Litigation Against an Organization: Why you need to do a Rule 30(B)(6) deposition.

If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6).  Rule of Procedure 30(b)(6) provides in pertinent part:

Notice or Subpoena Directed to an Organization. In its notice or subpoena, 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; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

The organization (not you) has the obligation of designating the person or persons needed to adequately answer the questions posed in the various designated areas you wish to ask questions.  You as the deposing party have the burden of meeting the “reasonable particularity” requirement of adequately designating the subject areas of questioning.  The statements given by the person(s) designated by the organization bind the organization as an admission of a party-opponent.

This is not necessarily the case when a statement is given by a low-level employee who is not a “member of the limited liability company”  or officer/director of a corporate organization  since their statements only bind the organization if they are:

1) made within the scope of their authority and

2) the person is still employed and has a relationship with the organization.

Under Rule of Evidence 801(d)(2), “non-hearsay” for the “admission of a party-opponent” is defined as follows:

(d) Statements which are not hearsay. A statement is not hearsay if –

*   *   *

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

A Rule 30(b)(6) declarant/deponent’s answers to questions during the deposition are considered a “statement by a person authorized by the party to make a statement about the subject“.  The organization can only authorize such a statement if the area of questioning has been identified in the deposition notice.  The trick is to make sure your designation of the areas of questioning is specific enough to cover the questions you wish to pursue during the deposition.  Otherwise, the organization is free to argue that they were not authorized to make the statement and bind the organization.  One caveat to this point, is that the organization likely has a duty to raise the objection at the time of the deposition if the problem could have been obviated at the time of the deposition by making a clarification in the question. Rule 32(d)(3)(A) states that “[a]n objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.”

If the opposing party designates the wrong person or fails to prepare them they risk possible discovery sanctions and ill-considered and ill-conceived answers to critical questions in the litigation.    The burden is on the organization to properly prepare and name as many people needed to answer your questions.  It is kind of like obtaining requests for admissions from your opponent on the fly.  It can be very powerful tool you can use to box in your opponent.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on June 14, 2012, in depositions, Evidence and tagged , , , , . Bookmark the permalink. Leave a comment.

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