Notwithstanding the U.S. Supreme Court’s recent decision in Citizens United v. Federal Election Commission1 imbuing corporations with First Amendment rights equal to those enjoyed by natural persons, corporate litigators are well aware that such entities cannot actually “speak” for themselves. The Federal Rules of Civil Procedure provide two ways in which corporations and other business entities can be deposed. First, a party seeking to take the deposition of an organization may proceed under Rule 30(b)(1) by naming a particular person to testify on behalf of the organization, so long as the person named is an officer, director, or managing agent of the organization.2
In the alternative, a party may subpoena or notice the deposition of an organization by naming the organization itself pursuant to Rule 30(b)(6). We discuss below a number of recent decisions from the U.S. District Court for the Southern District of New York that illustrate the importance of a properly focused 30(b)(6) notice, the meaningful obligations that receipt of such a notice imposes in terms of designating and adequately preparing the witnesses that will be offered in response, and the consequences that may flow from failing to take those obligations seriously.
Basic Principles
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