Rule 30(b)(6) Depositions 

Our standard procedure for taking and defending Rule 30(b)(6) depositions.

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NOTE! This Procedure contains detailed tactical steps that are not known to most litigators, but which are MANDATORY for use in this firm. You MUST be intimately familiar with all aspects of this Procedure and implement them in your Rule 30(b)(6) deposition practice.

Introduction

In the realm of high-stakes commercial litigation, one of the most important and rapidly evolving procedures is the taking of a corporate deposition under Rule 30(b)(6) of the federal and state Rules of Civil Procedure. The stringent requirements placed upon an organization responding to a Rule 30(b)(6) notice of deposition make the use of this rule one of the most potent weapons in a litigator’s arsenal. Consequently, defending a Rule 30(b)(6) deposition requires exceptional care and very thorough preparation of the witness.

In commercial litigation, disputes involving the following subjects arise with some frequency:

  • the scope of Rule 30(b)(6) notices and topic lists
  • compliance with Rule 30(b)(6) notices, including failure to properly prepare designee witnesses
  • objections during Rule 30(b)(6) depositions, including objections based upon privileges
  • use of Rule 30(b)(6) deposition testimony in motions and at trial
  • the length of Rule 30(b)(6) depositions, where additional time is sought by the deposing party

A Rule 30(b)(6) practitioner must expect—and be prepared for—battles in these areas, the outcome of which ca have a surprising impact on the outcome of a case. Success depends upon a coordinated series of tactical measures executed skillfully by counsel in order to optimize results. We have developed strategies for maximizing our effectiveness on both sides of this area of practice. This Procedure will provide you with tools for that purpose; covering both the taking and defense of Rule 30(b)(6) depositions, providing useful samples of necessary correspondence and deposition notices, as well as convenient references to essential case law that will be needed to support positions you take on either side of the procedure (noticing and taking, as well as defending, Rule 30(b)(6) depositions).

The key to success in Rule 30(b)(6) depositions – regardless of which side of the deposition you are on – is extremely thorough preparation based upon your intimate knowledge of the governing legal standards and available tactics.

Governing Law

The law governing Rule 30(b)(6) depositions is more detailed, and more stringent, than that governing ordinary depositions. First, we will examine key Rules of Civil Procedure which are the cornerstone for the caselaw that guides your tactics. Following that, useful excerpts from the caselaw are provided.

Rule 30(b)(6)

The first step in becoming skilled in Rule 30(b)(6) deposition practice is to carefully study the rule itself. As of the time of this writing, the federal and state rules are nearly identical. Fed.R.Civ.P. 30(b)(6) rule states:

Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

There are four key points to notice in this text: (1) the notice names a corporation or other entity by name and does not identify any individual persons; (2) it is up to the entity responding to the notice to designate one or more persons to testify on the topics set forth in the notice (which is usually a separate attachment); (3) the subpoena must advise non-parties of their obligations under the Rule; and (4) the persons designated must make themselves personally aware, not only of what the organization knows about the designated topics, but also of what information is “available’ to the organization.

Rule 32(a)(3)

The most common usage of Rule 30(b)(6) is to depose parties. Therefore, it is important to read that rule together with Rule 32(a)(3), which states:

Notice or Subpoena Directed to an Organization. Deposition of Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).

One issue that arises in connection with the use of a Rule 30(b)(6)  deposition of a party is whether the testimony being offered, either at trial per the rule above, or in connection with a motion relying the testimony of a party for purpose of an evidentiary admission (which could be the basis of a jury instruction on the same), is whether the testimony falls within a topic specified in the notice of deposition. If the testimony does not fall within a topic listed in the notice, it will be treated as testimony given in an individual rather than representative capacity behalf of the entity being deposed; it will therefore not be binding upon the corporate entity, but merely admissible as evidence in support of the proposition to which the testimony applies. This is one reason why the topic list must be thorough and specific.

There have been cases in which a Rule 30(b)(6) witness provided testimony that was potentially outcome-determining (in the form of an undisputed evidentiary admission), but courts did not treat it as such because the testimony was outside of a designated area of subject matter that was (a) within the topic list; and (b) an area of subject matter for which the particular witness was designated to testify under Rule 30(b)(6). The latter of these points is important to keep in mind when one recognizes that an organizational entity may designate one or more persons to respond to the topic list, and the record should be clear which topics a particular designee has been offered to address in testimony.

Additional General References

For additional information, download:

Part 1: Noticing and Taking Rule 30(b)(6) Depositions

This Procedure assumes that the practitioner has already learned practiced the basic skills and techniques associated with the taking of depositions generally, which is a very broad topic that is beyond the scope of this particular Procedure. For that reason, methods of questioning witnesses are covered only to the degree that they are particular to Rule 30(b)(6) depositions. Most of what is covered here pertains to drafting the Notice of Rule 30(b)(6) deposition and its attached topic list, as well as vitally important communications that must occur on the record in seeking dates of availability and issuing the Notice once it has been drafted.

The keys to success in “setting up” a Rule 30(b)(6) deposition are: (1) timing the deposition early in the case; (2) drafting a very thorough notice and topic list; (3) issuing the appropriate correspondence in order to document efforts to clear dates for the deposition; and (4) being prepared to argue and win the inevitable dispute that will be triggered by sending a very thorough topic list with your notice.

The Procedure below contains the language for the various form letters you can send at the appropriate junctures. You may copy that language and paste it into a letter or email, as appropriate. This will save you a great deal of time.

Sample Documents

Below are links to one sample notice and three sample topic lists from different kinds of cases. You will find portions of them worth copying, but do not use these forms without careful thought and revision.

Deposition of insurer related to underwriting and bad faith.

Deposition of insurer related to underwriting and bad faith.

Deposition of shipping company related to improper packaging of door pallet.

Deposition of hangar lessor related to construction defects resulting in collapse.

These samples illustrate that our notices and topic lists are substantially more detailed than what most firms issue. Many firms omit much of the language contained in our notice and topic lists, falling back on much shorter notices, often hastily prepared and limited to a page or less of vague subject matters that do not mention documents and video, and which occasionally omit the required language required by Rule 30(b)(6) which states that a “subpoena must advise a nonparty organization of its duty to make this designation.” By taking more care in the preparation of these documents, we strengthen our position in relation to three vitally important types of disputes that often arise in connection with Rule 30(b)(6) notices:

  • the appropriate scope of questioning in the Rule 30(b)(6) deposition;
  • enforcing compliance with the Rule 30(b)(6) obligation to supply a properly prepared and informed witness; and
  • use of the deposition for purposes other than merely impeaching an individual witness.

An important aspect of our standard Rule 30(b)(6) practice involves the manner in which the deposition is requested. It is common for opposing counsel to intentionally delay and obfuscate the process of setting a Rule 30(b)(6) deposition of his or her client. Because this is a frequently encountered problem, we have developed a multi-stage protocol for documenting our requests to clear dates of availability—the timing of which can be crucial.

Setting and Noticing Rule 30(b)(6) Deposition:

  1. Initial request letter: Send a brief letter or email to opposing counsel indicating your desire to depose the organization, seeking to clear dates and promising a detailed topic list in the near future. This establishes the date of your first formal request, and because this step is not time-consuming, can be done quickly when time is of the essence.

    [INITIAL REQUEST LETTER]

    Dear Counsel,

    The purpose of this letter is to seek dates of availability for a Rule 30(b)(6) deposition of your client, _________________. We are currently preparing the required topic list, but wanted to give you this notice of our desire to clear dates on your calendar for the purpose of this deposition.

    Thank you in advance for your kind attention to this matter.

    Sincerely,

  2. Draft the Topic List with great care, taking into account: (1) all of the issues and sub-issues in the case; (2) the exhibits you plan to use in the deposition; (3) the authenticity and foundational issues related to all exhibits; (4) the contentions and allegations of all parties; (5) the testimony of other witnesses; (6) operative case-law that could be the basis of motions to be decided in part on the basis of the testimony you plan to elicit in the deposition; (7) applicable standards, codes and regulations governing liability in the matter; (8) policies and procedures implemented by parties that may be relevant, including claims procedures, document retention policies, business practices regarding record-keeping; and (9) all other potentially relevant issues.
  3. Prepare the Notice of Deposition, using the templates above as a rough guide.
  4. Transmit the Notice and its attached Topic List (generally attached as “Exhibit A” to the notice) to opposing counsel, with a cover letter very similar to the following:

    [NOTICE COVER LETTER REQUESTING DATES]

    Dear Counsel,

    Attached please find our Notice of Deposition of ___________, pursuant to Federal Rule of Civil Procedure 30(b)(6). We also ask that you identify, as soon as possible, each designee and the subject matter about which said designee will be designated to testify. As you know, federal law requires a corporate designee (or designees) to exercise reasonable diligence in the acquisition of information known by the corporation, in order to speak on behalf of the corporation, in such a deposition. We ask that you ensure that the appropriate designee(s) exercise such diligence. If you have any questions concerning the meaning or content of the Exhibit to the Notice in which the subject matter categories are described, please let me know. Otherwise, I believe you will find the definitions and phraseology clear and self-explanatory, though intentionally somewhat broad. Clearly, it is our intent to inquire of your corporate client all potentially relevant issues in relation to the instant litigation.

    Please provide us with several dates of availability for both you and the corporate designee(s). Thank you in advance for your attention to this matter.

    Sincerely,

  5. Issue the Notice: If you do not receive dates of availability within 1 week, serve the notice with an accompanying letter very similar to this:

    [NOTICE COVER LETTER IF NO DATES SUPPLIED BY OPPONENT]

    Dear Counsel,

    We have made a reasonable request to clear dates for a Rule 30(b)(6) deposition of your client but have not been provided with dates that are clear on your calendar; having not heard from you in response to our earlier correspondence, attached herewith is our Notice of Deposition. If you face any difficulties in connection with the date specified in this Notice, we will consider changing the date of the deposition, provided that doing so does not alter the order of the depositions or cause difficulty in relation to scheduling constraints or deadlines.

    Sincerely,

  6. Colate Exhibits: Finalize your collection of exhibits to use in the deposition, and ensure that they have all been produced with Document Control Numbers (DCNs or “Bates numbers”) applied. You may be utilizing the paperless exhibit procedure, and if you are, send the requisite letter specified in that procedure in order to avoid needless copying and hauling of volumes of paper.
  7. Final Preparation: Finalize your deposition preparation shortly before the deposition.

Part 2: Defending Rule 30(b)(6) Depositions

After receiving a Rule 30(b)(6) deposition notice, the organization’s counsel should carefully review the notice to ensure that it is proper and identifies the topics for deposition with reasonable particularity.

The best way of defending a Rule 30(b)(6) deposition is to thoroughly prepare the witness. Some lawyers rely upon obstructive tactics such as resisting the scheduling of the deposition, speaking objections during the deposition (which are covered by potentially different standards than other discovery depositions), attempting to coach a witness on the record and other disruptive tactics. These are all amateur approaches, and often tend to backfire. More importantly, they are ineffective when used against well-trained litigators who know how to deal with these tactics.

Procedure for defending Rule 30(b)(6) depositions:

  1. Seek Topic List: Immediately upon being informed that a Rule 30(b)(6) deposition is sought, unless opposing counsel has already provided a topic list, make a written request to opposing counsel for a designation of topics, using language similar to the following:

    [REQUEST FOR TOPIC LIST]

    Dear Counsel,

    In response to your request for a Rule 30(b)(6) deposition, we ask that you supply us with a statement identifying with “reasonable particularity the matters for examination” so that we may “then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf [and] set out the matters on which each person designated will testify” as provided by the Rule.

    The scope of the deposition, as defined by the list of topics for examination specified in your notice, will control our choice of whom to designate and the scheduling of the deposition. As soon as possible after receiving the list of topics, we will provide you with a designation of witnesses responding to various subjects and dates of availability.

    Thank you in advance for your assistance in this regard.

    Sincerely,

  2. Notify the Client of the request, and inform the client of the status of our request for disclosure of the topics of examination as a prerequisite for designating responding witnesses on a per-topic basis and supplying dates of availability. This advisement can be made orally, but must be documented in writing as a follow-up.
  3. Review the Notice and Topic List: Determine that the notice is proper and identifies the topics for the deposition with reasonable particularity; ensure that no topics are likely to infringe upon any claim of privilege and that the scope of the notice is not overly broad (see, for example, the caselaw in the Rapid-Access Caselaw Grid above for citations providing guidance on that issue).
  4. Immediately Advise Client of Topics and Duty to Designate and Supply Properly Prepared Witness. Regardless of whether you plan to object to the Notice or Topic List, begin working with the client to designate knowledgeable witnesses as soon as possible. Keep the client informed of the status of any objection or motion you file to limit the examination, but proceed on the assumption that your position will be overruled by the court and use the time you have to prepare to respond. Send the client a letter containing the following language:

    [CLIENT DUTY NOTICE LETTER]

    Dear __________________,

    As you know, we have received a formal request for a Rule 30(b)(6) deposition of your organization. I have attached the Notice of Deposition, which lists the subject matters of the deposition, to this letter for your reference.

    What is a Rule 30(b)(6) Deposition?

    A Rule 30(b)(6) deposition is a deposition of an organization as a legal entity, and requires that the organization provide one or more persons who can knowledgeably testify regarding “all matters known or reasonably available to the organization” in relation the topics identified in the notice with reasonable particularity. Responding to a Rule 30(b)(6) Notice of Deposition is a procedure that must be handled by an organization with great care.

    The courts have held that the obligations of a party responding to a Rule 30(b)(6) notice can be burdensome, and have warned that these responsibilities must be taken seriously in order to avoid sanctions imposed by the court.

    Cases are often won and lost on the basis of what happens in Rule 30(b)(6) depositions. They key to success in this phase of the litigation is meticulous preparation, which includes ensuring that our firm has been provided by you with all documents that relate to the subject matters listed in the deposition notice, as well as those that respond to the requests for production that are submitted by the opposition as part of their written discovery requests. Of course, this includes all documents we have provided in our Initial Disclosures shortly after the case commenced.

    What Are We Required To Do?

    The Rule permits us to designate whomever we choose to testify in response to each of the topics listed. We are not required to provide only one person for this purpose; we could theoretically designate a separate individual for each topic listed by opposing counsel. Furthermore, the person or persons whom we designate to testify do not have to be employed by the organization. We may, if we wish, hire outside personnel—including separately retained legal counsel—to testify as a designated representative of your organization.

    The law requires that the person or persons we designate to testify on various topics must be informed regarding all of the information reasonably available to an organization, which may require the testifying individuals to review a great number of documents, interview present and past employees and take whatever other steps may be necessary to comply with the requirement stated above. Courts have entered monetary sanctions and dismissed claims and defenses to punish organizations when these requirements are not followed.

    We are also at liberty to claim that, after reasonable inquiry, the organization has no knowledge regarding specific topics or subjects, but if we do so, we may be precluded from offering any testimony on our own behalf on any such issue; except that we may provide notice that while we have no organizational knowledge available on particular subjects, we reserve the right to call “outside” witnesses who may have knowledge on various subjects that are outside of what is reasonably available to the organization. Generally, however, if the topic is one of importance in the litigation, it is best for us to inform and prepare a witness to testify on that topic in order to avoid being foreclosed from offering evidence on that subject at trial or in pre-trial proceedings.

    Selection of Designee(s)

    With the above concepts in mind, we not only need to determine who to designate for each of the topics listed in the notice, but also schedule time to prepare such individuals for their depositions.

    Once we decide who to designate, it is useful to schedule one or more days for that person to meet with us in person to undergo this careful preparation. In some cases, several days may be necessary for this purpose, depending upon the complexity of the case, the scope of the notice topics and the amount at stake in the litigation.

    When we prepare witnesses in person, we typically project (on large monitors or projection screens) outlines and key documents, following a careful structure, but please note we are very reluctant to provide those preparation materials in advance; we have learned that when even the most sophisticated corporate personnel review these items without the benefit of live explanations, serious misunderstandings arise. Therefore, for now, the best thing for you and your team to review is the deposition notice itself, documents in your possession that relate to the topics listed in the notice, and this letter.

    Selection of Designee(s) to Testify

    It will be important for us to interview the potential designees who may testify on behalf of your company to ensure that we are selecting someone who will present well at trial. Depositions of this kind are often videotaped, so the appearance, mannerisms and personality of the witness plays a role in whom to designate. Verbal fluency, knowledge of the subject matter, speed of learning, willingness to participate and past experience with both the subject matter of the suit and previous litigation are all factors to consider in making this determination.

    Once we determine who will be offered to testify to each of the listed topics, we will need to schedule ample time to prepare the witness or witnesses we decide to designate—never less than one full day, and in some cases a week or two may be needed, depending upon the complexity of the case and the amount in controversy.

    Conclusion

    In order to do well in responding to this notice, we must select the proper designee(s) to testify; your staff must exercise diligent effort to locate and provide us with all documents that pertain to the topic list; the designee must meet with us to prepare and confer with past and present employees with personal knowledge of facts related to the topics listed in the notice and spend adequate time working with us to become prepared to testify.

    If we do these things, we should do well in exercising our legal duty to comply with the our obligations under Rule 30(b)(6), which will significantly influence our likelihood of success at trial.

    My staff and I will be speaking at length regarding this topic in the near future, and I look forward to helping you do what is necessary to comply with the stringent legal obligations imposed under Rule 30(b)(6).

    Please feel free to contact me at any time with any questions you may have regarding this deposition.

    Thank you in advance for your valuable assistance.

    Sincerely,

  5. Object: If the Notice or Topic List are objectionable, serve written objections (in the form of a letter on Firm letterhead), specifically setting out appropriate objections if any of the noticed topics are (1) vague; (2) over-broad; (3) excessive or unreasonably burdensome in light of the proportionality requirements of Rule 26; (4) privileged; (5) not reasonably calculated to lead to discovery of admissible information; or (6) calls for the production of confidential or proprietary information (in which case a protective order will be needed). [Note: there may be a basis to object to the time or place of the deposition, which will require research beyond the scope of what is covered above in this Procedure.] Some language to use in the objection is found below;

    EXAMPLE: WRITTEN OBJECTION
    (Edit carefully before using.)

    Dear Counsel,

    The purpose of this letter is to provide formal notice of our objection to your notice of a Rule 30(b)(6) deposition of our client. We seek to confer with you in good faith regarding the subject of these objections, which are as follows:

    Topic 3 is overly vague and ambiguous, and does not provide reasonable particularity regarding the defined scope of the inquiry. There is no discernible end-point to the extent of preparation that could be required by a compliant designee, and the topic as stated could be read a number of different ways.

    [Cite case law.]Topic 4 is likely to invade the attorney-client communication privilege. Subject to your agreement that no privileged attorney-client communications are sought in regard to this topic, we will agree to respond accordingly.[Cite case law.]As mentioned above, I would like to discuss this matter with you in detail before seeking judicial intervention, in the hope that we can reach one or more stipulations that would resolve the issue. We hope to obtain your agreement to issue an amended notice, as a mere letter agreement has been held by some courts to be insufficientThank you for your assistance in this regard.

    Sincerely,

Confer in Good Faith: Discuss the issue with opposing counsel and seek to reach an agreement regarding the Notice or Topic List and confirm any such agreement in writing. [Note: Some judges require the responding party to file a non-opposed motion for a protective order unless opposing counsel agrees to issue an amended notice or topic list that reflects the agreements reached during the conferral process. Magistrate Judge Craig Shaffer is one such judge.]

  • File for a Protective Order: If you are unable to reach a satisfactory agreement with opposing counsel, or if opposing counsel issues correspondence that appears to contradict what you believe was the satisfactory agreement (which we call “waffling, reneging or confusing the issue to reneg on an oral stipulation”), then file a motion for a protective order. [Note: many courts require a telephonic advisement rather than filing a motion without informal court contact. In Colorado, Local Rule 121 § 1-12(1) was amended in 2016 to specify that “If the court directs that any discovery motion under Rule 26(c) be made orally, then movant’s written notice to the other parties that a hearing has been requested on the motion shall stay the discovery to which the motion is directed.”]
  • Prepare the Witness: Schedule ample time to prepare the witness—never less than one full day, and in some cases a week or two may be needed, depending upon the complexity of the case and the amount in controversy. Below is a link to download the template of a Keynote presentation we often use to prepare witnesses for the deposition.  Be sure to edit and add to the presentation to meet the requirements of your specific deposition, and add as many slides as necessary. Before using the presentation below, be sure to replace boxes outlined in red with carefully prepared information specifically applicable to your case.  Also, be sure to have the means to rapidly access and present all relevant documents, in the order they arise under the Topic List.

Rapid-Access Case Law Grid

Click the topics below to find useful references and citations to caselaw that can be stated on the record. For purposes of motions practice, or specific disputes for which you have ample time to prepare, perform additional and more detailed research.

Pre-Deposition Objections

Overbroad notice

Since the Rule itself requires that topics be defined with “reasonable particularity,” this court sees no reason to graft the word “painstaking” to what is otherwise the clear directive of the Rule that the topic definitions be “reasonable.” Nevertheless, under either standard, an overbroad 30(b)(6) notice “subjects the noticed party to an impossible task” and therefore will not be allowed. Cotton v. Costco Wholesale Corp., 2013 WL 3819975, at *1 (D. Kan. July 24, 2013).

Further, the recent revisions to Rule 26 emphasize that the information sought must be “proportional to the needs of the case.” Fed. R. Civ. Proc. 26(b). See also, e.g., ChriMar Systems v. Cisco Systems, 312 F.R.D. 560, 564 (N.D. Cal. Jan. 12, 2016) (refusing to order deponent for 30(b)(6) where topics were overbroad and noting that proportionality was “especially true in light of the recently revised Federal Rule of Civil Procedure 26(b)(1)”). See also E.E.O.C. v. Vail Corp, 2008 WL 5104811, *1 (D. Colo. Dec. 3, 2008) (proposed Rule 30(b)(6) deposition “unduly broad and burdensome” where testimony would span far more than the allotted seven hours).

Crocs, Inc. v. Effervescent, Inc., 06-CV-00605-PAB-KMT, 2017 WL 1325344, at *2 (D. Colo. Jan. 3, 2017), objections overruled, 06-CV-00605-PAB-KMT, 2017 WL 1325171 (D. Colo. Feb. 24, 2017)

Proportionality

“All discovery is subject to the [proportionality] limitations imposed by Rule 26(b)(2)(c).” Lynn, 285 F.R.D. at 355. [citing Lynn v. Monarch Recovery Mgmt, Inc., 285 F.R.D. 350, 360 (D.Md.2012).] Any application of the proportionality factors must start with the actual claims and defenses in the case, and a consideration of how and to what degree the requested discovery bears on those claims and defenses. To the extent that Rule 26(g) incorporates proportionality factors and imposes a mandate on counsel to “stop and think,” counsel (and ultimately the court) first must consider whether the desired information is relevant to the claims and defenses in the action, and then ask whether the proposed discovery is proportional to the needs of the case or unduly burdensome or expensive based upon an assessment of various factors. See, e.g., Audiotext Communications v. U.S. Telecom, Inc., No. 94–2395–GTV, 1995 WL 18759, at *1 (D.Kan. Jan 17, 1995) (discovery “[r]equests which are worded too broadly or are too all inclusive of a general topic function like a giant broom, sweeping everything in their path, useful or not”). See also Thompson v. Department of Housing and Urban Development, 199 F.R.D. 168, 171 and 173 (D.Md.2001) (in denying plaintiffs’ motion to compel, the court noted that “despite the obvious utility of the Rule 26(b)(2) factors in tailoring discovery to accommodate fair disclosure without imposing undue burden or expense, they have tended largely to be ignored by litigants;” “the parties are expected to focus *570 their discussions not on their scope difference under Rule 26(b)(1), but instead on a particularized analysis of the burden/benefit factors of Rule 26(b)(2);” “[t]his means that the parties must set aside their differences as adversaries and make a good faith effort to reach common ground on the disputes”).

Plaintiff alleges, in her Complaint, that she spoke by telephone with a GC Services employee on March 21, 2013, that she put GC Services on notice that she was disputing her Sprint account, and that during the same call the GC Services employee made certain false representations. Plaintiff further contends that after March 21, 2013, Defendant never communicated to Experian, Equifax or Transunion that she was disputing her Sprint account. The March 21, 2013 call was recorded and Plaintiff has been given a copy of that recording. Defendant concedes that it never told the credit reporting bureaus that Ms. Witt’s account was disputed, because (according to Defendant) Plaintiff did not make such an assertion during the March 21st call. It is also clear that Ms. Witt’s personal recovery in this case is limited to no more than $1,000, notwithstanding her counsel’s ability to recover reasonable fees and costs if she prevails. Those are the circumstances that frame the court’s proportionality analysis in this case.Plaintiff’s counsel insists that he needs additional information in response to his written discovery in order to frame a Rule 30(b)(6) deposition notice. Yet, after three iterations of discovery responses, I am loath to require additional answers to unfocused or broadly drafted interrogatories and requests for production. Rule 26(b)(2)(A) states that I must limit the frequency or extent of discovery if I find, inter alia, that the discovery “can be obtained from some other source that is more convenient, less burdensome, or less expensive.”

Given counsel’s intention to depose a GC Services representative, the clarification or additional information Ms. Witt seeks with this motion can be reflected in a Rule 30(b)(6) notice and explored during the subsequent Cf. United States ex rel. Fago v. M & T Mort. Corp., 235 F.R.D. 11, 25 (D.D.C.2006) (concluded there was “no added benefit to compelling the same information through a Rule 30(b)(6) deposition because, like Rule 30(b)(6) deposition testimony, an interrogatory can be served on and answered by a corporation via its officers and agents”); Banks v. Office of the Senate Sergeant–At–Arms, 222 F.R.D. 7, 19 (D.D.C.2004) (emphasizing the court’s expectation that “the parties [will] find topics that will insure that the 30(b)(6) depositions are meaningful exercises in ascertaining information that has not been previously discovered or are necessary to ascertain the positions [defendant] took or takes as to factual and legal issues that have arisen”). Inherent in any proportionality analysis is the expectation that litigants will use the available discovery tools in an efficient and cost-effective manner. While a party is entitled to discover relevant information under Rule 26(b)(1), counsel is not entitled to unnecessarily or repeatedly plow over old ground.

Witt v. GC Servs. Ltd. P’ship, 307 F.R.D. 554, 569–70 (D. Colo. 2014)

Grounds for Entry of Protective Order or Quashing Subpoena

In considering whether information is subject to discovery, the court exercises its discretion while balancing the interests and burdens of all parties. The general test of discoverability is whether the information sought by a discovery request is “relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). This is a broad standard meant to allow the parties to discover the information necessary to prove or disprove their cases. Bagher v. Auto-Owners Insurance Company, No. 12–cv–00980–REB–KLM, 2013 WL 5417127, at *5 (D. Colo. Sept. 26, 2013). Upon a showing of “good cause” by the proponent of discovery, an even broader standard of “any matter relevant to the subject matter involved in the action” may be applied. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1188 (10th Cir. 2009). Despite the presumptive discoverability of relevant, non-privileged information, when the relevance of a discovery request is not apparent on the face of the request itself, the proponent of discovery bears the burden of making an initial, rebuttable showing of relevance. Thompson v. Jiffy Lube Int’l, Inc., No. 05–1203–WEB, 2007 WL 608343, at *8 n.20 (D. Kan. Feb. 22, 2007).

The proper scope of discovery is further bounded by the principles of proportionality. Fed. R. Civ. P. 26(b)(2)(C); see also Qwest Commc’ns Int’l v.Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003). Indeed, Rule 26(b)(2)(C) allows a court to limit discovery on motion or on its own if it determines that: (1) the discovery sought is unreasonably cumulative or duplicative, or may be obtained from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (3) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(a)(2)(C).

A trial court may find that discovery into matters not relevant to the case imposes a per se undue burden. McBride v. Medicalodges, Inc., 250 F.R.D. 581, 586– 87 (D. Kan. 2008) (finding topics in a 30(b)(6) notice irrelevant and granting a protective order as to those topics). A protective order may “forbid [ ]” inquiry into certain matters, or “limit[ ]” the scope of disclosure or discovery to certain matters.” Fed. R. Civ.P. 26(c)(1)(D).

Applying these principles, the court considers the appropriate scope of depositions, under Rule 30(b)(6) or Rule 45 of the Federal Rules of Civil Procedure. In doing so, the court reviews the Rule 30(b)(6) topics as articulated. For a Rule 30(b)(6) deposition to function effectively, “the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.” Berwick v. Hartford Fire Ins. Co., No. 11–cv–01384–MEH–KMT, 2012 WL 573939, at *2 (D. Colo. Feb. 21, 2012). If a 30(b)(6) deposition notice includes topics that as framed suggest that a party’s contemplated inquiries are likely to unduly intrude on privileges or other protections belonging to some other party, the court may within its discretion enter a protective order limiting the scope of such topics, or precluding inquiry as to them altogether. See, e.g., SEC v. Morelli, 143 F.R.D. 42, 47 (S.D.N.Y.1992) (entering order precluding corporate representative testimony on topics that in the court’s view “constitute[d] an impermissible attempt by defendant to inquire into the mental processes and strategies of the [party subject to 30(b)(6) notice]”). Similarly, pursuant to Rule 45(c)(3)(A)(iii) and (iv) of the Federal Rules of Civil Procedure, “[o]n timely motion, the issuing court must quash or modify a subpoena that (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.

Gebremedhin v. Am. Family Mut. Ins. Co., 113CV02813CMANYW, 2015 WL 4272716, at *3–4 (D. Colo. July 15, 2015), objections overruled, 13-CV-02813-CMA-NYW, 2015 WL 12967849 (D. Colo. Aug. 18, 2015); reiterated verbatim in Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 10-CV-02139-MSK-NYW, 2015 WL 3635422, at *4 (D. Colo. June 11, 2015)(Kreiger, J.).

If the notice generally lacks specificity or is otherwise replete with defects that are susceptible to correction, then courts often quash the entire notice and provide leave for the notice to be re-issued consistent with the court’s opinion. See Murphy v. Kmart Corp., 255 F.R.D. 497, 518 (D.S.D. 2009); Reed v. Bennett, 193 F.R.D. 689, 693 (D.Kan. 2000); Gulf Production Co. Inc. v. Hoover Oilfield Supp., Inc., 2011 WL 2669294 (E.D. Louisiana 2011). If, however, the protective order is being sought on grounds that cannot readily be cured with an amended notice – then the court may quash the notice in its entirety, and without leave to re-issue the notice. See SEC v. Buntrock, 217 F.R.D. 441, 444, 448 (N.D.Ill. 2003)(quashing a 30(b)(6) notice which was “an inappropriate attempt to depose opposing counsel…”). If only specific topics are problematic, then consider moving to quash only those specific topics in the hope that they will be excised from the notice without leave to re-issue them in a modified form. See e.g. Chechele v. Ward, 2012 WL 4383405, *4 (W.D.Okl. Sept. 25, 2012).

Improper location for deposition
The law on this issue is split, and situationally dependent. For an excellent law review article, download Article: 23 Mem. St. U. L. Rev. 763 (1963) The Proper Location of Party-Depositions Under the Federal Rules of Civil Procedure

Responding Party’s Duty

Provide knowledgeable witnesses

FEDERAL LAW:

The law is well-settled that corporations have an “affirmative duty” to make available as many persons as necessary to give “complete, knowledgeable, and binding answers” on the corporation’s behalf. Reilly v. NatWest Mkt. Group Inc., 181 F.3d 253, 268 (2d Cir.1999) (internal quotation marks omitted; quoting Sec. & Exch. Comm’n v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y.1992)); see Fed.R.Civ.P. 30(b)(6) (“organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf” (emphasis added)).

This duty is not negated by a corporation’s alleged lack of control over potential Rule 30(b)(6) deponentsSee Resolution Trust Corp. v. S. Union Co., Inc., 985 F.2d 196, 197 (5th Cir.1993) (noting that Rule 30(b)(6) places the burden of identifying responsive witness for corporate deposition on corporation); Roger Fendrich and Kent Sinclair, Discovering Corporate Knowledge and Contentions, 50 Ala. L.Rev. 651, 665 (1999) (noting that “[a]ny witness who can gather responsive information may be designated by the company” *1147 and that, in “one common scenario,” corporations designate individuals who “lack[ ] personal knowledge” of the events giving rise to the litigation but who have otherwise been educated about it).

Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146–47 (10th Cir. 2007)

COLORADO LAW:

When choosing a C.R.C.P. 30(b)(6) designee, companies “have a duty to make a conscientious, good-faith effort to designate knowledgeable persons” and “to prepare them to fully and unevasively answer questions about the designated subject matter.” Starlight Int’l Inc. v. Herlihy, 186 F.R.D. 626, 639 (D.Kan.1999) (citing Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D.Neb.1995)). Some courts have concluded that the rule “implicitly requires persons to review all matters known or reasonably available” to the corporation. Sprint Commc’ns *1168 Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 528 (D.Kan.2006) (quoting T & W Funding Co. XII, L.L.C. v. Pennant Rent–A–Car Midwest, Inc., 210 F.R.D. 730, 735 (D.Kan.2002)). Thus, personal knowledge of a matter by the designee is not required. T & W Funding, 210 F.R.D. at 735; see also Calzaturficio S. C.A.R.P.A. v. Fabiano Shoe Co., 201 F.R.D. 33, 36 (D.Mass.2001); Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C.1989).

“[T]he Rule makes clear that a party is not permitted to undermine the beneficial purposes of the Rule by responding that no witness is available who personally has direct knowledge concerning the areas of inquiry.” Sprint Commc’ns, 236 F.R.D. at 528. Indeed, the company should, if necessary, “prepare deponents by having them review prior fact witness deposition testimony as well as documents and deposition exhibits.” United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C.1996). Allowing a company to designate a witness who is unprepared or not knowledgeable would simply defeat the purpose of the rule and “sandbag” the opposition. Id.; see also King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D.Fla.1995) (noting that the rule delineates an affirmative duty—“The corporation has an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are ‘known or reasonably available’ to the corporation.”), aff’d, 213 F.3d 646 (11th Cir.2000) (unpublished table decision); T & H Landscaping, LLC v. Colo. Structures, Inc., (D.Colo. No. 06–cv–00891–REB–MEH, Aug. 28, 2007) (unpublished order on motion to compel) (noting that the requirement to produce a witness negates the potential for the party seeking discovery to be shuffled back and forth from one corporate representative to another).

Where a corporation designates a deponent who appears but is unable to answer all the questions specified in the notice, a court may issue sanctions for failure to appear under C.R.C.P. 37. Mun. Subdistrict v. OXY, USA, Inc., 990 P.2d 701, 710 (Colo.1999). Indeed, when the corporation fails to designate the proper person, “the appearance is, for all practical purposes, no appearance at all.” Resolution Trust Corp. v. Southern Union Co., 985 F.2d 196, 197 (5th Cir.1993).

Although the necessity of producing a prepared and knowledgeable witness may be burdensome to a corporation, the burden is not unreasonable because it is the natural result of the privilege of using the corporate form to conduct business. Requa v. C.B. Fleet Holding Co., (D.Colo. No. 06–cv–01981–PSF–MEH, July 31, 2007) (unpublished order on motion to compel); see also Flower v. T.R.A. Indus., Inc., 127 Wash.App. 13, 111 P.3d 1192, 1205 (2005) (a corporation must prepare witnesses to “give complete, knowledgeable and binding answers on behalf of the corporation” (footnote omitted) (quoting Marker, 125 F.R.D. at 126)).

D.R. Horton, Inc.-Denver v. D & S Landscaping, LLC Colorado, 215 P.3d 1163 (Colo.App. 2008)

Failure to prepare witness

Rule 30(b)(6) implicitly requires the designated entity representative to review all matters known or reasonably available to it in preparation for the Rule 30(b)(6) deposition. Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279, *3 (D.Kan.2007). This interpretation is necessary in order to make the deposition meaningful. “Inadequate preparation of a Rule 30(b)(6) designee can be sanctioned based on the lack of good faith, prejudice to the opposing side, and disruption of the proceedings.Starlight Int’l. v. Herlihy, 186 F.R.D. 626, 639 (D.Kan.1999); Payless Shoesource Worldwide, Inc. v. Target Corp., 2007 WL 1959194, *1 (D.Kan.2007).

In re Application of Michael Wilson & Partners, CIV A 06-CV-02575-MSK-KMT, 2009 WL 1193874, at *3 (D. Colo. Apr. 30, 2009), aff’d sub nom. In re Michael Wilson & Partners Ltd., 06-CV-02575-MSK-KMT, 2011 WL 3608037 (D. Colo. A ug. 16, 2011).

Rule 30(b)(6) specifically provides that “[t]he persons designated must testify about information known or reasonably available to the organization.” Fed.R.Civ.P. 30(b)(6) (2010) (emphasis added). Rule 30(b)(6) places the burden upon the deponent to “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. Harris v. New Jersey, 259 F.R.D. 89, 92 (D.N.J.2007) (citing Mitsui & Co. (U.S.A.), Inc. v. Puerto Rico Water Res. Auth., 93 F.R.D. 62, 67 (D.P.R.1981)). The duty of preparation goes beyond matters personally known to the designee or to matters in which the designee was personally involved, and if necessary the deponent must use documents, past employees or other resources to obtain responsive information. Id. (citing Taylor, 166 F.R.D. at 361).

Biax Corp. v. Nvidia Corp., 09-CV-01257-PAB-MEH, 2010 WL 4038728, at *3 (D. Colo. Oct. 14, 2010).

The fact that much of the factual information may only be known by former employees does not relieve the corporation from preparing and providing someone competent to testify. [I]t is not uncommon to have a situation, as in the instant case, where a corporation indicates that it no longer employs individuals who have memory of a distant event or that such individuals are deceased. These problems do not relieve a corporation from preparing its Rule 30(b)(6) designee to the extent matters are reasonably available, whether from documents, past employees, or other sources. Of course, just like in the instance of an individual deponent, the corporation may plead lack of memory. However, if it wishes to assert a position based on testimony from third parties, or their documents, the designee must still 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 corporations contentions. Rather, the corporation may designate a person to speak on its behalf and it is this position which the attorney must advocate.

United Technologies Motor Systems, Inc. v. Borg-Warner Automotive, Inc., 50 U.S.P.Q.2d 1060, 1061–62, 1998 WL 1796257 (E.D. Mich. 1998) (quoting United States v. J.M. Taylor, 166 F.R.D. 356, 361–62 (M.D.N.C. 1996)).

Regarding former employees, see also, Annotation: 7 Annotated Patent Digest § 41:86.25 30(b)(6) deposition of corporation —Knowledge held mostly by former employees.

Failure to move for protective order

See EEOC v. Thurston Motor Lines, Inc., 124 F.R.D. 110, 114 (M.D.N.C.1989) (imposing Rule 37 sanctions on successor to corporate party served with Rule 30(b)(6) notice because [respondent] “had absolutely no right … to refuse to designate a witness. If it had an objection to discovery, its opportunity was to request a protective order….”). Cf. Fed.R.Civ.P. 30(b)(6) advisory committee’s note, 1970 amendments (noting availability of protective orders to curb possible excesses in corporate discovery practices and specifically stating that “a court’s decision whether to issue a protective order may take account of the availability and use made of the procedures provided in this *1148 subdivision”).

Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1147–48 (10th Cir. 2007)

It is a common misperception – even among seasoned lawyers – that serving written objections to a 30(b)(6) notice is sufficient to protect the client from an improper notice. It is not. Such objections are essentially useless. “The proper procedure to object to a Rule 30(b)(6) deposition notice is not to serve objections on the opposing party, but to move for a protective order.Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 406 (E.D.N.C. 2014). A corporate deponent cannot simply make “objections and then provide a witness that will testify only within the scope of its objections.Id. “Unlike the procedure with respect to interrogatories, requests for production of documents and requests for admissions, there is no provision in the rules which provides for a party whose deposition is noticed to serve objections so as to be able to avoid providing the requested discovery until an order compelling discovery is issued.New England Carpenters Health Benefits Fund v. First Databank, Inc., 242 F.R.D. 164, 165-166 (D.Mass. 2007).

Lack of control—no defense to compliance

The law is well-settled that corporations have an “affirmative duty” to make available as many persons as necessary to give “complete, knowledgeable, and binding answers” on the corporation’s behalf. Reilly v. NatWest Mkt. Group Inc., 181 F.3d 253, 268 (2d Cir.1999) (internal quotation marks omitted; quoting Sec. & Exch. Comm’n v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y.1992)); see Fed.R.Civ.P. 30(b)(6) (“organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf” (emphasis added)).

This duty is not negated by a corporation’s alleged lack of control over potential Rule 30(b)(6) deponents. See Resolution Trust Corp. v. S. Union Co., Inc., 985 F.2d 196, 197 (5th Cir.1993) (noting that Rule 30(b)(6) places the burden of identifying responsive witness for corporate deposition on corporation); Roger Fendrich and Kent Sinclair, Discovering Corporate Knowledge and Contentions, 50 Ala. L.Rev. 651, 665 (1999) (noting that “[a]ny witness who can gather responsive information may be designated by the company” *1147 and that, in “one common scenario,” corporations designate individuals who “lack[ ] personal knowledge” of the events giving rise to the litigation but who have otherwise been educated about it).

We also note that, insofar as lack of control is a consideration in the operation of Rule 30(b)(6), this absence of control is not established by an individual’s status as a corporate officer or director. See Fed.R.Civ.P. 30(b)(6) & advisory committee’s note, 1970 amendment (evincing that “officers, directors, or managing agents” are typical Rule 30(b)(6) designees and others may be designated “but only with their consent”). Indeed, the 1970 amendments to Rule 30 expressly removed the previous distinction between directors, on one hand, and managing agents and officers, on the other; a corporation now is deemed to have legal control over its directors, like its managing agents and officers, for deposition purposes. Id.; see also 8A Charles Alan Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice & Procedure § 2103, at 37–39 (1994) (discussing the effects of the complimentary 1970 amendments to Rule 30(b) and Rule 37(d) that, respectively, rejected the notion that a corporation lacks “power over its directors,” and, therefore, mandated that a “corporation is responsible for producing its … directors if notice is given” (emphasis added)).

Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146–47 (10th Cir. 2007)

Non-Responsive Answers
The appropriate course of action, although little-known and seldom used, derives from Federal Rule of Civil Procedure 32, which governs the use of depositions in court proceedings. Pursuant to Rule 32, certain objections are waived if they are (1) not timely made during the deposition and (2) are to “the form of a question or answer . . . or other matters that might have been corrected at that time.” Fed. R. Civ. P. 32(d)(3)(B) (emphasis added); accord Ohio Civ. R. 32(D)(III)(b) (“Errors and irregularities occurring at the oral examination . . . in the form of the questions or answers . . . and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.”) (emphasis added). Typically, attorneys read pertinent portions of Rule 32 to require objections only to the form of questions during a deposition; however, upon a closer reading of the Rule, it is evident that it requires objections to the form of the answers as well. Further, Rule 32 not only provides that objections to the form of the answers are proper, but also that an attorney waives such objections if not timely made during a deposition. NGM Ins. Co. v. Walker Constr. & Dev., LLC, No. 1:11-CV-146, 2012 U.S. Dist. LEXIS 177161, *7 (E.D. Tenn. Dec. 13, 2012) (“[A]ny objection based on the form of the question or answer is waived [if not made during the deposition]. This includes . . . non-responsive answer[s] . . . and witness’ answers that were beyond the scope of the question.”); accord Horner v. Mignerey, No. L-76-074, 1977 Ohio App. LEXIS 9469, *10 (Ohio Ct. App. Jan. 28, 1977) (“Motions to strike answers elicited from a witness by a cross examining attorney, where the objection or motion to the answers was not made at the taking of the deposition, are waived by the cross examining attorney and such objections to answers cannot be made for the first time at the trial.”).

Use of Testimony

Judicial vs. Evidentiary Admissions
The Tenth Circuit addressed for the first time the effect of Rule 30(b)(6) party testimony in the context of the issue of whether such testimony is a judicial admission or an evidentiary admission, holding as follows:

The Tenth Circuit has “not addressed whether the testimony of a Rule 30(b)(6) representative qualifies as a judicial or evidentiary admission.” Templeton v. Catlin Specialty Ins. Co., 612 Fed.Appx. 940, 959 n. 19 (10th Cir. 2015) (unpublished) (declining to decide the issue because the subject of the testimony was actually a question of law and therefore the 30(b)(6) witness’s testimony did “not create a triable issue of fact”). We have noted, however, that like Moore’s Federal Practice treatise, the “majority of courts to reach the issue … treat the testimony of a Rule 30(b)(6) representative as merely an evidentiary admission, and do not give the testimony conclusive effect.” Id.; see Keepers, Inc., 807 F.3d 24, 34–35 (“[The plaintiff] rightly notes that an organization’s deposition testimony is ‘binding’ in the sense that whatever its deponent says can be used against the organization. But Rule 30(b)(6) testimony is not ‘binding’ in the sense that it precludes the deponent from correcting, explaining, or supplementing its statements.” (footnote omitted)); A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001) (“[T]estimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes.” (quoting Indus. Hard Chrome, Ltd. v. Hetran, Inc., 92 F.Supp.2d 786, 791 (N.D. Ill. 2000))); *1261 S. Wine & Spirits of Am., Inc. v. Div. of Alcohol & Tobacco Control, 731 F.3d 799, 811 (8th Cir. 2013) (“A 30(b)(6) witness’s legal conclusions are not binding on the party who designated him, and a designee’s testimony likely does not bind [its employer] in the sense of a judicial admission.” (citation omitted)).

We agree with our sister circuits that the testimony of a Rule 30(b)(6) witness is merely an evidentiary admission, rather than a judicial admission. Accordingly, the jury instruction given correctly states the governing law, and the district court did not abuse its discretion in omitting VMR’s proposed final sentence. Suntar Roofing, Inc., 897 F.2d at 473.

Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251, 1260–61 (10th Cir. 2016)

Instruction Not To Answer

When Appropriate

A party may instruct a deposition witness not to answer when necessary to preserve a privilege. Fed.R.Civ.P. 30(d)(1). The work product privilege protects against disclosure of the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Fed.R.Civ.P. 26(b)(3). The party asserting a work product privilege as a bar to discovery must prove the doctrine is applicable. See Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.1984). A mere allegation that the work product doctrine applies is insufficient. See Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984), cert. dismissed,469 U.S. 1199, 105 S.Ct. 983, 83 L.Ed.2d 984 (1985).

*     *     *

Because the work product doctrine is intended only to guard against divulging the attorney’s strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product. Feldman v. Pioneer Petroleum, Inc., 87 F.R.D. 86, 89 (W.D.Okla.1980). Thus, work product does not preclude inquiry into the mere fact of an investigation.

Resolution Trust Corp. v. Dabney, 73 P.3d 262, 266 (10th Cir. 1995).

It is important to distinguish between facts learned by a lawyer, a memorandum or document containing those facts prepared by the lawyer, and the lawyer’s mental impressions of the facts. The facts are discoverable if relevant. The document prepared by the lawyer stating the facts is not discoverable absent a showing required by Federal Rule of Civil Procedure 26(b)(3).  Mental impressions of the lawyer regarding the facts enjoy nearly absolute immunity…. The problem in this type of situation is determining the degree to which a particular deposition question elicits the mental impressions of the attorney who communicated a fact to the deponent. In a sense, any fact that a witness learns from his or her attorney presumably reveals in some degree the attorney’s mental impressions of the case, or, presuming rationality, the attorney would not have communicated the fact to the client. As I have pointed out previously, it is clearly not the law that a fact is not discoverable because a lawyer communicated the fact to the client.

State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 215 (E.D. Pa. 2008).

Questions Beyond Scope of Notice

From 1997 Colorado Lawyer Article...

Once an attorney determines that a question posed at a deposition is beyond the scope of Rule 30(b)(6), the question then becomes what to do about it. Unless defending counsel is prepared to seek a protective order pursuant to Fed. R. Civ. P. 26(c) and 30(d) immediately, defending counsel generally should not instruct the deponent not to answer the question. Fed. R. Civ. P. 30(d)(1) states, in relevant part, “A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3).”

Fed. R. Civ. P. 30(d)(3), in turn, allows counsel to move for a protective order under Rule 26(c), where “the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.”

There is no privilege recognized either by the Federal Rules of Evidence or applicable case law for questions that are beyond the scope of the Rule 30(b)(6) designation. Moreover, sanctions may be imposed pursuant to Fed. R. Civ. P. 30(d)(2) for “impediment, delay, or other conduct that has frustrated the fair examination of the deponent.”11 Therefore, except where privilege or an existing evidentiary court order is clearly at issue, it is risky to instruct the deponent not to answer a question on the grounds that the question is beyond the scope of Rule 30(b)(6), unless counsel immediately seeks a protective order. The party seeking the protective order bears the burden of justifying the instruction not to answer.

Rodger L. Wilson & Steve C. Posner, Questions Beyond the Scope: Defending Against the Fed. R. Civ. P. 30(b)(6) Sneak Attack, Colo. Law., 7-97, at 87, 88 (1997)

Rule 30(b)(6) does not limit what can be asked at deposition.

Since there is no specific limitation of what can be asked at deposition, the general deposition standards govern. The reason for adopting Rule 30(b)(6) was not to provide greater notice or protections to corporate deponents, but rather to have the right person present at deposition. The Rule is not one of limitation but rather of specification within the broad parameters of the discovery rules. This is made clear by both the Advisory Committee’s statement that 30(b)(6) “should be viewed as an added facility for discovery …” and the Rule’s final sentence: “This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.” Fed.R.Civ.P. 30(b)(6) advisory committee’s note. This Court sees no harm in allowing all relevant questions to be asked at a Rule 30(b)(6) deposition or any incentive for an examining party to somehow abuse this process.

In sum, this Court concludes that Rule 30(b)(6) cannot be used to limit what is asked of a designated witness at a deposition. Rather, the Rule simply defines a corporation’s obligations regarding whom they are obligated to produce for such a deposition and what that witness is obligated to be able to answer.

King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995), aff’d sub nom. King v. Pratt & Whitney, 213 F.3d 646 (11th Cir. 2000), and aff’d sub nom. King v. Pratt & Whitney, 213 F.3d 647 (11th Cir. 2000). See also Eng-Hatcher v. Sprint Nextel Corp., No. 07 Civ. 7350(BSJ)(KNF), 2008 WL 4104015, at *4–5 (S.D.N.Y. Aug. 28, 2008) and Crawford v. Franklin Credit Mgmt. Corp., 261 F.R.D. 34, 38 (S.D.N.Y. 2009)
(“The proper scope of questioning of a Rule 30(b)(6) witness is not defined by the notice of deposition, but by Rule 26(b)(1). . . .”).

Valid Deposition Objections 

Fed.R.Civ.P. 32(d)(3)(B) - Objection to an Error or Irregularity
Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:

(i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and

(ii) it is not timely made during the deposition.

Lack of available information

The fact that much of the factual information may only be known by former employees does not relieve the corporation from preparing and providing someone competent to testify. [I]t is not uncommon to have a situation, as in the instant case, where a corporation indicates that it no longer employs individuals who have memory of a distant event or that such individuals are deceased. These problems do not relieve a corporation from preparing its Rule 30(b)(6) designee to the extent matters are reasonably available, whether from documents, past employees, or other sources. Of course, just like in the instance of an individual deponent, the corporation may plead lack of memory. However, if it wishes to assert a position based on testimony from third parties, or their documents, the designee must still 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 corporations contentions. Rather, the corporation may designate a person to speak on its behalf and it is this position which the attorney must advocate.

United Technologies Motor Systems, Inc. v. Borg-Warner Automotive, Inc., 50 U.S.P.Q.2d 1060, 1061–62, 1998 WL 1796257 (E.D. Mich. 1998) (quoting United States v. J.M. Taylor, 166 F.R.D. 356, 361–62 (M.D.N.C. 1996)).

Privilege: Attorney-Client Communication

Under C.R.C.P. 30(d)(1), a party may instruct a witness not to answer a question during a deposition “only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion pursuant to subsection (d)(3) of this Rule.”

Pogue v. NorthWestern Mutual Life Insurance Company, No. 3:14-CV-598-CRS, slip op. at *11 (W.D. Ky. 2017); Liscio v. Pinson, 83 P.3d 1149, 1157 (Colo.App. 2003).

Privilege: Work Product

A party may instruct a deposition witness not to answer when necessary to preserve a privilege. Fed.R.Civ.P. 30(d)(1). The work product privilege protects against disclosure of the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Fed.R.Civ.P. 26(b)(3). The party asserting a work product privilege as a bar to discovery must prove the doctrine is applicable. See Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.1984). A mere allegation that the work product doctrine applies is insufficient. See Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984), cert. dismissed,469 U.S. 1199, 105 S.Ct. 983, 83 L.Ed.2d 984 (1985).

*     *     *

Because the work product doctrine is intended only to guard against divulging the attorney’s strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product. Feldman v. Pioneer Petroleum, Inc., 87 F.R.D. 86, 89 (W.D.Okla.1980). Thus, work product does not preclude inquiry into the mere fact of an investigation.

Resolution Trust Corp. v. Dabney, 73 P.3d 262, 266 (10th Cir. 1995).

It is important to distinguish between facts learned by a lawyer, a memorandum or document containing those facts prepared by the lawyer, and the lawyer’s mental impressions of the facts. The facts are discoverable if relevant. The document prepared by the lawyer stating the facts is not discoverable absent a showing required by Federal Rule of Civil Procedure 26(b)(3).  Mental impressions of the lawyer regarding the facts enjoy nearly absolute immunity…. The problem in this type of situation is determining the degree to which a particular deposition question elicits the mental impressions of the attorney who communicated a fact to the deponent. In a sense, any fact that a witness learns from his or her attorney presumably reveals in some degree the attorney’s mental impressions of the case, or, presuming rationality, the attorney would not have communicated the fact to the client. As I have pointed out previously, it is clearly not the law that a fact is not discoverable because a lawyer communicated the fact to the client.

State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 215 (E.D. Pa. 2008).

Form of the Question

Even if we limit lawyers defending a deposition to “form objections,” as is the case with “the usual stipulations,” those “form” objections include:

“leading questions, lack of foundation, assuming facts not in evidence, mischaracterization or misleading question, non-responsive answer, lack of personal knowledge, testimony by counsel, speculation, asked and answered, argumentative question, and witness’ answers that were beyond the scope of the question.

NGM Ins. Co. v. Walker Const. & Dev., LLC, No. 1:11–CV–146, 2012 WL 6553272, at *2 (E.D.Tenn. Dec. 13, 2012).

_________________________________________

This objection is usually asserted to make a clear record. Form questions fall into several categories. Some jurisdictions only require that the lawyer state a general “form” objection. Others require that the type of form objection be stated as well. Form questions are waived if they are not made during the deposition.

  • Compound. If the question is compound and the person answers yes, what portion of the question are they agreeing with? For example, if your client is asked “When you turned left were you in the turn lane and was your signal on and was the light green and how do you know”— object! Ask the lawyer to ask one question at a time.
  • Confusing. If the question is actually confusing, an objection may be proper.
  • Calls for speculation. A form objection should also be made to a question that calls for the witness to speculate. Be careful, though. Don’t suggest an answer, which would not be proper.
  • Ambiguous. The question may fairly be interpreted in more than one way.

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While objections may, under the revised rule, be made during a deposition, they ordinarily should be limited to those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer. Under Rule 32(b), other objections can, even without the so-called “usual stipulation” preserving objections, be raised for the first time at trial and therefore should be kept to a minimum during a deposition.

Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 74 (D. Neb. 1995).

Timely objection must be made during a deposition to avoid waiver of an objection that “relates to the manner of taking the deposition, the form of a question or answer…or other matters that might have been corrected at [the time of the deposition.]” But objections to relevance or materiality of testimony are not waived by failure to timely object during the deposition, unless the basis for the objection could have been corrected at the time.

Miller v. NEP Group, Inc., No. 15-cv-9701-JAR, slip op. at *8 (D. Kan. 2016).

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  • “Objecting to ‘form’ is like objecting to ‘improper’ — it does no more than vaguely suggest that the objector takes issue with the question. It is not itself a ground for objection, nor does it preserve any objection.” Sec. Nat. Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 601 (N.D. Iowa 2014)(PDF copy here – I couldn’t find a link to the full opinion anywhere).
  • “[I]f a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question. Failure to do so waives the objection.” Henderson v. B & B Precast & Pipe, LLC, No. 4:13-CV-528 CDL, 2014 WL 4063673, at *1 (M.D. Ga. Aug. 14, 2014).
  • “Objections to form must sufficiently explain the objection so that the interrogator is able to revise the question and avoid the problem.” Wise v. Washington County, No. 101677 (W.D. Pa., March 7, 2014).
Mischaracterizes earlier testimony
Asked and answered

Repetitive questioning can evince bad faith or a motive to harass the deponent if it is excessive.

Whiting v. Hogan, No. 12–CV–08039–PHX–GMS, 2013 WL 1047012 (D. Ariz. Oct. 21, 2005).

Moreover, if the deponent answers a question completely, counsel “should not repeatedly ask the same or substantially identical question.”

Mezu v. Morgan State University, 269 F.R.D. 565, 584 (D.Md. 2010) (citing Discovery Guideline 6.c.).

[I]t would not be appropriate for counsel examining a deponent to repeatedly and deliberately duplicate questions previously asked by other counsel. Such a practice, although not shown to have occurred in this instance, could support a motion to terminate a deposition under Rule 30(d), if employed to such an extent that bad faith or a motive to harass the deponent could properly be inferred.

Smith v. Logansport Community School Group, 139 F.R.D. 637, 646 (N.D. Ind. 1991).

Asks for legal conclusion
Generally, questions that attempt to elicit information outside the scope of the witness’ expertise are improper. Bailey v. Meister Brau, Inc., 57 F.R.D. 11, 14 (N.D. Ill. 1972).

[T]o the extent that any particular question calls for a legal conclusion, […] counsel may interpose an objection.

Loop AI Labs Inc v. Gatti, No. 15-CV-00798-HSG(DMR), slip op. at *3 (N.D. Cal. 2016).

The designated 30(b)(6) deponent cannot be asked to offer legal conclusions or to testify to subjects outside of the scope of the Rule 30(b)(6) notice.

Cat Iron, Inc. v. Bodine Environmental Services, Inc., No. 10–CV–2102, 2011 WL 2457486 (C.D. Ill. June 15, 2011).

Harassment

Fed.R.Civ.P. 32(d)(3)(B).

Fed.R.Civ.P. 32(d)(3)(B)

(B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if: (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and (ii) it is not timely made during the deposition.

The refusals to answer properly came only with argumentative and misleading questions for which plaintiffs’ attorneys insisted upon having answers to the point of harassment. Keogh v. Pearson, 35 F.R.D. 20, 22-23 (D.D.C.1964). Because the plaintiffs’ attorneys subsequently rephrased these questions and received answers, it is moot whether the deponents were properly directed not to answer. Hampton v. Pennsylvania Railroad Co., 30 F.R.D. 70, 71 (E.D.Pa.1962). The refusals were also proper for questions asked of [the deponent] which were previously asked and answered to the point of harassment.

In re Folding Carton Antitrust Litigation, 83 F.R.D. 132, 134-135 (N.D.Ill. 1979).

And, although a deposition such as this is unlikely to be “a non-stop exchange of pleasantries,” it nonetheless “must not be allowed to become an excuse for counsel to engage in acts of rhetorical road rage against a deponent and opposing counsel.

Mezu v. Morgan State University, 269 F.R.D. 565, 584 (D.Md. 2010) (citing Freeman v. Schointuck, 192 F.R.D. 187, 189 (D. Md. 2000)).

Silencing Objections

Speaking objections generally
Generally, speaking objections are prohibited under the Federal Rules of Civil Procedure and Colorado Local Rules. Specifically, the Federal Rules require that objections during a deposition “be stated concisely in a nonargumentative and nonsuggestive manner.”  Fed.R.Civ.P. 30(c)(2).  Moreover, the Local Rules prohibit “making objections or statements which have the effect of coaching the witness, instructing the witness concerning the way in which he or she should frame a response, or suggesting an answer to the witness.”  D.C. Colo. LCivR 30.3(A)(1).

Objections during a deposition “must be stated concisely in a nonargumentative and nonsuggestive manner.” Fed.R.Civ.P. 30(c)(2). The witness’s own counsel should not interpret questions, decide what to answer, or help the witness answer questions.” Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D.Pa.1993). “Speaking objections and coaching objections are simply not permitted in depositions in federal cases.” McDonough v. Kiniston, 188 F.R.D. 22, 24 (D.N.H.1998).  It is inappropriate for counsel to engage in extensive and unnecessary colloquoy, assert groundless objections, improperly object, or utilize any opportunity to interrupt and argue with opposing counsel during a deposition.  Deposition testimony should be that of the deponent, not a version edited or glossed by the deponent’s lawyer through coaching or speaking objections. See Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 700 (S.D. Fla 1999). Courts have characterized such conduct as “Rambo litigation tactics” designed to interfere with or prevent the elicitation of meaningful testimony and disrupt the orderly flow of a deposition. See In re Stratosphere, 182 F.R.D. 614, 619 (D.Nev.1998).

The Supreme Court commented on the problem of unduly prolonged, obstructive and unfair deposition tactics in the 1993 Amendments to Fed.R.Civ.P. 30(d). The Committee Note for the proposed changes made the following observations:

Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquoy, often suggesting how the deponent should respond … [O]bjections … should be limited to those that under Rule 32(d)(3) might be waived if not made at that time … [O]ther objections can … be raised for the first time at trial and therefore, should be kept at a minimum during a deposition.  See Advisory Committee Notes to 1993 Amendments.

Excessive number of objections

The conduct of depositions by oral examination is governed by Federal Rule of Civil Procedure 30. Objections at the time of examination are to be “noted on the record” and “stated concisely in a nonargumentative and nonsuggestive manner.” Fed.R.Civ.P. 30(c)(2). The advisory committee’s comments instruct that argumentative objections, suggestive objections, and directions to a deponent not to answer, improperly disrupt, prolong, and frustrate deposition testimony. See Fed.R.Civ.P. 30(d)(2), advisory committee notes (1993 amendments). The comments also state that “an excessive number of unnecessary objections may itself constitute sanctionable conduct.” Id. To “deter” such practices, Rule 30(d)(2) authorizes courts to impose “appropriate” sanctions on any “person who impedes, delays, or frustrates the fair examination of the deponent.” Craig, 384 Fed.Appx. at 533. Such sanctions are properly imposed to deter ongoing and subsequent discovery abuses. See id.; see also Van Stelton v. Van Stelton, No. C11–4045–MWB, 2013 WL 5574566, at *21 (N.D.Iowa Oct. 9, 2013); cf. Matter of Yagman, 796 F.2d at 1184.

—Sec. Nat. Bank of Sioux City, IA v. Day, 800 F.3d 936, 942 (8th Cir. 2015)

Coaching: "If you know..."
As for the objection “if you know,” Courts find this objection to be raw, unmitigated coaching, and is never appropriate.  Damaj v. Farmers Ins. Co., 164 F.R.D. 559 (N.D.Okla. Dec. 27, 1995).