Can A 30(b)(6) Witness be Forced to Testify About Litigation Contentions?
Numerous cases reject the use of Rule 30(b)(6) to require an adverse party to “marshal . . . its factual proof” and then put forward a witness to be cross-examined regarding such proof under oath. For example, In re Independent Serv. Organizations Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996), upheld objections to Rule 30(b)(6) notices seeking “facts supporting numerous paragraphs of a party’s denials and affirmative defenses.” As the court explained, these notices improperly required the responding party:
"in effect . . . to marshal all of its factual proof and then provide it to [the Rule 30(b)(6) designee] so that she could respond to what are essentially . . . contention interrogatories . . . [T]his would be highly inefficient and burdensome, rather than than the most direct manner of securing relevant information. "
168 F.R.D. at 645. Accord SmithKline Beecham Corp. v. Apotex Corp., 2000 WL 116082 (N.D. Ill.), at *7-9; United States v. District Council of New York, 1992 WL 208284 (S.D.N.Y.).
In SmithKline, the court issued a protective order barring a Rule 30(b)(6) deposition that sought testimony regarding (1) the “investigation and testing activities” leading to the responding party’s conclusion that a given patent had been infringed, (2) the “factual basis” for this claim of infringement, and (3) the party’s responses to certain discovery requests “along with the subjects identified therein.” 2000 WL 116082 at *9-10. The rules of discovery, the court held, prevent parties from:
""wielding the discovery process as a club by propounding requests compelling the recipient to assume an excessive burden . . . [T]he recipient of a Rule 30(b)(6) request is not required to have its counsel muster all of its factual evidence to prepare a [“person most knowledgeable witness] to be able to testify regarding a defense or claim. "
Id. Cf. McCormick-Morgan, Inc. v. Teledyne Indus. Inc., 134 F.R.D. 275, 286 (N.D.Cal. 1991) (“we are concerned that . . . no one human being can be expected to set forth, especially orally in a deposition, a fully reliable and sufficiently complete account of all bases for the contentions made and position taken by a party” in a complex case).
Such Rule 30(b)(6) notices can befar more burdensome, instrusive, and likely to result in breaches of attorney-client privilege and work produce than interrogatories directed at the same subjects. SmithKline, 2000 WL 116082 at 10 (rejecting Rule 30(b)(6) deposition when “interrogatories would be a far better method of discovery [the information] sought because SmithKline could synthesize the information from all of the available sources, which then would be presented to Defendants in a comprehensible manner”). Indeed, the topics listed in such notices are oftenarticulated in the form of an interrogatory.
Counsel should promptly object to such 30(b)(6) notices and argue that the 30(b)(6) deposition is intended to identify facts, not poke holes in legal theories.
"in effect . . . to marshal all of its factual proof and then provide it to [the Rule 30(b)(6) designee] so that she could respond to what are essentially . . . contention interrogatories . . . [T]his would be highly inefficient and burdensome, rather than than the most direct manner of securing relevant information. "
168 F.R.D. at 645. Accord SmithKline Beecham Corp. v. Apotex Corp., 2000 WL 116082 (N.D. Ill.), at *7-9; United States v. District Council of New York, 1992 WL 208284 (S.D.N.Y.).
In SmithKline, the court issued a protective order barring a Rule 30(b)(6) deposition that sought testimony regarding (1) the “investigation and testing activities” leading to the responding party’s conclusion that a given patent had been infringed, (2) the “factual basis” for this claim of infringement, and (3) the party’s responses to certain discovery requests “along with the subjects identified therein.” 2000 WL 116082 at *9-10. The rules of discovery, the court held, prevent parties from:
""wielding the discovery process as a club by propounding requests compelling the recipient to assume an excessive burden . . . [T]he recipient of a Rule 30(b)(6) request is not required to have its counsel muster all of its factual evidence to prepare a [“person most knowledgeable witness] to be able to testify regarding a defense or claim. "
Id. Cf. McCormick-Morgan, Inc. v. Teledyne Indus. Inc., 134 F.R.D. 275, 286 (N.D.Cal. 1991) (“we are concerned that . . . no one human being can be expected to set forth, especially orally in a deposition, a fully reliable and sufficiently complete account of all bases for the contentions made and position taken by a party” in a complex case).
Such Rule 30(b)(6) notices can befar more burdensome, instrusive, and likely to result in breaches of attorney-client privilege and work produce than interrogatories directed at the same subjects. SmithKline, 2000 WL 116082 at 10 (rejecting Rule 30(b)(6) deposition when “interrogatories would be a far better method of discovery [the information] sought because SmithKline could synthesize the information from all of the available sources, which then would be presented to Defendants in a comprehensible manner”). Indeed, the topics listed in such notices are oftenarticulated in the form of an interrogatory.
Counsel should promptly object to such 30(b)(6) notices and argue that the 30(b)(6) deposition is intended to identify facts, not poke holes in legal theories.
posted by Bob Redmond at 3:03 PM
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