Duties of 30(b)(6) Witnesses and the Organizations Presenting Them — Trial Counsel Normally Inappropriate 30(b)(6) Witness — Unprepared Witness = Failure to Appear — Witness Cannot Testify Exclusively from Document Prepared by Litigation Counsel

From In re Neurontin Antitrust Litig., 2011 U.S. Dist. LEXIS 6977 (D.N.J. Jan. 24, 2011):

Pursuant to Rule 30(b)(6), "a party may take a deposition of an individual who is designated to testify on behalf of a company, corporation or government agency." *** Use of Rule 30(b)(6) witnesses is meant to benefit the discovery process by

more efficiently produc[ing] the most appropriate party for questioning, curb[ing] the elusive behavior of corporate agents who, one after another, know nothing about facts clearly available within the organization and suggest someone else has the requested knowledge, and reduc[ing] the number of depositions for which an organization's counsel must prepare agents and employees.

*** A Rule 30(b)(6) deponent must be able to "testify about information known or reasonably available to the organization" called for by the deposition notice. Fed. R. Civ. P. 30(b)(6). Such testimony is binding on the organizational entity and goes beyond the deponent's personal knowledge about the topics. ***

The organizational entity has the duty to designate, produce, and prepare the Rule 30(b)(6) deponent. See Fed. R. Civ. P. 30(b)(6)***. This duty includes preparing the witness to state the organization's position, knowledge, subjective beliefs, and opinions on identified topics. *** The entity must "make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought . . . and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed . . . as to the relevant subject matters." *** While such preparation can be labor intensive, "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." ***

Because the duty of preparation extends beyond the deponent's personal knowledge and involves the knowledge of the entity, it may be "necessary [for] the deponent . . . [to] use documents, past employees or other resources to obtain responsive information." ***If an organization

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. [Emphasis in original.] Rather, the corporation may designate a person to speak on its behalf and it is this position which the attorney must advocate.

*** In short

[i]f a corporation has knowledge or a position as to a set of alleged facts or an area of inquiry, it is its officers, employees, agents or others who must present the position, give reasons for the position, and, more importantly, stand subject to cross-examination. A party's trial attorney normally does not fit that bill.

***In Black Horse, the Court of Appeals for the Third Circuit adopted the pragmatic interpretation of Rule 37(d)'s requirement for a Rule 30(b)(6) witness "to appear." Black Horse, 228 F.3d at 303-04. For such a deposition, the Black Horse court held that a corporation's production of "an unprepared witness is tantamount to a failure to appear that is sanctionable under Rule 37(d)." *** The appellate court found that "[i]n reality if a Rule 30(b)(6) witness is unable to give useful information he is no more present for the deposition than would be a deponent who physically appears for the deposition but sleeps through it." Id. at 304 (stating further that "[f]or courts to permit litigants to disregard the responsibilities that attend the conduct of litigation would be tantamount to encouraging dilatory tactics" (quoting Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3d Cir. 1979) (internal quotations omitted)). ***

[T]he use [by a 30(b)(6) witness] of an outline created entirely by litigation counsel contradicts the purpose of Rule 30(b)(6) and turned the witness here into something even less than "a mere document-gatherer" and he surely was not a "live witness[] who know[s] or who can reasonably find out what happened in given circumstances." Wilson, 228 F.R.D. at 530. The witness did nothing more than review items the defendant's counsel "marshaled," most of which involved excerpts of depositions gathered as part of this and other litigations. *** A properly prepared Rule 30(b)(6) must be able to provide facts known by corporate employees who authorized the disputed denials, state that the corporation relied entirely on investigation and decisions of outside counsel, or admit that there are no facts known by the corporation. The Rule 30(b)(6) witness, however, cannot simply be a conduit for counsel's contentions.

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