Corporations, partnerships, and the like are legal fictions. They can only act through their human agents (at least until AI takes over). As a result, the Federal Rules of Civil Procedure have 30(b)(6), a nifty little rule which requires a person or persons to testify on behalf of an entity (and give binding responses no less). Over the course of my legal career, I have seen two recurring issues with such witnesses: the wrong designee is picked and/or the witness is not properly prepared. In-house counsel can be invaluable on both fronts.
True story. I was brought in to help try a breach of contract case after fact discovery had concluded. In preparing, I read the deposition of the other side's (a big corporation) 30(b)(6) witness (who also happened to be an in-house attorney). During his deposition, the witness responded with "I do not know" or "I do not recall" more than 200 times—which meant that the corporation did not know or did not recall those key topics. I was fairly confident that those admissions alone put on us on the path to victory. However, the other side also decided to call that same witness at trial and, surprise, he had perfect and total recall. After this stunning and miraculous demonstration of memory recovery, I was certain that the trial was ours.
In-house counsel are uniquely situated to help choose and prepare the 30(b)(6) witness. In a small company, the appropriate designee may be obvious, but in bigger organizations, finding the right witness takes time, skill, and good judgment. Remember, a 30(b)(6) witness is unlike any other fact witness because the entity gets to choose the witness. So, in addition to a person's knowledge and experience, counsel must assess all the other attributes that make a good witness—ability to remember and communicate, demeanor, and credibility. In-house counsel can speak to potential witnesses before designating a particular person. In-house counsel can provide a critical line of comfort and confidence in connecting the witness to outside counsel. In-house counsel are part of the very same organization and understand the entity's values, history, and environment. And remember, the rule does not expressly limit the organization to choosing one witness—more than one person may be designated to respond to different portions of the subpoena or notice.
After selecting the appropriate witness, preparation is critical. The deposition testimony that I recounted above happens far too often. It is also ineffective. A 30(b)(6) witness presents a special opportunity to put the organization's best foot forward. As a result, the witness must be thoroughly prepared substantively as well as to the written and unwritten rules of testifying. The witness must be familiar with the important evidence—both good and bad—and be prepared to respond accurately and successfully. I strongly encourage in-house counsel to participate in preparation if not the deposition itself. Besides preparation, in-house counsel can also respond to any privilege issues that may not be immediately apparent to outside counsel.
Of course, if a 30(b)(6) designee is not properly prepared as required (he or she "must testify about information known or reasonably available to the organization" according to the rule), sanctions and other bad judicial consequences can follow. Yet, even if sanctions are not on the table, "I do not know" or "I do not recall" responses do not create a genuine dispute of material fact to defeat summary judgment. And those answers are not persuasive in front of a jury. Sound and credible answers can lead to a number of positive results, including granting of summary judgment, defeating the other side's motion for summary judgment, and prevailing in front of a jury.
John Michael Vazquez, a former United States District Judge for the District of New Jersey, is a Member with the firm's Litigation and White Collar Defense & Investigations Groups. He brings his unique ability and decades of diverse experiences, including those from the federal judiciary to his practice at the firm, where he focuses on complex civil litigation, "bet-the-company" litigation, internal investigations, and criminal defense. He is also available as a special master and mediator in matters involving a broad range of industries. He can be reached at [email protected] or (973) 530-2070.
