The Lawyer’s Toolkit: Making Use of Rule 30(b)(6)
Written by Chuck Hehmeyer
Ask yourself: when is the last time you leveraged Rule 30(b)(6) to bolster your case? If your answer isn’t “recently,” you may want to pay close attention.
A cousin of its federal counterpart, Maine Rule of Civil Procedure 30(b)(6) is often overlooked and perhaps misunderstood. When properly wielded, M.R. Civ.P. 30(b)(6) is a powerful tool that cuts through the noise of chaotic and complex discovery.
Streamlining the Deposition Process
At its most basic level, Rule 30(b)(6) streamlines the process for taking depositions by eliminating any “guesswork” when it comes to determining what parties in a suit might have organizational knowledge. Instead, under Rule 30(b)(6), a litigant may “designate with reasonable particularity the matters on which examination has been requested,” which triggers an obligation on the part of the responding entity to select or “create” a deponent who shall answer questions about those “matters” and speak on its behalf.
The following are some key considerations to guide your use of Rule 30(b)(6).
- Rule 30(b)(6) depositions may be used with both parties and non-parties.
- Do not designate a specific deponent. In fact, doing so invalidates the notice. Sanders v. Circle K Corp., 137 F.R.D. 292, 293 (D. Ariz. 1991).
- The 30(b)(6) witness need not have any personal knowledge if the designee is sufficiently educated. QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012).
- Rule 30(b)(6) topics must be described with “reasonable particularity.” Some courts require “painstaking particularity.” Adidas America, Inc. v. TRB Acquisitions LLC, 324 F.R.D. 389, 395 (D. Or. 2017).
- Courts routinely permit questioning about organizational positions on legal issues. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). Most courts still allow contention questions.
- Most courts hold that a corporate designee must provide responses even if the organization’s lawyer provided the information. Great American Ins. Co. of N.Y. v. Vegas Constr. Co., 251 F.R.D. 534, 542 (D. Nev. 2008).
- Regardless of their number, the total number of 30(b)(6) witnesses count as a single witness for the purpose of deposition limitations.
- If an entity pleads lack of memory, it still must explain why it believes the facts should be construed a certain way if it wishes to assert that position later at trial. Taylor, 166 F.R.D. at 362. When a designee lacks ability to answer and the organization cannot better prepare that witness, the “we don’t know” response likely will be binding on the entity. Fraser Yachts Florida, Inc. v. Milne, 2007 WL 1113251, at *3 (S.D. Fla.). But an entity is “bound” by Rule 30(b)(6) testimony only like any individual would be bound, i.e., a so-called “evidentiary admission;” it is not a judicial admission that finally decides an issue. A.I. Credit Corp. v. Legion Insurance Co., 265 F.3d 630, 637 (7th Cir. 2001).