Thursday, August 24, 2017

Can the court order that a deposition of a fact witness be substituted for a noticed 30(b)(6) deposition?

In a 2014 post titled Duty to Produce a 30(b)(6) Designee , Michael Lowry reproduces text from MJ Leen’s unpublished order in Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2013 U.S. Dist. LEXIS 114164, 2013 WL 4101813 (D. Nev. August 13, 2013)

Among other points, the text observes

In re: Vitamins Antitrust Litigation, 216 F.R.D. at 172 (corporation is obligated to produce one or more Rule 30(b)(6) witnesses who are thoroughly educated about the noticed deposition topics and facts known to the corporation or its counsel).

As to the matter of facts, can the Court order that a party depose a fact witness INSTEAD OF a 30(b)(6) witness?

The Court in Richardson v. Rock City, 2010 U.S. Dist. LEXIS 16647 (MD Tenn 2010) answered this question in the negative:

The defendant also describes many of the 21 topics, see Docket Entry No. 44-1, as relating to fact-intensive issues requiring the testimony of fact witnesses rather than a Rule 30(b)(6) deposition of a corporate designee.

The defendant objects to Topics 4, 5, 6, 8, 9, 10, 11, 13, and 17 in large part because the plaintiff seeks fact-specific information that is normally elicited by means other than a Rule 30(b)(6) deposition since such information does not relate to the defendant's corporate position. The plaintiff contends that he is entitled to take discovery as he sees fit and should not have to be forced into a mold defined by the defendant.


However, the J.M. Taylor Court did not, as the defendant suggests, hold that a Rule 30(b)(6) witness cannot be noticed to testify about the facts to which a "mere corporate employee" could also testify or that a Rule 30(b)(6) deposition is limited to the defendant's "position" in the case. Instead, the J.M. Taylor Court simply explained the rationale of Rule 30(b)(6) and emphasized that the Rule 30(b)(6) testimony is the testimony of the corporation, not the individual deponent.


However, the Court does not find support for the defendant's position that the testimony of a Rule 30(b)(6) witness cannot be used as a substitute for testimony of fact witnesses.

In fact, the only case that the Court found that addressed the issue head-on was Emon v. State Farm Mut. Auto. Ins. Co., 2007 U.S. Dist. LEXIS 5679, 2007 WL 216138 (E.D. Mich. Jan. 26, 2007), in which the Court affirmed the Magistrate Judge's order granting the plaintiff's motion to compel Rule 30(b)(6) depositions when the defendant argued that the notice required testimony from a fact witness rather than a Rule 30(b)(6) witness, pointing out that the defendant had not cited any authority in support of its position. Here too, the Court finds that the defendant has not cited any authority to support its position that the plaintiff is precluded from noticing a Rule 30(b)(6) deposition on topics to which fact witnesses could testify.


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