• June 22, 2015

skyscrapersAll civil litigators know that there is a means under the federal rules of civil procedure (and, to the best of my knowledge, all 50 states) for a civil litigant to depose a corporation, a partnership, an LLC, or any other kind of business organization. In the federal rules, the applicable rule is Rule 30(b)(6) of the Federal Rules of Civil Procedure.

I imagine a corporate executive saying, “Get Exxon (or Google, or “The Treasury”) on the phone…”

It would seem to be an awesome, even overwhelming power — to be able to sit NBC or any other Fortune 1,000 company a in a conference room chair next to a court reporter and question it under oath — would it not? (“Moving on from Brian Williams, I want to touch briefly on Leno, then discuss corporate relations with parent company G.E., and then spend a few hours dealing with Willard Scott…”)

Of course, in practice, Rule 30(b)(6) depositions are a lot more limited, difficult, and complicated to take than that. On they other hand, they can still be big challenges for businesses, when the businesses themselves have to offer a designated witness to speak for the entity. Rule 30(b)(6) depositions can be a powerful tool for the examining party.

The court rules recognize that businesses cannot possibly have a single designee charged with testifying about all aspects of a business. Further, the court rules recognize that businesses cannot be required to designate someone to testify to some expansive, over-arching aspect of the business like, say, someone asking Apple to produce a 30(b)(6) witness to be deposed about “the iPhone” (manufacturing? design? advertising? sales? distribution? packaging? licensing? patents? antitrust? employment-related? etc etc etc) (To give some idea of how unbelievably complex such organizations are, keep in mind that 1 million work at Apple in the U.S. alone.)

Having said that, lawyers and judges often do not agree on the amount of specificity required in identified subject matter areas for 30(b)(6) depositions.

In the the linked decision, Google’s lawyers get hammered for producing a 30(b)(6) witness who was not prepared to answer the questions posed (“Google failed to comply with its obligation to educate a witness on the noticed 30(b)(6) topic concerning license agreements.” Giving Google and its lawyers the benefit of the doubt, perhaps they just misunderstood what, exactly, the plaintiff was seeking when it asked for Google for a witness to testify concerning “license agreements and royalty agreements.”)

In addition to the uncertainty of the stated scope of 30(b)(6) depositions and the adequate preparation of 30(b)(6) witnesses, there are still many other ways that lawyers manage to fight about these depositions because, as I say, they can be powerful weapons in the civil litigator arsenal.

In Bison Advisors et al. v. Irvin Kessler, et al., pending before Sr. U.S. District Court Judge David S. Doty in the U.S. District Court (D. Minn.), the issue is whether a party can depose a business owner, in his own name, and then have another go at him as a 30(b)(6) witness, as a representative of the entity. If yes (and I think the answer is likely “yes”), can the opposing party set time limits on the 30(b)(6) deposition? What kind of time limit? Do they have to seek a protective order for the court to set the limits or can litigants unilaterally declare them?

After all, the rules limit depositions to 7 hours absent a court order to the contrary…Can a plaintiff get 7 hours with a witness and later seek a 30(b)(6) deposition of the business, carefully designed so that the same witness would be the likely designee and get a second 7-hour deposition of the same person?

As set out in the attached motion to compel, parties to a trade secret lawsuit are fighting about this and they seem only 5 hours apart. Plaintiff has agreed to produce a 30(b)(6) witness for two hours and Defendant proposes to limit two 30(b)(6) witnesses’ testimony to 7 hours.

And, in conclusion, this is why civil litigators’ professional lives can, at times, seem pathetic. Untold hours are spent fighting over whether one side can question another side on particular subject matter areas for two hours or 7 hours. And this is one of untold numbers of skirmishes in this litigation that has been going on for a about a year now.

This, in turn, is why I am particularly concerned for couples both of whom are civil litigators. When I have days (or weeks) consumed by such skirmishes, it is a satisfying antidote to come home and hear my significant other talking about solving real problems for real people…

[Ed. Note Afterword: The Court “split the baby” and gave defendant’s 3.5 hours for the 30(b)(6) deposition.]

 

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