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Electronic Discovery Institute Course - Class 25: Using Experts - Rule 30(b)(6) & Testimony

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on July 8, 2018. Go to to sign up for it.

The course on Rule 30(b)(6) is taught by Seth Eichenholtz, an e-discovery manager with Swiss Re; Ronald Hedges, a former magistrate judge with the U.S. District Court for the District of New Jersey; and Laura Kibbe, the head of data analytics for RVM Enterprises.

What is a 30(b)(6) Deposition?

Rule 30(b)(6) allows a notice to be sent to an entity requesting that someone be made available to answer questions about a certain subject. Such a corporate deponent is not a fact witness, but someone who can answer general questions about a company. A 30(b)(6) deposition may be used to help get further understanding about the sources of data at issue in a case.

Who is an Appropriate 30(b)(6) Witness?

A witness may be asked questions beyond the scope of the 30(b)(6) deposition. In order to guard against the pitfalls of answers to such questions, someone from outside the company may testify on its behalf. Judge Hedges said that the rule does not require that an employee of the company be the 30(b)(6) witness. Multiple people can serve as witnesses under Rule 30(b)(6). An in-house lawyer may make a good 30(b)(6) witness. It may be difficult for a single witness to testify about several different subjects.

Eichenholtz recommended against using an IT person as a 30(b)(6) witness because they might be inclined to go into too much detail about certain issues about data systems, and not be knowledgeable about general issues pertaining to a company.

Should a 30(b)(6) Witness Have Access to Privileged Information?

If a 30(b)(6) witness brings up a privileged document, it can potentially bind a party. The 30(b)(6) witness should be restricted in her access to privilege documents. Judge Hedges recommended against giving privileged information to a 30(b)(6) witness.

Answers to questions should be limited to factual responses and not go into detail about how the facts were obtained.

Should a 30(b)(6) Witness Be Technically Savvy?

Kibbe would rather have someone who is an articulate deponent testify who has to taught certain technical information, rather than use a person knowledgeable about technology be used for a deposition, if they are a poor witness.

Preparing a 30(b)(6) Witness

A good witness will be able to take direction from counsel. It's very important to use a 30(b)(6) deposition to make a party's affirmative case. A specific set of topics should be requested for the 30(b)(6) deposition.

30(b)(6) witnesses may be questioned on a variety of subjects, but the notice should provide a list of the subjects to be addressed. Usually the lists provided are fairly generic - e.g., asking about a company information systems.

Judge Hedges recommended getting a Rule 502(d) order to guard against the inadvertent disclosure of privileged information.

Worst Case Scenarios

A 30(b)(6) witness' admissions are binding to a corporation. A bad 30(b)(6) deposition can have devastating consequences. A witness may get too technical and unintentionally admit to spoliation. Sanctions may be imposed, but judges will not impose sanctions lightly. They may direct a second 30(b)(6) deposition to be taken if the first deposition doesn't cover certain issues.

An opposing counsel taking a 30(b)(6) should not be allowed to go beyond the scope of a specific set of topics.

Attorneys should discuss the possibility of 30(b)(6) depositions at the Rule 26(f) conference. In 2014 case discussed by Judge Hedges, the court directed targeted interrogatories to be served before a 30(b)(6) deposition was taken. He noted that courts don't like fishing expeditions. They will need a reason why questions are being asked about something like a company's IT system.

The amendments to the FRCP in 2015 propose remedial measures as part of sanctions, and, according to Judge Hedges, a 30(b)(6) deposition may be a means of doing this.

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