How a Rule 30(b)(6) Deposition Works

The Federal Rules and the Maryland Rules allow parties to obtain discovery for trial with a variety of mechanisms. At the top of the food chain of these possible discovery tools is depositions.

Mitt Romney’s famous quote notwithstanding, corporations are not people. So when you depose company employees, you often get what the creators of Rule 30(b)(6) called “bandying.” This is when the company’s employees all deny individual knowledge of facts that are certainly known to the company. But you just do not have the right person. (Heads up: you can still face this problem in some cases where the “company” is an Enron-like maze of related corporations. In this case, you need to get deposition notices for every possible entity.)

Rule 30(b)(6) was devised 45 years ago to solve this problem. The Rule allows a part to name the corporation as a deponent and identify the topics of inquiry for the testimony. So the deposing party must give a notice of deposition, like the one above, that sets forth the subject matter of the deposition with “reasonable particularity.”

A deposition pursuant to Rule 30(b)(6) is substantially different from a witness’s deposition as an individual. The testimony of a Rule 30(b)(6) designee goes to the knowledge of the corporate entity, not of the individual representative of the organization. Rule 30(b)(6) designees present the organization’s position on the noticed topics and provide the entity’s interpretation of events and documents. The key for plaintiffs’ lawyers is that 30(b)(6) witness binds the entity and he is responsible for providing all the relevant information known or reasonably available to the entity. That is a powerful weapon against the “I don’t know” brigade.

• Sample 30(b)(6) subpoena
• Sample 30(b)(6) document request

The corporation could hire Leonardo DiCaprio to answer the questions. There are no restrictions on who it can designate. But, more typically, they will choose one or more employees to testify to speak to these topics. The answer given to these questions can bind the corporation at trial.

Some Key 30(b)(6) Cases

• In re Firstenergy Corp Sec. Litig., 2:20-cv-3785 (S.D. Ohio Mar. 30, 2023).  The U.S. District Court for the Southern District of Ohio found that FirstEnergy had not adequately prepared its corporate representative for a 30(b)(6) deposition. Despite extensive preparation, she was unable to provide sufficient testimony, frequently stating she did not know or was unprepared to answer questions.  The court determined that while a 30(b)(6) designee is not expected to be perfect, they must be thoroughly equipped to represent all matters reasonably known by the corporation. Consequently, the court ordered a second 30(b)(6) deposition and required FirstEnergy to cover the associated costs and attorney’s fees.
• Burrow v. 3M, 529 F.Supp.3d 1194 (WD Wash. 2021 ). The court clarified the purpose of Fed. R. Civ. P. 30(b)(6) as requiring organizations to designate a knowledgeable witness on the specific topic noticed. This requirement is especially important when the party issuing the notice cannot identify an appropriate witness within the organization due to the specialized nature of the knowledge. However, the court emphasized that this rule should not be used to overly burden the responding party with the production and preparation of a witness for every aspect of the litigation. In this design defect case, the plaintiff’s attorney issued an overly broad 30(b)(6) notice that extended far beyond the scope of the design defect at issue. The court ordered the plaintiff to revise the notice to narrow the focus of the inquiry.
• Murphy v. Kmart, 255 F.R.D. 497, 506 (D. S.D. 2009). The court honed in on the reasonable particularity” we talked about above, noting the importance of discreet topics because companies can “face sanctions for failing to adequately produce and prepare its deponents.’
• Sanyo Laser Products v Arista Records., 214 F.R.D. 496 (S.D. 2003). The court stated that the rule is “designed to prevent ‘bandying,’ the practice of presenting employees for their deposition who disclaim knowledge of facts known by other individuals within the entity.
• Black Horse Lane v. Dow Chem., 228 F.3d 275, 304 (3d Cir. 2000). This case provides this epic line: “In 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.”
• Webb v. District of Columbia, 189 F.R.D. 180 (D.D.C. 1999). The court reinstated a default judgment in a racial discrimination case for a host of infractions, including the failure to produce Rule 30(b)(6) witnesses who could speak to the designated topics. The court held that the defendant “failed miserably in its duties under Rule 30(b)(6) to proffer witnesses capable of testifying to matters known or reasonably available to the organization.”
• Thomas v. Hoffman-LaRoche, 126 F.R.D. 522, 525 (N.D. Miss. 1989). The court sanctioned the defendant because it did not produce witnesses to speak to designed issues in 30(b)(6) notice.

Maryland’s 30(b)(6) Rule

In Maryland, the rule analogous to the Federal Rule of Civil Procedure 30(b)(6) is found under the Maryland Rules of Civil Procedure. Specifically, it is Rule 2-412(d). This rule governs the procedure for taking depositions of public or private corporations, partnerships, associations, governmental agencies, or other entities in Maryland’s state court proceedings. It allows a party to list topics and requires the entity to designate a representative to testify on those matters.

Rule 2-412(d) permits a party to notice or subpoena a deposition from a public or private corporation, a partnership, an association, a governmental agency, or any other entity. Instead of naming an individual deponent, the party can specify topics, and then the named organization must designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf about the topics listed.

The key features and principles of Maryland’s 30(b)(6) procedures echoed in this Maryland Rule:

1. Designation of a Representative: Like the federal rule, the organization being deposed must designate one or more individuals who will testify on its behalf. The individuals don’t necessarily need to have personal knowledge of the topics, but they must be adequately prepared by the organization to testify about them.
2. Duty to Prepare: The designated representative has a duty to be adequately prepared for the deposition. This means they must review all the relevant information, consult with others in the organization, and be able to provide binding answers on behalf of the organization.
3. Topics of Inquiry: The notice or subpoena must list the topics of inquiry for the deposition. The designated representative must be prepared to speak on these specific topics.
4. Binding Testimony: The testimony provided by the Rule 2-412(d) witness binds the organization. This means that the testimony represents the organization’s knowledge and position on the specified topics.
5. Multiple Representatives: If a single representative isn’t knowledgeable about all the listed topics, the organization can designate multiple representatives to cover all the topics adequately.
6. Objections: Just like with individual depositions, objections can be made during the deposition, except those that would be better addressed in a motion in limine.
7. Motions to Compel or Sanctions: If a party believes the designated representative was inadequately prepared or if there are other issues related to the deposition, they can seek remedies from the court, including compelling another deposition or seeking sanctions.