Government Contracting Database
Rule 30(b)(6) Depositions
Rule 30(b)(6) depositions, while costly, are a fact of life in corporate litigation. See Exxon Research and Engineering Company v. United States,44 Fed.Cl. 597, 600 (1999) (“‘The Court understands that preparing for a Rule 30(b)(6) deposition can be burdensome. However, this is merely the result of … the privilege of being able to use the corporate form to conduct business.’”) (quoting United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C.1996)). Iris Corp. Berhad v. United States, 84 Fed. Cl. 489, 494 (2008)
If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation. Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D.Neb.1995) (citing Marker, 125 F.R.D. 121, 126 (M.D.N.C.1989)). Thus, the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.), aff’d, 166 F.R.D. 367 (M.D.N.C. 1996).
Consequently, it is not uncommon to have a situation, where a corporation indicates that it no longer employs individuals who have memory of a distant event or that such individuals are deceased. See Dravo Corp., 164 F.R.D. at 75; U.S. v. Massachusetts Indus. Finance Agency, 162 F.R.D. 410, 412 (1995). These problems do not relieve a corporation from preparing its Rule 30(b)(6) designee to the extent matters are reasonably available, whether from documents, past employees, or other sources. Ierardi v. Lorillard, Inc., Civ. A. No. 90–7049, 1991 WL 158911 (E.D.Pa. Aug. 13, 1991). Of course, just like in the instance of an individual deponent, the corporation may plead lack of memory. However, if it wishes to assert a position based on testimony from third parties, or their documents, the designee still must present an opinion as to why the corporation believes the facts should be so construed. The attorney for the corporation is not at liberty to manufacture the corporation’s contentions. Rather, the corporation may designate a person to speak on its behalf and it is this position which the attorney must advocate. United States v. Taylor, 166 F.R.D. 356, 361–62 (M.D.N.C.), aff’d, 166 F.R.D. 367 (M.D.N.C. 1996)
Rule 30(b)(6) explicitly requires a contractor to have persons testify on its behalf as to all matters known or reasonably available to it and, therefore, implicitly requires such persons to review all matters known or reasonably available to it in preparation for the Rule 30(b)(6) deposition. This interpretation is necessary in order to make the deposition a meaningful one and to prevent the “sandbagging” of an opponent by conducting a half-hearted inquiry before the deposition but a thorough and vigorous one before the trial. This would totally defeat the purpose of the discovery process. Preparing for a Rule 30(b)(6) deposition can be burdensome. However, this is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business. United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C.), aff’d, 166 F.R.D. 367 (M.D.N.C. 1996)
There exists no obligation to produce witnesses who know every single fact surrounding a matter, only those that bear relevance or are material to events directly underlying a dispute. See Banks v. Office of the Senate Sergeant–at–Arms, 241 F.R.D. 370, 373 (D.D.C.2007); Wilson v. Lakner, 228 F.R.D. 524, 529 n. 7 (D.Md.2005). Additionally, a witness’s inability to testify as to information unavailable to the company he represents will not constitute a violation of an RCFC 30(b)(6) deposition order. See Banks, 241 F.R.D. at 373, 375 (a Rule 30(b)(6) designee needs not conduct investigations beyond what is “reasonably known to the company”). Dairyland Power Co-op. v. United States, 79 Fed. Cl. 709, 715 (2007)
Updated: July 5, 2018