

the questioning party to exceed the scope of the topics

contained in the Rule 30(b)(6) notice. Jurisdictions are

currently divided on whether a party noticing a Rule 30(b)(6)

deposition is required to limit its questions to the topics

reasonably identified in the notice. See U.S. ex rel.

Tiesinga v. Dianon Systems, Inc., 240 F.R.D. 40, 42 (D.

Conn. 2006); Paparelli v. Prudential Ins. Co., 108

F.R.D. 727, 729-30 (D.Mass.1985); King v. Pratt &

Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995).

In Paparelli v. Prudential Ins. Co. of America, 108

F.R.D. 727, 730 (D.C. Mass. 1985), the court held that "if

a party opts to employ the procedures of Rule 30(b)(6)... to

depose the representative of a corporation, that party must

confine the examination to the matters stated 'with

reasonable particularity' which are contained in the Notice

of Deposition." In setting out the reasoning for its

ruling, the Paparelli court stated:

First, the purpose of the rule was to afford the party

deposing the corporation the ability to obtain information on

certain matters in the form of testimony on behalf of the

corporation without having to name the individual in the

corporation to be deposed. It makes no sense for a party to

state in a notice that it wishes to examine a representative

of a corporation on certain matters, have the corporation

designate the person most knowledgeable with respect to those

matters, and then to ask the representative about matters

totally different from the ones listed in the notice.

Second, another purpose of the rule was to allow the

corporation to designate a person who was prepared to answer

questions on certain matters on behalf of the corporation.

The rule was designed to avoid the problem which arose when a

party noticed a particular officer of the corporation and the

corporation had no way of knowing what matters were going to

be the subject of the inquiry and whether the particular

officer whose deposition had been noticed knew anything about

those matters. Obviously, this purpose of the rule would be

effectively thwarted if a party could ask a representative of

a corporation produced pursuant to a Rule 30(b)(6) deposition

notice to testify as to matters which are totally unrelated

to the matters listed in the notice and upon which the

representative is prepared to testify.

Third, the fact that the notice must list the matters upon

which examination is requested "with reasonable

particularity" also lends weight to the notion that a

limitation on the scope of the deposition to the matters

specified in the notice is implied in the rule. If a party

were free to ask any questions, even if "relevant"

to the lawsuit, which were completely outside the scope of

the "matters on which examination is requested",

the requirement that the matters be listed "with

reasonable particularity" would make no sense. With this

in mind, the sentence which reads that "[t]he persons so

designated shall testify as to matters known or reasonably

available to the organization" can be read in harmony

with the rest of the rule if the word "matters" has

the same meaning as it does when used earlier in the rule,

i.e. "matters upon which examination is

requested". As to "matters upon which examination

is requested", the representative has the duty to answer

questions on behalf of the organization to the extent that

the information sought is "known to the organization or

reasonably available to it".

Id. at 729-30. However, the current trend

followed by courts appears to hold that a Rule 30(b)(6)

deposition should not be limited to those matters contained in

the notice. In King v. Pratt & Whitney, a Div. of

United Technologies Corp., 161 F.R.D. 475, 476 (S.D. Fla.

1995), the United States District Court for the Southern

District of Florida examined Paparelli, but declined

to follow its holding. Instead, the King court

held:

Rule 30(b)(6) should not be read to confer some special

privilege on a corporate deponent responding to this type of

notice. Clearly, Plaintiff could simply re-notice a deponent

under the regular notice provisions and ask him the same

questions that were objected to. However, Plaintiff should

not be forced to jump through that extra hoop absent some

compelling reason. Rather, the Rule is...