404.06(b) Fed. R. Civ. P. 30(b)(6) Deposition of a Corporation, Organization, Partnership, Association, or Other Juristic Person
Fed. R. Civ. P. 30(b)(6) 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. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. 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 preferred method for deposing a corporation, organization, partnership, association, or other juristic person is through a deposition under Fed. R. Civ. P. 30(b)(6). [ Note 1.] A Fed. R. Civ. P. 30(b)(6) deposition provides a party an efficient way to find out details about the organization as well as learn information that might warrant further exploration through individual depositions of natural persons.
The deponent at a Fed. R. Civ. P. 30(b)(6) deposition is the organization, and the organization speaks through the representative appearing at the deposition. [ Note 2.] A Fed. R. Civ. P. 30(b)(6) witness is responsible for providing all the relevant information known or reasonably available to the organization and his or her answers bind the organization. [ Note 3.] A party may notice a Fed. R. Civ. P. 30(b)(6) deposition of an organization without naming a specific person to be deposed, instead describing the information sought. The organization then must designate one or more individuals to testify on the organization’s behalf. [ Note 4.] A party seeking to depose the adverse party organization through a particular officer, director, or managing agent may notice the deposition of that officer, director, or managing agent, in their organizational capacity, under Fed. R. Civ. P. 30(b)(1). [ Note 5.] See TBMP § 404.03 and TBMP § 404.06(a) for information regarding depositions of natural persons, both parties and non-parties.
When an organization is named as a deponent by a party seeking discovery, the subject matter of the deposition is to be described with reasonable particularity in the notice. [ Note 6.] An organization served with a Fed. R. Civ. P. 30(b)(6) notice of deposition has an obligation not only to pick and produce persons who have knowledge of the subject matter identified in the notice [ Note 7.] but also to prepare those persons so that they can give complete, knowledgeable, and binding answers as to matters known or reasonably available to the organization. [ Note 8.] The organization may either produce as many deponents as are necessary to respond to the areas of inquiry in the notice if there is no witness with personal knowledge of all areas of inquiry, or alternatively, may produce a witness who reviews the organization’s records to become familiar with the topics for the deposition so that he or she may give knowledgeable and binding answers for the organization. [ Note 9.] If more than one Fed. R. Civ. P. 30(b)(6) witness will be designated, those individuals should be identified and the areas on which each person will testify be described. [ Note 10.] Even if no current employees have knowledge of matters identified in the notice, an organization is not relieved of preparing a Fed. R. Civ. P. 30(b)(6) designee for deposition to the extent that such matters are reasonably available to the organization from past documents, past employees, or other sources. [ Note 11.]
If it becomes obvious during the course of a Fed. R. Civ. P. 30(b)(6) deposition that the organization’s designee is deficient regarding his or her knowledge of matters reasonably known to the organization, the organization is obliged to provide a substitute and to prepare a designee to provide testimony in areas as to which its other representative was uninformed. [ Note 12.]
A party may be subject to a motion to compel for failure to designate a person pursuant to Fed. R. Civ. P. 30(b)(6) or if such designated person fails to appear for deposition or fails to answer any question propounded in a discovery deposition. [ Note 13.] A party may be subject to sanctions for failure of a designated person to attend the Fed. R. Civ. P. 30(b)(6) discovery deposition if after being served with proper notice, the party informs the party seeking the deposition that no response will be made. [ Note 14.] The production of an unprepared witness is tantamount to a failure to appear. [ Note 15.]
For more information regarding motions to compel and motions for sanctions, see TBMP § 523 and TBMP § 527.
Even though more than one person may be designated to testify under Fed. R. Civ. P. 30(b)(6) on various topics identified in the deposition notice, for purposes of the ten-deposition limit under Fed. R. Civ. P. 30(a)(2)(A)(i), which also applies in Board proceedings, [ Note 16.], the Fed. R. Civ. P. 30(b)(6) deposition is treated as a single deposition. [ Note 17.] For purposes of the time limitation under Fed. R. Civ. P. 30(d)(1) (limiting a deposition to "1 day of 7 hours"), the deposition of each designated person under a Fed. R. Civ. P. 30(b)(6) notice of deposition is considered a separate deposition. [ Note 18.]
Prior deposition testimony from an individual witness on a particular topic, does not relieve a party organization of its responsibility to designate a witness in response to a Fed. R. Civ. P. 30(b)(6) notice of deposition on that topic as individual witness testimony under Fed. R. Civ. P. 30(b)(1) is not binding on the organization. [ Note 19.]
NOTES:
1. Folwell v. Hernandez, 210 F.R.D. 169, 173 (M.D.N.C. 2002). See also City National Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1672 n.4 (TTAB 2013) (citing Fed. R. Civ. P. 30(b)(6) Advisory Committee Notes) ("one purpose of this rule is that it ‘will curb the "bandying" by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it.'").
2. Fed. R. Civ. P. 30(b)(6). See Pioneer Drive, LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552, 558 (D. Mont., 2009) (Fed. R. Civ. P. 30(b)(6) designee speaks for the organization as a whole and must make efforts to be able to do so). 8A C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2103 (3d ed. 2020).
3. Fed. R. Civ. P. 30(b)(6); 8A C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2103 (3d ed. 2020).
4. Folwell v. Hernandez, 210 F.R.D. 169, 172 (M.D.N.C. 2002). ("One of the important consequences of Rule 30(b)(6) is that under it, only the [organization] selects the persons who will testify.").
5. See JSC Foreign Economic Association Technostroyexport v. International Development and Trade Services, Inc., 220 F.R.D. 235, 238 (S.D.N.Y. 2004) (Although a corporate officer, director, or managing agent may be subject to deposition by notice under Fed. R. Civ. P. 30(b)(1), a corporate employee or agent who does not qualify as an officer, director, or managing agent of the corporation is not subject to deposition by notice under Fed. R. Civ. P. 30(b)(1)). Cf. HighBeam Marketing LLC v. Highbeam Research LLC, 85 USPQ2d 1902, 1906 (TTAB 2008) (expert witness in employ of opposer for Board opposition proceeding was not an officer, director or managing agent of opposer and was "technically a non-party witness" subject to deposition by subpoena).
6. Fed. R. Civ. P. 30(b)(6); Red Wing Co. v. J.M. Smucker Co., 59 USPQ2d 1861, 1864 (TTAB 2001) (party seeking discovery from corporation by deposition must describe subject matter of deposition with reasonable particularity in notice).
7. City National Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1672 n.4 (TTAB 2013) ("Rule 30(b)(6) anticipates that a party’s designated witness will not necessarily have personal knowledge of all matters but will nonetheless offer testimony regarding information that the ‘party’ should be able to provide."); Kellogg Co. v. New Generation Foods Inc., 6 USPQ2d 2045, 2049 n.5 (TTAB 1988). See also Mattel Inc. v. Walking Mountain Productions, 353 F3d 792, 69 USPQ2d 1257, 1260 n.4 (9th Cir. 2003) ("Rule 30(b)(6) depositions . . . are often referred to as ‘persons most knowledgeable’ or ‘persons most qualified’ depositions because ‘the notice of deposition or subpoena is directed at the entity itself’ and ‘[t]he entity will then be obligated to produce the "most qualified" person [or persons] to testify on its behalf . . . .’").
8. A&E Products Group L.P. v. Mainetti USA Inc., 70 USPQ2d 1080, 1086 (S.D.N.Y. 2004) (and cases cited therein).
9. International Finance Corp. v. Bravo Co., 64 USPQ2d 1597, 1605 (TTAB 2002).
10. Fed. R. Civ. P. 30(b)(6).
11. United Technologies Motor Systems Inc. v. Borg-Warner Automotive Inc., 50 USPQ2d 1060, 1062 (E.D. Mich. 1998).
12. United Technologies Motor Systems Inc. v. Borg-Warner Automotive Inc., 50 USPQ2d 1060, 1062 (E.D. Mich. 1998). See Tulip Computers International B.V. v. Dell Computer Corp., 63 USPQ2d 1527, 1533 (D. Del. 2002) (purported failure to produce an adequately prepared Fed. R. Civ. P. 30(b)(6) witness may require a second deposition of that or another Fed. R. Civ. P. 30(b)(6) witness and payment of costs for second deposition).
13. 37 C.F.R. § 2.120(f). See United Technologies Motor Systems Inc. v. Borg-Warner Automotive Inc., 50 USPQ2d 1060, 1063 (E.D. Mich. 1998) (motion to compel due to unprepared 30(b)(6) witness); S. Industries Inc. v. Lamb-Weston Inc., 45 USPQ2d 1293, 1297-98 (TTAB 1997) (motion to compel appearance at Fed. R. Civ. P. 30(b)(6) deposition due to refusal to appear).
15. United Technologies Motor Systems Inc. v. Borg-Warner Automotive Inc., 50 USPQ2d 1060, 1061 (E.D. Mich. 1998).
16. See Spliethoff's Bevrachtingskantoor B.V. v. United Yacht Transport LLC, 2020 USPQ2d 10605, at *2 (TTAB 2020) (the deposition limit of the Federal Rules of Civil Procedure applies in Board proceedings).
17. Fed. R. Civ. P. 30(b)(6) Notes of Advisory Committee on Rules –1993 Amendment.
18. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment.
19. Cf. Foster-Miller Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 54 USPQ2d 1193, 1205 (1st Cir. 2000) (fact that examining party had previously taken individual depositions of employees who were regarded as most knowledgeable on certain topics identified in a Fed. R. Civ. P. 30(b)(6) notice of deposition does not obviate responsibility of responding party to designate and produce those individuals as witnesses competent to testify on those topics on behalf of corporation).