Commercial Litigation and Arbitration

30(b)(6) Deposition Not Limited to Topics in Notice (Caselaw Split) — Professional Videographer Unnecessary Where Certified Stenographer Is Present, If Video Complies with Rule 30(b)(5)

From Am. Gen. Life Ins. Co. v. Billard, 2010 U.S. Dist. LEXIS 114961 (N.D. Iowa Oct. 28, 2010):

[Scope of 30(b)(6) Deposition]

The deposition of Nancy Yasso was taken in accordance with Federal Rule of Civil Procedure 30(b)(6), pursuant to a first amended notice served on AGLIC. In his notice, Billard stated that he would take the deposition of the designated representative of AGLIC who was most familiar with 16 identified topics. In response to the notice, AGLIC designated Nancy Yasso. Billard does not claim that Yasso was unfamiliar with the topics identified in the notice and, in fact, asserts that Yasso "is and has been AGLIC's main go-to person to perform its claims review/underwriting review for all of its 'contested claims' nationwide regardless of the jurisdiction or concepts of law at issue in any of the claims."

AGLIC asserts that Billard's questioning of Yasso is properly limited to those areas identified in the Rule 30(b)(6) notice. ***

In support of its position, AGLIC cites Paparelli v. Prudential Ins. Co. of America, 108 F.R.D. 727 (D. Mass. 1985). There, *** [i]n addition to asking questions clearly within the scope of the subject matter as set forth in the notice, the plaintiff's counsel also attempted to question the witness regarding a so-called "product letter." The defendant's counsel "objected to questions relating to this document and instructed the witness not to answer the questions." . . . . In denying the plaintiff's motion for sanctions, the Court recognized that there is nothing in the text of Rule 30(b)(6) or the advisory committee's notes which limit the scope of a Rule 30(b)(6) deposition to matters identified in the deposition notice. *** Nonetheless, the Court found that "such a limitation is implied by the procedures set forth in the rule and the reasons for the rule's adoption as noted by the Advisory Committee."....

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.

Id. at 729-30. Accordingly, the Court in Paparelli concluded that the questioner "must confine the examination to the matters stated 'with reasonable particularity' which are contained in the Notice of Deposition." ***

It would appear, however, that every court which has addressed this issue since Paparelli has taken a different view. In King v. Pratt & Whitney, 161 F.R.D. 475 (S.D. Fla. 1995), *** the Court rejected the holding in Paparelli and concluded that "the general deposition rules govern (i.e., Fed.R.Civ.P. 26(b)(1)), so that relevant questions may be asked and no special protection is conferred on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6)." .... The conclusion reached in King has been unanimously accepted by courts addressing the issue since that time. See, e.g., Philbrick v. Enom, Inc., 593 F. Supp. 2d 352, 363 (D.N.H. 2009); Detoy v. City and County of San Francisco, 196 F.R.D. 362, 366 (N.D. Cal. 2000); Cabot Corp. v. Yamulla Enterprises, Inc., 194 F.R.D. 499 (M.D. Pa. 2000); Overseas Private Inv. Corp. v. Mandelbaum, 185 F.R.D. 67 (D.D.C. 1999); Edison Corp. v. Town of Secaucus, 17 N.J. Tax 178, 182 (1998).

I adopt the majority view and find that the questioning of a Rule 30(b)(6) deponent is not limited to those subjects identified in the Rule 30(b)(6) notice. ***

[No Professional Videographer Required]

Finally, AGLIC asks that the Court order Billard to secure, at his expense, an "officer" to conduct all future audiovisual recordings of depositions. In the First Amended Notice of Deposition, Billard advised AGLIC that the Rule 30(b)(6) deposition "will be recorded stenographically and by audio/video means." When Mr. Thrall arrived at Mr. Van Susteren's office, he discovered that while a professional stenographer was present, Mr. Van Susteren intended to videotape the deposition himself. In a declaration submitted in support of AGLIC's motion for protective order, Mr. Thrall states that "I permitted Ms. Yasso's deposition to proceed to facilitate the deposition, and because a certified court reporter was otherwise present." Apparently, the first hour of Yasso's deposition was inadvertently not recorded by Mr. Van Susteren. Accordingly, AGLIC asks that Billard be ordered to retain "an 'officer' to conduct all future audiovisual recordings of depositions."

AGLIC cites no authority for this proposition. Billard argues that the rules do not require employment of a professional videographer, citing Pioneer Drive, LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552 (D. Mont. 2009). There, the plaintiff's attorney set up a small video camera with the intention of visually recording the depositions. The defendant's attorney objected, insisting on a professional videographer. The plaintiff acquiesced, hiring a videographer who "stayed for the balance of the week's depositions to the tune of about $15,000." Id. at 554. On the plaintiff's motion, the Court ordered the defendant to reimburse the videographer fees.

The Court concludes that Billard is under no obligation to hire a professional videographer. Billard must adhere, however, to the requirements found in Federal Rule of Civil Procedure 30(b)(5). If the video recording fails to comply with the rules, then AGLIC may seek an appropriate protective order. See Id. at 555-56 ("A deposed party or counsel concerned about accuracy or image manipulation can seek a protective order, can choose an additional method to record the deposition, or can move after the fact to strike the recording.").

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