Deposing a Corporate Entity

The deposition notice or subpoena may name as the deponent a corporation, partnership, association, or governmental agency and should describe with reasonable particularity the matters on which examination is sought. The organization named must then designate one or more officers, directors, managing agents, or other persons who consent to testify for the organization to appear at the deposition. The federal subpoena form requires a nonparty organization to designate those persons who will testify on its behalf and further provides that the organization may set forth the matters on which each will testify.

When you are uncertain which individuals associated with an organization have knowledge of particular subjects, it may be easier to use Federal Rule of Civil Procedure 30(b)(6) to compel the organization to identify a witness or witnesses to testify on the specified subjects than to select a name based on limited information and hope that the individual is sufficiently knowledgeable. Indeed, one purpose of the rule is to dispense with the need to depose many witnesses in the search for those with relevant knowledge. The Advisory Committee noted that the purpose behind Rule 30(b)(6) is to keep a corporation from being allowed to hide the ball: “It will curb the ‘bandying’ by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it.” The persons designated under Rule 30(b)(6) are required to “testify as to matters known or reasonably available to the organization.”

Duty to Designate Knowledgeable Witness

If the organization is an adverse party, it may be tempted not to identify a very knowledgeable or helpful witness to appear at the deposition, in response to the Rule 30(b)(6) notice. That strategy, which defies the intent of the rule, will fail in the long run and may result in sanctions. It is also contrary to the American Bar Association Civil Discovery Standards.6 Courts have not hesitated to compel corporations to re-designate witnesses when those who were designated to testify for the corporation had insufficient knowledge. Such orders may be accompanied by sanctions, including directions to pay opposing counsel’s fees and costs and default judgment on a motion to dismiss if appropriate designees are not promptly provided. The duty to designate a knowledgeable witness is solely the organization’s; the opposing party cannot compel an organization to designate a particular witness.

An organization may designate in-house counsel as its Rule 30(b)(6) representative. However, the organization should be cautious because designating counsel poses risks of waiving work product protection and attorney-client privilege and increasing the complexity of the litigation. One court found a waiver of both when in-house counsel testified as a Rule 30(b)(6) designee.

Duty to Prepare Witness