You have a suit against a corporation. The corporation has a lot of information you would like your hands on. How do you proceed? Who can you get to speak “for the corporation?” In the federal system, there is a rule. The rule is known as Federal Rule of Civil Procedure 30(b)(6). On its surface, Rule 30(b)(6) looks straightforward. The rule allows a corporation or other entity to designate a witness to testify on the organization’s behalf and requires only that the designated witness be able to testify about information “known or reasonably available to the organization.” I’ve been at 30(b)(6) depositions. They are not straightforward.
The first thing you notice is that the organization being deposed often has difficulty determining who should testify about the designated topics in the Notice of Deposition. This, then, gets the deposing lawyer upset and frustration sets in. In some instances, it seems as if there is no one within an organization who can pull it all together; that is, act as a single spokesman. This is because there are times when it seems no one within the organization being deposed has actual knowledge of one or more of the topics identified in the deposition notice. Often it appears that there is no way for the corporate designee to be brought up to speed so they can answer the questions being asked.
There is almost always a difference between the deposing party’s (and its lawyers’) expectations and those of the organization whose designee is being deposed. Under New Hampshire law, if you depose a corporate representative, you need to make it clear on the record that they are testifying on behalf of the corporation. To do this, you must show the authority and position of the individual being deposed. It might be wise to file a motion asking that the corporation designate someone to be deposed on its behalf. Otherwise, a deposition will be taken and a false assumption will be made that the individual has actual authority to speak on behalf of the corporation when they don’t. The federal rule requires that the topics for deposition be laid out in writing.
The party noticing the deposition must describe the topics with reasonable particularity, while the organization being deposed must produce a witness or witnesses who can testify about the organization’s knowledge about those topics. The rule does not require the organization to provide the person with the most knowledge about the topics; rather, the designee need not have any personal knowledge as long as he or she is able to provide binding answers on behalf of the organization.
The above procedure is a good procedure to follow if you are allowed to take such a deposition at the State level.