Monday, November 30, 2015

Failure to Prepare a 30(b)(6) witness

A party may take the deposition of an individual who has knowledge relevant to the lawsuit.  In addition, a party may take the deposition of a company.  In a company deposition, known as a 30(b)(6) deposition in federal court (and sometimes referred to as a person most knowledgeable or qualified deposition in state court), a party identifies the topics that it wants the opposing party’s company witness to discuss, and then the witness testifies on behalf of the entire company and speaks for the company.
Rule 30(b)(6) provides that persons designated to represent an organization “shall testify as to matters known or reasonably available to the organization.”  This means that an organization must “produce one or more 30(b)(6) witnesses who [are] thoroughly educated about the noticed deposition topics with respect to any and all facts known to [the organization] or its counsel.”  If the persons designated by the corporation do not possess personal knowledge of the matters set forth in the deposition notice, then the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.   The corporation and its counsel have a duty to prepare a witness on behalf of the corporation.
Failing to prepare any type of witness, whether the witness is testifying as a company witness or as an individual, evinces a lack of diligence and, thus, violates the rules of professional conduct.9  Also, failure to prepare a witness can result in sanctions against the attorney and dreadful deposition testimony from the witness that can negatively affect a client’s case. 
In Int’l Ass’n of Machinists, Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 487 (D. Md. 2005) the first witness designated as the 30(b)(6) witness was, in the words of the district court,“woefully unprepared.”  He “had no knowledge at all regarding any of the subjects listed on the 30(b)(6) notice, and, in fact, had not even seen the notice until it was shown to him during the deposition.”  In addition, “he personally had undertaken no steps to prepare for the deposition and [the organization] and its counsel had not made any effort to prepare him” except for one bit of advice – they “advis[ed] him to tell the truth.”  Moreover, this witness lacked basic knowledge regarding the organization as he was only a part-time volunteer during a period of time that was irrelevant to the case.  As a result, the organization and its counsel were sanctioned in the amount of $7,947.30.18

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