In federal court, a party may take a deposition of an organization under Rule 30(b)(6) of the Federal Rules of Civil Procedure. The Rule states in relevant part:
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.
The persons designated must testify about information known or reasonably available to the organization.
The “matters for examination” are commonly called “topics” and are listed in the deposition notice.
Generally speaking, when the named organization designates one or more persons to testify on its behalf, the organization is bound by the testimony.
Is the person taking the 30(b)(6) deposition limited by the topics in the deposition notice?
Over the years, I have frequently heard a lawyer for the organization object to a question because “it goes beyond the topics in the notice.”
Is this a valid objection? For some time, the answer seemed to be “yes”.
Today, however, the majority of courts permit the lawyer taking the deposition to go beyond the topics and inquire as to any other discoverable facts the witness may know. See American General Life Insurance Company v. Billiard, 2010 WL 4367052 (N.D. Iowa Oct. 28, 2010) and the cases collected therein.
I have not located a Fifth Circuit decision on this issue, but in 2015, the United States District Court for the Western District of Texas reached the same conclusion:
While the Fifth Circuit Court of Appeals has not yet ruled on the issue, courts addressing depositions of corporate representatives designated pursuant to Rule 30(b)(6) have almost uniformly agreed that the scope of a Rule 30(b)(6) deposition is not limited to the topics listed in the Rule 30(b)(6) notice.
See Rivas v. Greyhound Lines, Inc., 2015 WL 13710124 (W.D. Tex. April 27, 2019) and the cases collected therein.
Citing a decision from the Southern District of Florida, the district court explained that the Rule is best read as follows:
1) Rule 30(b)(6) obligates the responding corporation to provide a witness who can answer questions regarding the subject matter listed in the notice.
2) If the designated deponent cannot answer those questions, then the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions, etc. 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. Rule 30(b)(6) delineates this affirmative duty.
3) If the examining party asks questions outside the scope of the matters described in the notice, the general deposition rules govern (i.e., Fed. R. Civ. P. 26(b)(1) ), so that relevant questions may be asked and no special protection is conferred on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6).
4) However, if the deponent does not know the answer to questions outside the scope of the matters described in the notice, then that is the examining party’s problem.
The case law does, however, support the proposition that the organization will not necessarily be bound by answers to questions that go beyond the topics. To hold otherwise would allow the deposing attorney to “ambush” the organization with questions for which the organization and its witness were unable to prepare.
I have not located any Mississippi state court case addressing this issue. But, the Mississippi Rules of Civil Procedure are modeled on the federal rules, and federal court cases interpreting the federal rules are often relied upon by state courts when interpreting the state rules.
Suggested practice pointer.
I suggest the following topic be included in any 30(b)(6) deposition notice:
“Any other non-privileged facts known by the designated witness that are relevant to the parties’ claims and defenses. See Rivas v. Greyhound Lines, Inc., 2015 WL 13710124 (W.D. Tex. April 27, 2019) and the cases collected therein.”
In that way, opposing counsel cannot argue surprise.
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