What is a 30(b)(6) deposition and why do you want one?

Most folks have seen at least the Hollywood version of a deposition, but did you know they come in several flavors?

Federal Rule of Civil Procedure 30 governs oral depositions at the federal level, and 30(b)(6) is when organizations - you know, those fictitious entities that only exist on paper and act through agents - are deposed. Organizational parties to a lawsuit are noticed for depositions, and organizations that are witnesses are served subpoenas instead, but either way, FRCP 30(b)(6) is a powerful tool to get testimony from an organization and bind them to it.

A quick glance at the rule shows the duty it puts on the organization:

• Who can be deposed: "a public or private corporation, a partnership, an association, a governmental agency, or other entity"

• What they must do: "designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf . . . The persons designated must testify about information known or reasonably available to the organization"

• And the duty of the deposer: "In its notice or subpoena . . . must describe with reasonable particularity 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 organization chooses who testifies on behalf of the organization, but the organization has a duty to testify about information known or reasonably available to the organization. Prior to 30(b)(6), organizations would often employ bandying - corporate officers and employees would all deny having information and point the fingers at each other someone else claiming they did. 30(b)(6) was employed to eliminate bandying.

30(b)(6) gives the deposer the duty to describe with reasonable particularity the matters for examination in the notice or subpoena to the organization. Be aware some courts interpret "reasonable particularity" as what you and I might call painstaking specificity.

I suggest you do a mix of both - outline the deposition topics with reasonable particularity, but in the subpoena or notice, drill down with specific questions to ensure they can't show up, fail to be prepared to answer them, and then after the deposition claim to have information they didn't know to have at the 30(b)(6). Here is an example of a real life 30(b)(6) deposition notice.

Barton v Real Innovation Notice of Deposition Real Innovation Inc.pdf

Download PDF • 282KB

The scope of a 30(b)(6) deposition is the same as a 'regular 30(b)(1)' deposition - asking for facts, sources of information, positions, subjective beliefs, opinions, interpretations of documents, interpretations of events, and contentions and affirmative defenses are all fair game.

There is a non-party wrinkle to 30(b)(6) depositions that are compelled via a subpoena. FRCP 45 controls the possible locations of 30(b)(1) depositions, but the organization specifies the deponent for 30(b)(6) depositions. FRCP 45 still controls. It is theoretically possible an organization could specify multiple witnesses all in inconvenient locations.

30(b)(6) depositions have an advantage over 30(b)(1) deposition. Typically, individuals can only be deposed once. This limitation does not apply to 30(b)(6) depositions. There could be an early foundational 30(b)(6) deposition to explore the existence and location of information and documents. Then a ‘regular’ 30(b)(6) deposition to explore the merits of the case, and then a follow-up 30(b)(6) deposition to nail down later developments in the case.

An organization appears vicariously through its 30(b)(6) witness(es) and that testimony binds the organization. How tightly they are bound has changed over time and in different jurisdictions. In the past 30(b)(6) witness testimony could be tantamount to a judicial admission, but most jurisdictions moved to viewing it as an evidentiary admission - something that can be changed later with sufficient explanation. Part of that explanation being why the organization was unable to have that information available at the 30(b)(6) deposition.

Some attorneys see this as an opportunity for gamesmanship – fail to prepare the 30(b)(6) witness before the deposition, then investigate the facts, and later explain the changed witness testimony through new learnings. In the ninth circuit, be mindful of Snapp v. United Transp. Union, 889 F.3d 1088, (9th Cir. 2018).

"[A ] corporation generally cannot present a theory of the facts that differs from that articulated by the designated Rule 30(b)(6) representative" . . . As such, "courts have ruled that because a Rule 30(b)(6) designee testifies on behalf of the entity, the entity is not allowed to defeat a motion for summary judgment based on an affidavit that conflicts with its Rule 30(b)(6) deposition or contains information that the Rule 30(b)(6) deponent professed not to know" . . . This general proposition should not be overstated, however, because it applies only where the purportedly conflicting evidence truly, and without good reason or explanation, is in conflict, i.e. , where it cannot be deemed as clarifying or simply providing full context for the Rule 30(b)(6) deposition.

It is the deposer's responsibility to elicit testimony from the corporate deponents such that they can't weave a completely different story that isn't in conflict with the 30(b)(6) like these defendants tried doing.

One note, this wording in the example above

Pursuant to FRCP 30(b)(6), Real Innovation Inc (“RI” or “RIL”) is required to designate and fully prepare one or more officers, directors, managing agents, or other people who consent to testify on behalf of Real Innovation Inc, and whom Real Innovation Inc will fully prepare to testify regarding all information that is known or reasonably available to Real Innovation Inc’s organization regarding the following designated matters:

was not randomly chosen, it is critical the wording follow the rules or a court might not bind the organization to the testimony.

Here is a heads up that a dumb telemarketing opposing lawyer might try and pull one you if your FRCP 45 subpoena to a non-party for a FRCP 30(b0(6) deposition. The entity deposed designates the deponent, not you, and a dumb telemarketing opposing lawyer might try using a holding from Donoghue v. Orange County, 848 F.2d 926, 928 (9th Cir. 1987) on you.

The district court quashed this subpoena because it failed to designate an individual desired to testify. Fed.R.Civ.P. 45 requires that individuals be specifically named, so this decision was not an abuse of discretion.

But read the top of Donaghue! This case was about using a subpoena to bring a witness to trial, not a deposition, and FRCP 30(b)(6) is about depositions.

The motion to quash was argued on the second day of the trial and the court did not think it reasonable to expect production of such extensive information at that point in time.

See Flat River Farms LLC v. MRC Energy Co., Civil Action 19-1249, (W.D. La. Dec. 30, 2024)

“While Rule 30(b)(6) specifically contemplates that a party may serve a subpoena on a corporation who must then designate a representative to testify, the rule applies only to discovery depositions, not trial testimony. Thus, Rule 30(b)(6) may not be used in conjunction with Rule 45 to serve a subpoena on a corporation for purposes of securing trial testimony without naming a particular individual, and Rule 45 does not contemplate service of a trial subpoena on a corporate entity.

If you are in the ninth circuit and you are concerned the above will set your court straight, see HTC Corporation v. Technology Properties Limited, Case No.: 5:08-cv-00882-PSG, 2 (N.D. Cal. Sep. 20, 2013)

As an initial matter, the court agrees with TPL that Donoghue is not controlling here. The Ninth Circuit's holding in that case emphasized a trial court's discretion in determining whether to quash a trial subpoena and merely held that the trial court in that particular case had not abused its discretion. Moreover, Rule 45 has indeed undergone both substantive and cosmetic revision since that opinion issued in 1987. Having reviewed Conyers as well as other more recent decisions addressing a subpoena seeking corporate testimony on listed topics from a third party located within the state of the court, the court finds that such a subpoena may be appropriately served without running afoul of the limits of Rule 45.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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