Simmons Trial Practice

Telephone (503) 221-2000 – Civil Litigation

Forcing Efficient 30(b)(6) Deposition Testimony

by

For a link to a notice of deposition form, scroll down to the end of this post. A deposition under Federal Rules of Civil Procedure 30 (b) (6) requires an adverse organization to provide a  witness who will give up its information on the specified topics.

“FRCivP 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. 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. …”

However, an adverse witness is motivated to not cooperate and to neither know nor remember anything specific. This makes the discovery process less efficient, more costly, and maybe incomplete.

To lessen the chance of stalling and delaying deposition answers (not that any witness would ever try to stall or delay), I have found it helpful to send a letter with the notice of deposition commenting on the company’s obligation to investigate and review the topics of a 30(b)(6) notice of deposition.

The following is an example letter to send after conferring with adverse counsel about the topics, and setting a convenient time. With the letter I include a one-page summary of the law. Sophisticated adverse counsel will understand that the letter is intended to be a concise way to persuade the Judge, if a discovery dispute breaks out.

[Letter to: Attorney for adverse party]

Re: [case name], US District Court No. ______

Dear Ms. ______:

We have discussed deposition scheduling a number of times. The deposition of XYZ Company is scheduled for _______ 200_ .

To clarify the topics I wish to cover, I will depose XYZ Company under FRCivP 30(b)(6) on these topics:

1. Safety standards used or referred to by XYZ Company that relate to _______. I expect that this will include [specific references]. In any event the witness will need to testify about sources XYZ Company refers to for safety standards. The witness will need to be familiar with the specific application of the relevant standards to [specifics of case].

2. As pertaining to [a relevant contract]: what XYZ Company understood in 200_ to be its obligations for [relevant performance] as to [relevant circumstances], [relevant place], [relevant communications with others], [relevant knowledge], and [relevant action].

3. Other information about the [relevant incident].

Please note that, under FRCivP 30(b)(6), XYZ Company has an obligation for the designated witness to investigate and prepare to testify on the designated topics. See enclosed quotation from Calzaturficio S.C.A.R.P.A. V. Fabiano Shoe Company, Inc., 201 F.R.D. 33 (D.Mass 2001), and cases cited therein.

As is my practice, a formal Notice of Deposition under FRCivP 30(b)(6) is also enclosed.

Yours truly,

E. J. Simmons

Encl

………………………………………….

The following quotation is from Calzaturficio S.C.A.R.P.A. V. Fabiano Shoe Company, Inc., 201 F.R.D. 33, 36:

Indeed, the law is well-established that a 30(b)(6) deponent does have an affirmative obligation to educate himself as to the matters regarding the corporation.

Rule 30(b)(6) explicitly requires [a company] to have persons testify on its behalf as to all matters known or reasonably available to it and, therefore, implicitly requires persons to review all matters known or reasonably available to it in preparation for the 30(b)(6) deposition. This interpretation is necessary in order to make the deposition a meaningful one and to prevent the “sandbagging” of an opponent by conducting a half-hearted inquiry before the deposition but a thorough and vigorous one before the trial. This would totally defeat the purpose of the discovery process…Preparing for a Rule 30(b)(6) deposition can be burdensome. However, this is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business…[A company] does not fulfill its obligations at the Rule 30(b)(6) deposition by stating that it has no knowledge or position with respect to a set of facts or area of inquiry within its knowledge or reasonably available….

United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C., 1996), aff’d 166 F.R.D. 367 (M.D.N.C., 1996). See also Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 504 (D. Md., 2000) (“Upon notification of a deposition, the corporation has an obligation to investigate and identify and if necessary prepare a designee for each listed subject area and produce that designee as noticed.”); Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb., 1995) (citing Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C., 1989)) (“If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.”); Buycks-Roberson v. Citibank Fed. Savings Bank, 162 F.R.D. 338, 343 (N.D. Ill., 1995)(stating that the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved.); Securities and Exchange Commission v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y., 1992) (citing Mitsui & Co. (U.S.A.), Inc. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62, 67 (D.P.R., 1981)) (“under Rule 30(b)(6), the deponent ‘must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the party noticing the deposition] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed…as to the relevant subject matters.'”); ABA Civil Discovery Standards (Aug. 1999), § 19(f) (“Counsel for the [corporation] should prepare the designated witness to be able to provide meaningful information about any designated area(s) of inquiry.”).

…………………………………..

For an example of a notice of deposition under FRCP 30 (b) (6), see the Depositions page. This form is based on a notice that was served in a personal injury case involving major injuries resulting from failure to follow safety standards. .

Taking Video Depositions for Federal Cases

by

In most depositions, the testimony is taken down by a stenographic court reporter. The court reporter then produces a transcript. Using the deposition transcript works well in support of a motion for summary judgment.

However, not all cases are resolved by summary judgment. For those cases not decided by motion, video depositions are better for settlement assessment and are much better for impeachment at trial.

Judges recognize why video depositions are better.

“… video depositions provide greater accuracy and trustworthiness than a stenographic deposition because the viewer can employ more of his senses in interpreting the information from the deposition.” Burlington City Board of Education v. U.S. Mineral Products Co., Inc., 115 F.R.D 188, 189 (Middle District of North Carolina 1987).

Independent videographers are available, but an independent videographer is not required. The attorney taking the deposition may also take the video. Juanita J. Ott v. The Stipe Law Firm, 169 F.R.D. 380 (Eastern District of Oklahoma 1996); Rice’s Toyota World, Inc. v. Southeast Toyota Distributors, 114 F.R.D. 647 (Middle District of North Carolina 1987).

In my office, we make a video of all depositions we take. The legal assistant runs the camcorder, while the court reporter takes down the traditional transcript. Later, we make digital video clips.

Federal Rules

F.R.Civ.P. 30(b)(2) allows video taping. The notice of deposition must state that video will be used to record the testimony. Note that F.R.Civ.P. 30(b)(4) requires certain statements on the record to be done at the beginning of each tape, and a statement to be made at the end of the tape. In my office, we use a checklist during the deposition to ensure that the F.R.Civ.P. requirements are met.

Hardware

The equipment is inexpensive. In a lawyer’s office, the camcorder’s audio quality is important. For about $250.00 you can buy a mini-DV camcorder, for example the Canon ZR900. For $20 you can buy a short tripod to sit the camcorder on the conference room table. With the camera near the witness, the built-in microphone will clearly record the witness testimony.

To make the video in the first place, the legal assistant just sets up the camcorder, points it at the witness, and presses the Record button. I do not recommend that you try to use separate microphones or special lighting. Trying too hard in this way increases the chances of an equipment problem. Relax, and let the camcorder do the work. Have plenty of tapes, label them, and keep feeding the tapes to the camcorder every hour as needed.

Software

After the deposition, the digital video from the camcorder is edited on a computer. A Firewire cable connects the camcorder to the computer. For a Windows computer, Sony Vegas or the free Windows Moviemaker is adequate to make clips. On a Mac, iMovie is more than adequate and easy to use.

At Trial

To introduce video deposition excerpts at trial, you must be prepared in advance. This is similar to using a written deposition transcript: you must know in advance which excerpts you will present. The practical procedure is to have, for each topic to introduce by video testimony, a clip. For example:

  • Clip 1: Two minute excerpt: Defendant’s president admits liability.
  • Clip 2: One minute excerpt: Defendant’s vice-president admits the amount of damages.

Then, all you have to do is play the clip at the appropriate time from the notebook computer using a projector or big screen TV. (Remember to provide computer speakers, so the jury can hear the witness.) Before you play the tape, you will let the Judge and adverse counsel know what you plan to introduce. The Judge will be given a transcript of what is on the clip. The other side may or may not object. If an objection is sustained, re-editing may be needed.

Showing a video clip has much more impact than reading from the transcript. You are not trying to compete with a movie studio in production quality. You only have to be better than your opponent’s boring reading from a transcript.

Conclusion

There are three purposes for depositions: discovery, settlement assessment and impeachment. For settlement assessment and impeachment, video recording of depositions is better. Currently available camcorders and software make video depositions an inexpensive and simple part of the discovery process.

If you want to try taking a video deposition using your staff, let my office know. We will send you a copy of the video deposition checklist, including what statements the court reporter must make while the tapes are recorded.

– E. J. Simmons