organization ’ s testimony is thorough and complete . In particular , separate witnesses may be necessary to address different business units or periods of time that may be at issue . The organization ’ s attorney should resist the temptation simply to select an individual who already possesses the most knowledge on each topic . A 30 ( b )( 6 ) deposition is a rare opportunity to choose your fact witness , and due consideration should be given to the witness ’ s presentation , demeanor and memory , and substantive knowledge on each topic and corporation knowledge beyond the noticed topics .
The corporation has a duty to thoroughly prepare and educate its designee on the topics , which may require interviewing other employees , and reviewing information , documents and even other testimony and exhibits in the litigation . 7 Counsel should be closely involved to ensure that the designee is obtaining all reasonably necessary information to aid his or her preparation . While Rule 30 ( b )( 6 ) does not mandate “ absolute perfection in preparation ,” it does require “ a good faith effort ” to obtain the relevant facts and prepare the witness . 8 “ Preparing a designated corporate witness with only the self-serving
7 Fed . Deposit Ins . Corp . v . Hutchins , No . 1:11 CV 1622 AT , 2013 WL 12109446 , at * 3 ( N . D . Ga . Oct . 25 , 2013 ); see also , Peterson v . Aaron ’ s , Inc ., No . 1:14-CV-1919- TWT , 2017 WL 385923 , at * 2 ( N . D . Ga . Jan . 25 , 2017 ). 8 Ajibade v . Wilcher , No . CV416- 082 , 2017 WL 119474 , at * 4 ( S . D . Ga . Jan . 10 , 2017 ) ( quoting Wilson v . Lakner , 228 F . R . D . 524 , 528 ( D . Md . 2005 )); see also , Peterson , 2017 WL 385923 , at * 2 ; Bayer Healthcare Pharm ., Inc ., 2013 WL 11901530 , at * 3 . half of the story that is the subject of his testimony is not an act of good faith .” 9
Effect of Corporate Designee ’ s Testimony
The importance of adequately preparing a corporate designee cannot be overstated . In this Circuit , the testimony of the designee is binding on the corporation . 10 Generally , a corporation cannot later proffer new or different testimony or assertions than those that were provided at the Rule 30 ( b )( 6 ) deposition . The binding nature of Rule 30 ( b )( 6 ) testimony , coupled with the duty to proffer the organization ’ s knowledge on a topic , creates a particularly troublesome result if the designee does not know the answer to questions fairly within the scope of the deposition topics . Counsel may be obligated to prepare and produce additional witnesses to address the topics , unless the questions are so non-controversial that opposing counsel does not oppose corrections being made by an errata sheet .
Courts recognize that serving as a Rule 30 ( b )( 6 ) designee may be an “ onerous and burdensome task ,” but view this consequence as “ merely an obligation that flows from the privilege of using the corporate form to do business .” 11 Failure to satisfy these obligations could re-
9 Sciarretta v . Lincoln Nat . Life Ins . Co ., 778 F . 3d 1205 , 1213 ( 11th Cir . 2015 ). 10 See , Strategic Decisions , LLC v . Martin Luther King , Jr . Ctr . for Nonviolent Soc . Change , Inc ., No . 1:13-CV-2510-WSD , 2015 WL 2091714 , at * 6 ( N . D . Ga . May 5 , 2015 ); Otero , 2006 WL 3535149 , at * 4 . 11 Hutchins , 2013 WL 12109446 , at * 6 ( quoting QBE Ins . Corp ., 277 F . R . D . at 690 ). sult in sanctions , ranging from “ the imposition of costs to preclusion of testimony and even entry of default .” 12 When noticed for a Rule 30 ( b )( 6 ) deposition , corporations are best served by narrowing and / or clarifying the scope of the notice on the front end , and by strategically selecting proper deponents . It is critical for the corporate designee ( s ) to work closely with counsel to thoroughly prepare for each topic by determining the proper scope of the search for information , and by reviewing the responsive information to anticipate the types of questions that may be asked . ▪