Commercial Litigation and Arbitration

30(b)(6) Witnesses at Trial

The plaintiff in Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006), took a 30(b)(6) deposition of the corporate representative of one of the two defendants. The plaintiff was prepared to read selected testimony into the record if the witness did not appear at trial, but he did. The District Court, however, precluded the plaintiff from taking live testimony from the 30(b)(6) witness because the witness lacked personal knowledge of the matters as to which he had given the defendant corporation’s knowledge in the deposition. Held, this limitation on live cross-examination at trial was error. In Judge Jerry Smith’s words:

‛Although there is no rule requiring that the corporate designee testify ‘vicariously’ at trial, as distinguished from at the rule 30(b)(6) deposition, if the corporation makes the witness available at trial he should not be able to refuse to testify to matters as to which he testified at the deposition on grounds that he had only corporate knowledge of the issues, not personal knowledge. This conclusion rests on the consideration that though Federal Rule of Civil Procedure 32(a)(2) ‘permits a party to introduce the deposition of an adversary as part of his substantive proof regardless of the adversary's availability to testify at trial,’ Coughlin v. Capitol Cement Co., 571 F.2d 290, 308 (5th Cir. 1978),district courts are reluctant to allow the reading into evidence of the rule 30(b)(6) deposition if the witness is available to testify at trial, and such exclusion is usually deemed harmless error. Thus, if a rule 30(b)(6) witness is made available at trial, he should be allowed to testify as to matters within corporate knowledge to which he testified in deposition....

‛Accordingly, if a certain fact is within the collective knowledge or subjective belief of [defendant corporation] Cajun, [witness] Grisby should be prepared on the issue by Cajun, and allowed to testify as to it, even if it is not within his direct personal knowledge, provided the testimony is otherwise permissible lay testimony. Thus, if it was within the corporate knowledge of Cajun that [plaintiff] BRA sent Cajun a warranty claim, Grisby should be allowed to testify as to it even if he did not have direct knowledge of it.“

469 F.3d at 434.

Share this article:


Recent Posts