What is a FOUNDATIONAL 30(b)(6) deposition and why do you want one?
- Peter Schneider
- Jun 4
- 8 min read
Previously I wrote about what is a 30(b)(6) deposition and why do you want one, and I noted in another article about a TCPA plaintiff getting the run around that a foundational 30(b)(6) deposition might be useful. But what is a foundational 30(b)(6) deposition?
A foundational 30(b)(6) deposition is typically done at the outset of a lawsuit and it isn't intended to get into the merits of the lawsuit, but to understand organization structure, how and where documents are retained, the ins and outs of the organization's computer database, what employees have what responsibilities, and so on.
Again, a foundational 30(b)(6) deposition should avoid questions about the merits of the dispute, but should be about using what you learn to craft efficient discovery requests later, or to overcome objections that documents don't exist, or can't be found, or are burdensome to produce. In the case of the Doughty v Bright Solar Marketing lawsuit where the plaintiff was getting the run-around, a foundational 30(b)(6) might be useful to understand the organizational structure of the many inter-related business entities.
The matters for examination in a 30(b)(6) foundational deposition might look like this:
Pursuant to FRCP 30(b)(6), Foreign currency trading business is required to designate and fully prepare one or more officers, directors, managing agents, or other people who consent to testify on behalf of Foreign currency trading business, and whom Foreign currency trading business will fully prepare to testify regarding all information that is known or reasonably available to Foreign currency trading business’s organization regarding the following designated matters:
The description and existence of the documents identified in the Schedule of Documents below;
How the documents identified in the Schedule of Documents below are made available, disseminated, and/or retrieved by authorized and/or intended users and/or readers;
The retention/destruction policies that relate to any of the documents identified in the Schedule of Documents below;
The custody and location of the documents identified in the Schedule of Documents below;
The organization, indexing and/or filing of the documents identified in the Schedule of Documents below; and
The available methods of search for the documents identified in the Schedule of Documents below.
The oral examination to be subject to continuance or adjournment from time to time or place to place until completed, and to be taken on the grounds and for the reason the said witnesses will give evidence material to the establishment of Plaintiffs’ case.
SCHEDULE OF DOCUMENTS
Records of all assets bought and sold as part of the Foreign currency trading business profit making efforts from 2019 till today.
Records of money taken into the Foreign currency trading business from investors from 2019 till today.
Records of money given to investors from the Foreign currency trading business from 2019 till today.
Records of expenses incurred by the Foreign currency trading business from 2019 till today.
Records of money transferred from the USA to The People’s Republic of China for use in the Foreign currency trading business from 2019 till today.
Records of money transferred from the The People’s Republic of China to the USA for use in the Foreign currency trading business from 2019 till today.
Records of losses sustained by the Foreign currency trading business from 2019 till today.
The questions you ask during the foundational 30(b)(6) deposition then might be organized around these different topics. See the sample questions below.. You will note that not a single question below goes to the merits of the dispute - a second 30(b)(6) deposition can address those later.
The typical foundational 30(b)(6) deposition is all about preventing objections to your document production requests such as they don't have documents responsive to your request, they don't understand your request, or retrieving the documents is prohibitively expensive. They are also useful to identify witnesses or potential defendants.
Find out if you are deposing the correct witness, or a unprepared witness.
Topic #1 - Is this the Right Witness?
What has the “Foreign currency trading business” done to gather all the knowledge known or reasonably available to “Foreign currency trading business” with respect to the existence of the documents in Request #
How was the knowledge known or reasonably available to “Foreign currency trading business” made known to you?
What is your experience working with the documents identified in the [go through each Schedule of Documents item number]?
Are there any other people who have knowledge about the documents identified in [go through each Schedule of Documents item number]?
List their names please.
Is there anyone else?
Who else knows what documents exist for the [go through each Schedule of Documents item number]?
List their names please.
Is there anyone else?
Have you talked to any of these people to ensure you have one hundred percent of the information known to the “Foreign currency trading business” about the existence of the documents listed in the [go through each Schedule of Documents item number]?
Why not?
What did they tell you?
What has the “Foreign currency trading business” done to make sure you have all of the knowledge known or reasonably available to the “Foreign currency trading business” with respect to identifying the documents which would be responsive to the Schedule of Documents?
Find out what documents the organization acknowledges exist
Topic #2 - What Documents Exist?
What do you understand the documents named in the [go through each Schedule of Documents item number] to be?
Describe the documents in [go through each Schedule of Documents item number] please.
What kind of documents are they?
How does the “Foreign currency trading business” categorize them?
Have you identified every document that would fall under [go through each Schedule of Documents item number]?
What are they?
Are there any documents you should have listed but didn’t?
Are there any documents that you thought might be responsive to the request that you decided not to mention today?
What are they?
Who is creating the documents so that you can go to the source if needed
Topic #3 - Who Knows How the Documents are Created?
What has the “Foreign currency trading business” done to gather all the knowledge known or reasonably available to them, with respect to the system, process, and purpose for the creation, duplication, and storage of the documents or electronically stored data requested in [go through each Schedule of Documents item number].
How was the knowledge, known or reasonably available to the “Foreign currency trading business”, made known to you?
What was your role in gather all the knowledge, known or reasonably available to the “Foreign currency trading business” with respect to systems, process, and purpose for the creation, duplication, and storage of the documents or electronically stored data requested in [go through each Schedule of Documents item number]?
What is your experience working with the creation, duplication, and storage of the documents identified in [go through each Schedule of Documents item number]?
What is your experience working with the electronic creation, duplication, and storage of the documents identified in [go through each Schedule of Documents item number]?
Who are all the people with knowledge of the electronic creation, duplication, and storage of the documents identified in [go through each Schedule of Documents item number]?
Who were all the people involved in gathering the information regarding the electronic creation, duplication, and storage of the documents identified in [go through each Schedule of Documents item number]?
What has the “Foreign currency trading business” done to make sure you have all the knowledge know or reasonably available to the “Foreign currency trading business” with respect to the electronic creation, duplication, and storage of the documents [go through each Schedule of Documents item number]?
Find out who or what device is creating or generating the documents
Topic #4 - On What Device Are the Documents Created?
How were the documents created?
Were they created manually or electronically?
Were they created in the ordinary course of business?
Why are these documents created or generated?
Who created the documents?
Which computers were they created on?
Who could tell us?
Did you talk to them?
Why not?
What did they say?
Are there multiple copies of the documents in case on source suddenly dries up?
Topic #5 - Are the Documents Duplicated?
Are the documents in Request # duplicated?
Under what circumstances are they duplicated?
How and where are they stored?
Are they stored as paper copies or electronically?
What are the documents used or or why is the organization keeping them?
Topic #6 - What is the Purpose of the Documents?
What is the purpose for the creation and use of the documents or electronically stored data requested in [go through each Schedule of Documents item number]?
Tell me about that, please.
How are those documents used in the day-to-day operations of the “Foreign currency trading business”?
Have documents been destroyed? If so, were they kept pursuant to their retention policy? Where they destroyed after the onset of litigation?
Topic #7 - Document Destruction and Retention
What has the “Foreign currency trading business” done to gather all the knowledge, known or reasonably available to the “Foreign currency trading business”, with respect to the destruction and retention policies for documents in [go through each Schedule of Documents item number]?
How was the knowledge, known or reasonably available to the “Foreign currency trading business”, made known to you?
What is your experience working with destruction and retention policies for documents identified in [go through each Schedule of Documents item number]?
Who are all the people with knowledge of destruction and retention policies for documents in Request #?
Who were all the people involved in gathering the information regarding destruction and retention policies for documents identified in [go through each Schedule of Documents item number]?
What has the “Foreign currency trading business” done to make sure you have al the knowledge, known or reasonably available to the “Foreign currency trading business”, with respect to destruction and retention polices for documents in Request #?Does the “Foreign currency trading business” have a document retention and destruction policy?
Is it a written policy?
Where is the written policy kept?
How is the policy suppose to work?
What is the custom and practice for destruction of documents that are not identified in the written retention and destruction policy?
Have any documents in [go through each Schedule of Documents item number] been destroyed before your search began?
Where are the documents now?
Topic #8 - Where are the documents located?
What has the “Foreign currency trading business” done to gather all the knowledge, known or reasonably available to “Foreign currency trading business” with respect to the location of documents in [go through each Schedule of Documents item number]?
How was the knowledge, known or reasonably available to “Foreign currency trading business”, made known to you?
What is your experience working with locating documents identified in [go through each Schedule of Documents item number]?
Who knows about where the documents in [go through each Schedule of Documents item number] are kept?
Who does?
Who is in charge of storing the documents?
Did you talk to the person in charge?
Why not?
Who were all the people involved in gathering the information regarding the location of documents in [go through each Schedule of Documents item number]?
What has “Foreign currency trading business” done to make sure you have all the knowledge, known or reasonably available to the “Foreign currency trading business”, with respect to the location of documents in [go through each Schedule of Documents item number]?
Where are the documents in [go through each Schedule of Documents item number] located?
Is there more than one location?
Where?
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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