Trial Magazine

When organizations such as corporations, partnerships, associations, and government agencies appear in litigation as parties and witnesses, Federal Rule of Civil Procedure 30(b)(6) and its state equivalents provide an efficient way to depose these organizations and access institutional knowledge.¹ This discovery tool can be instrumental for establishing the elements of your client’s case. Organizations do not escape the obligation to appear for a deposition merely because they are not a “person.”

All states have adopted rules similar to the federal Rule 30(b)(6). Although there are nuanced differences between the states’ rules, those differences are minimal. The net effect is that the rule works essentially the same from state to state.

Five state rules are virtually identical to the federal one—Arizona, Idaho, Kansas, New Hampshire, and Nevada; others are substantially similar with notable variations. (See map below.) California, Michigan, and New York rules differ more significantly from the federal rule.

How your state rule differs from the federal rule is important—due to a paucity of state case law regarding Rule 30(b)(6), all state courts look to federal jurisprudence when interpreting and applying the rules of civil procedure.² Knowing how your state rule compares to or contrasts with the federal one enables you to preemptively plan the best method for taking the deposition, allows you to head off objections, and provides you with the tools you need to overcome obstructive tactics and unfounded objections.³

The Organization’s Testimony

Federal Rule 30(b)(6) was designed to “avoid the bandying that occurs in organizations when the requesting party deposes officers or employees of an organization, but each witness claims not to know facts that someone in the organization clearly knows.”⁴ As one court described, “without the rule, a corporation could hide behind the alleged failed memories of its employees.”⁵

Matters for examination and witness designation. Rule 30(b)(6) allows a party to name as a deponent, in a notice or a subpoena, a “public or private corporation, a partnership, an association, a governmental agency, or other entity” and to “describe with reasonable particularity the matters for examination.”⁶ In turn, the responding organization must designate one or more people to testify on its behalf regarding all information known or reasonably available to the organization.⁷

Practically speaking, you must tell the organization what you want to find out during the deposition. You may request factual information within the organization’s knowledge.⁸ For instance, if you want to learn all the facts—who, what, when, where, how—about what happened in the operating room during a surgery gone awry, you may send a 30(b)(6) notice requiring the organization to gather and testify regarding all facts known or available to it. You may also inquire into an organization’s positions;⁹ subjective beliefs and opinions;¹⁰ interpretations of documents and events;¹¹ and, as a general rule, the basis of its contentions and affirmative defenses.¹²

The organization must then gather all information that is known or reasonably available to it and fully prepare the people it selects to be its voice so that 30(b)(6) deposition witnesses are ready and able to testify about that information. The 30(b)(6) witness’s testimony is not the testimony of the individual; it’s the testimony of the organization.

Meet and confer. The federal rule was amended in 2020 and now requires lawyers to confer before taking 30(b)(6) depositions. The rule amendment states: “Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify.”¹³ None of the states have adopted similar “meet and confer” language to date.

This language was added to the federal rule to address concerns about overlong or ambiguous lists of matters for examination, as well as the problem of inadequately prepared witnesses. The purpose of this meet and confer process is to have a candid discussion about the purposes of the deposition and the organization’s information structure and to clarify or focus the matters for examination.¹⁴

This requirement to confer does not give the objecting party a license to obstruct. Although the parties are required to confer in good faith, they are not required to come to an agreement on all disputes.

If disagreements still exist after the conference, existing law will govern how one should proceed. The objecting party may choose to go forward with the deposition notwithstanding the disagreement, making sure that its witnesses are fully prepared regarding the unobjectionable matters, or it may move for a protective order pursuant to Rule 37.¹⁵ But the objecting party cannot refuse to appear for the deposition nor can it unilaterally fail to present a fully prepared designee.

Reaching the ‘Other Entity’

In 2007, the first sentence of the federal rule was amended to add the phrase “or other entity,” making it clear that Rule 30(b)(6) could be used to “reach information known or reasonably available to an organization no matter what abstract fictive concept is used to describe the organization.”¹⁶ A sole proprietorship, a limited partnership, or any other type of entity cannot avoid a 30(b)(6) deposition simply because its legal characterization is not specifically referred to in the rule.

Only the five virtually identical state rules, as listed above, have incorporated “or other entity” into their respective rules.¹⁷ However, the other states’ omission of this phrase is insignificant and should not stop you from deposing an organization that is not a corporation, partnership, or government entity. Most of the remaining state rules include a reference to ldquo;association” when specifying who may be named as a deponent.

If your opponent seeks to prevent you from deposing an abstract, ill-defined organization not specifically included within the language of your rule, do not be deterred. An association “is a broad term, referring to ‘mere collections of individuals’ who have joined together for a common purpose.”¹⁸

Nonparty Subpoenas

At times, you will need to depose a nonparty organization. For instance, you may need information from an accounting firm, a subcontractor, or an IT company. Rule 30(b)(6) clarifies the procedure to be used to compel nonparty organizations to these depositions.

In 1971, the federal rule was amended to include a reference to the word “subpoena,” making it clear that you should serve a subpoena rather than a notice to compel a nonparty organization to a deposition.¹⁹ Thirteen states—Colorado, Delaware, Florida, Georgia, Indiana, Louisiana, New Jersey, Ohio, Texas, Utah, Vermont, Virginia, and Wisconsin—do not refer to a subpoena in their rules.²⁰

However, this omission should not dissuade you. Every state’s rule allows you to name an organization as a witness, and every state allows you to subpoena a nonparty witness to a deposition, without limitation.²¹ After an extensive nationwide search, I have found no jurisprudence from any state that prohibits a 30(b)(6) deposition of a nonparty.

Identifying Designees in Advance

The federal rule does not require an organization to identify its designee prior to the deposition.²² But a handful of states—New York, Oklahoma, Oregon, Rhode Island, Texas, and Utah—require advance identification of the people who will testify on the organization’s behalf and the matters on which they will testify.

Oregon, for example, requires the organization to give notice of its designee at least three days before the deposition, absent good cause or agreement of the parties and the deponent, while Rhode Island requires a written designation to be served and filed prior to the deposition.²³

Although the federal rule and the remaining state rules do not have a similar requirement, I have found that opposing counsel often identify the designees in advance of the deposition if you make the request. Or, if it is imperative for you to know who the designee will be prior the deposition—perhaps to collect prior deposition transcripts of said witness—you may opt to serve an interrogatory seeking the identification. But that comes with a time cost.

State Outliers

The rules in California, Michigan, and New York differ more significantly from the federal one, but courts in these states still look to federal courts for guidance.

California. California’s rule is similar in its purpose to the federal rule but has a noteworthy difference.²⁴ Instead of allowing the organization to designate whomever it chooses to testify, California requires that the organization designate the person “most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”²⁵

As with the federal rule, the testimony of the person “most qualified” is not limited to personal knowledge.²⁶ The deponent is the organization, not the individual. Thus, just as with the federal rule, California requires the organization to ensure that the person “most qualified” has the information reasonably available to the organization.²⁷ Despite the different language in the California rule, the courts still look to federal jurisprudence for guidance in interpreting California’s rule.²⁸

Michigan. In 2019, Michigan Court Rule 2.306(b)(3), which had been substantively similar to federal Rule 30(b)(6), was amended.²⁹ The majority of the Michigan rule still mirrors the federal one, but the 2019 amendment made four significant changes. First, the notice must be served at least 14 days prior to the deposition, and second, the deposition is limited to one day of seven hours. Third, the rule provides the responding party with a mechanism to object to the notice or to file a motion for protective order no later than 10 days after being served with the notice. If the organization objects, the noticing party must decide whether to enforce the notice or to proceed with the deposition regarding unobjectionable matters, with the responding party fully preparing the witness regarding those matters. Finally, the amendment removed the federal rule language that “a subpoena must advise a nonparty organization of its duty to make the designation.”

New York. In 2015, New York’s Commercial Division adopted a rule substantially similar to, and in fact more expansive than, federal Rule 30(b)(6).³⁰ It allows the requesting party to identify the specific person it wishes to depose on behalf of the organization or to allow the organization to select the designee.³¹ If the organization chooses the designee, the organization must designate the person at least 10 days before the deposition.³²

As of Feb. 1, 2021 pursuant to an administrative order, the rule adopted in the Commercial Division now applies to New York courts of general jurisdiction. The order added the Commercial Division rule verbatim to the Uniform Civil Rules for the Supreme Court and the County Court of New York.³³ This substantial change is a positive move forward for practitioners in the state; before this amendment, there was no mechanism in place for taking a deposition by issue designation in the general courts.³⁴

Carma Henson is a partner of Henson Fuerst in Raleigh, N.C., and can be reached at carma@lawmed.com.

Notes

1. Fed. R. Civ. P. 30(b)(6).
2. See Goins v. Puleo, 512 S.E.2d 748, 752 (N.C. 1999) (“Because the Federal Rules of Civil Procedure are the source of the North Carolina Rules of Civil Procedure, this Court has said that we will look to decisions under the federal rules ‘for enlightenment and guidance as we develop the philosophy of the new rules.’”); see also, e.g., City of Fort Smith v. Carter, 216 S.W.3d 594, 598 (Ark. 2005); D.R. Horton Inc. v. D&L Landscaping, LLC, 215 P.3d 1163 (Colo. Ct. App. 2008); Owens v. VHS Acquisition Subsidiary No. 3, Inc., 78 N.E.3d 470 (Ill. App. Ct. 2017).
3. This article does not capture all the variations between the state and federal rules. An in-depth analysis of all states’ rules compared to the federal rule appears in Appendix A of Mark Kosieradzki’s book 30(b)(6): Deposing Corporations, Organizations, and the Government (Trial Guides 2d ed. 2020), which also provides a comprehensive study of the manner and method of taking 30(b)(6) depositions. See also Mark Kosieradzki, Deposition Obstruction: Breaking Through (AAJ Press 2019) for an in-depth study of how to stand up to deposition obstruction.
4. Fed. R. Civ. P. 30 advisory committee’s note to 1970 amendments; United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996); see also Great Am. Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 538 (D. Nev. 2008); Kosieradzki, 30(b)(6): Deposing Corporations, Organizations, and the Government, supra note 3 at 34.
5. QBE v. Jorda, 227 F.R.D. 676, 688 (S.D. Fla. 2012).
6. Fed. R. Civ. P. 30(b)(6).
7. Id.
8. See Wilson v. Lakner, 228 F.R.D. 524 (D. Md. 2005); see also Kosieradzki, 30(b)(6): Deposing Corporations, Organizations, and the Government, supra note 3 at 173.
9. Taylor, 166 F.R.D. at 362; United States v. Mass. Indus. Fin. Agency, 162 F.R.D. 410, 412 (D. Mass. 1995); Lapenna v. Upjohn Co., 110 F.R.D. 15, 21 (E.D. Pa. 1986); Toys “R” Us, Inc. v. N.B.D. Trust Co., 1993 WL 543027, at *2 (N.D. Ill. Sept. 29, 1993).
10. Lapenna, 110 F.R.D. at 20 (citing Kendall v. United Air Lines, Inc., 9 F.R.D. 702 (S.D.N.Y. 1949); see also 4 James Wm. Moore et. al., Moore’s Federal Practice, §26.56[3], at 142–43 (2d ed. 1984).
11. Ierardi v. Lorillard, Inc., 1991 WL 158911, at *2 (E.D. Pa. Aug. 13, 1991); Moore, supra note 10.
12. Canal Barge Co. v. Commonwealth Edison Co., 2001 WL 817853, at *2 (N.D. Ill. July 19, 2001); Taylor, 166 F.R.D. at 362; In re ClassicStar Mare Lease Litig., 2009 WL 1313311, at *2 (E.D. Ky. May 12, 2009); see also Kosieradzki, 30(b)(6): Deposing Corporations, Organizations, and the Government, supra note 3 at 173–88.
13. Fed. R. Civ. P. 30(b)(6) (as amended Dec. 1, 2020).
14. Id. advisory committee’s note to 2020 amendment.
15. Kosieradzki, 30(b)(6): Deposing Corporations, Organizations, and the Government, supra note 3 at 13.
16. Fed. R. Civ. P. 30(b)(6) advisory committee’s note to 2007 amendment.
17. Ariz. R. Civ. P. 30(b)(6); I.R.C.P. 30(b)(6); Kan. Stat. Ann. §60-230 (2014); Nev. R. Civ. P. 30(b)(6); N.H. R. Super. Ct. 26(m).
18. Carolina Casualty Co. v. Elliott, 2010 WL 5089988 (E.D. Wis. Dec. 7, 2010).
19. Fed. R. Civ. P. 30(b)(6) advisory committee’s note to 1971 amendment.
20. Colo. R. Civ. P. 30(b)(6); Del. R. Civ. P. Super. Ct. 30(b)(6); Fla. R. Civ. P. 1.310(b)(6); Ga. Code Ann. §9-11-30(b)(6) (2010); Ind. R. Trial. P. 30(b)(6); La. Code Civ. P. art. 1442; N.J. Ct. R. 4:14-2(c); Ohio R. Civ. P. 30(b)(5); Tex. R. Civ. P. 199.2(b)(1); Utah R. Civ. P. 30(b)(6); Vt. R. Civ. P. 30(b)(6); Va. R. Sup. Ct. 4:5(b)(6); Wis. Stat. Ann. §804.05(2) (West 2017).
21. For example, Delaware’s Rule 30(a) provides “the attendance of witnesses may be compelled by subpoena as provided in Rule 45.” Del. R. Ch. Ct. 30(a); see also, e.g., Ga. Code Ann. §9-11-30(a) (2010); N.J. Ct. R. 4:14-1; Ohio R. Civ. P. 30(a).
22. Fed. R. Civ. P. 30(b)(6).
23. Or. R. Civ. P. 39(c)(6), R.I. Super. Ct. R. Civ. P. 30(b)(6). Oklahoma requires the designation to be delivered prior to or at the commencement of the deposition. Okla. Stat. Ann. tit. 12 §3230(c)(5) (2014). New York requires designation at least 10 days prior to the deposition. N.Y. Comp. Codes R. & Regs. tit. 22 §202.20-d (2021). Texas requires designation within a reasonable time before the deposition. Tex. R. Civ. P. 199.2(b)(1). Utah requires the organization to “state, for each person designated, the matters on which the person will testify” but does not say when this designation must be made. Utah R. Civ. P. 30(b)(6).
24. Cal. Code Civ. P. 2025.230.
25. Id.
26. See Maldonado v. Superior Ct., 94 Cal. App. 4th 1390, 1395–96 (Cal. Ct. App. 2002).
27. Serratos v. Countrywide Home Loans, 2015 WL 6271926, at *5 (Cal. Ct. App. Dec. 4, 2013).
28. Liberty Mut. Ins. Co. v. Superior Ct., 10 Cal. App. 4th 1282, 1288 (Cal. Ct. App. 1992).
29. Mich. Ct. R. 2.306(b)(5).
30. N.Y. Comp. Codes R. & Regs. tit. 22 §202.70(g), Rule 11-f.
31. N.Y. Comp. Codes R. & Regs. tit. 22 §202.70(g), Rule 11-f(c).
32. Id.
33. N.Y. Comp. Codes R. & Regs. tit. 22, §202.20-d; Administrative Order of the Chief Administrative Judge of the Courts, A.O. 270/2020, 5 (Dec. 29, 2020), https://tinyurl.com/2ytjwz92.
34. N.Y. C.P.L.R. 3106(d) was the relevant rule, which did not allow the requesting party to designate matters of examination.