Commercial Litigation and Arbitration

30(b)(6) Testimony Must Satisfy the Hearsay Rule to be Admissible

30(b)(6) testimony is frequently taken from an adverse party and comprises an admission under Federal Rule of Evidence 801(d) and Federal Rule of Civil Procedure 32(a)(3). Not always. If not, it must otherwise satisfy hearsay and competency requirements. From Century Pac., Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 215 n. 5 (S.D.N.Y. 2007):

"Plaintiffs also argued that depositions under Federal Rule of Civil Procedure 30(b)(6), such as the Storey deposition, are not required to be made solely on the basis of the personal knowledge of the individual deponent. This is correct, in that a corporate deponent is obligated to be informed of information within the knowledge and control of the corporation. This does not, however, imply that hearsay statements included in Rule 30(b)(6) depositions do not have to be supported by admissible evidence to be considered for summary judgment purposes.

The cases cited by the Plaintiffs for the proposition that Rule 30(b)(6) allows such testimony speak only to the question of whether the person designated to represent the interests of a corporation for the purposes of a Rule 30(b)(6) deposition must have personal knowledge of all the issues discussed at the deposition. See Twentieth Century Fox Film Corp. v. Marvel Enters. , No. 01-CV-3106, 2002 U.S. Dist. LEXIS 14682, 2002 WL 1835439, at *2 (S.D.N.Y. Aug. 8, 2002) (noting that a corporate representative has a duty to inform herself about the corporation's position and therefore [**19] need not base all testimony on personal knowledge); SEC v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992) (stating that Rule 30(b)(6) deponent is not required to testify only about those matters of which they have "actual knowledge"). They do not address whether hearsay evidence made by a corporate deponent without personal knowledge is admissible without additional documentary evidence from the record. Numerous courts have rejected hearsay evidence by a corporate deponent when there is no additional evidence to support the statements. See, e.g., Digene Corp. v. Ventana Med. Sys., Inc., 316 F. Supp. 2d 174, 181 n.10 (D. Del. 2004); Efferson v. Kaiser Aluminum & Chem. Corp., 816 F. Supp. 1103, 1116 n.31 (E.D. La. 1993).".

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