Strategies for Responding to FRCP 30(b)(1)

Rule 30(a)(1) provides that, subject to certain exceptions, “[a] party may, by oral questions, depose any person, including a party, without leave of court.” Rule 30(b)(1), the notice provision, provides only that a “party who wants to depose a person by oral questions must give reasonable written notice to every other party.” Where the party to be deposed is a corporation or other institutional party, both Rules 30(a)(1) and 30(b)(1) are silent on whether the discovering party can direct which institutional representative appears for deposition.

Rule 30(b)(6), which was added in the 1970 amendments to the Federal Rules, is the sole provision in the discovery rules that permits a party to take, by notice, the deposition of an institutional party. That rule allows a party to “name as the deponent a ' corporation, a partnership, an association, a governmental agency, or other entity” and “describe with reasonable particularity the matters for examination.” Following receipt of such a notice, Rule 30(b)(6) requires “[t]he named organization” to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.”'

Until 1970, the only way a litigant could examine an institutional party was to notice the depositions of authoritative individuals (i.e., officers, directors, or managing agents) by serving the institution pursuant to Rule 30(b)(1). This practice often led to wasteful depositions of individuals lacking relevant knowledge. It also led to litigation about who constitutes a “managing agent.” See 7-30 Moore's Federal Practice – Civil ' 30.03[2] (2009).

When Rule 30(b)(6) was added, it provided a vehicle through which a party can obtain the actual knowledge of an institutional party on matters relevant to the litigation. Although the Advisory Committee made clear that Rule 30(b)(6) “supplements” and does not replace the earlier method by which a party may depose an organization, Rule 30(b)(6) should be viewed as the preferred method because it seeks an organization's relevant knowledge. Indeed, Rule 30(b)(6) was designed to “assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge.” See Advisory Committee Notes for the 1970 Amendments.

This brief history reveals the intent of Rule 30 with respect to institutional parties: to empower litigants to notice, depose, and obtain relevant information from the institutional party itself. Noticing the deposition of an officer, director, or managing agent lacking substantive knowledge is far less efficient than serving a Rule 30(b)(6) notice, and gets a party no closer to reaching this goal.

Leaving No Stone Unturned

Despite the text of Rule 30(b)(1), courts have generally interpreted it to allow litigants to notice for deposition any officer, director, or managing agent of an institutional party. The select few courts that have examined the text and intent of Rule 30(b)(1), however, have not arrived at the same conclusion. Magistrate Judge Ronald Boyce engaged in a robust analysis of the rule in Stone v. Morton Int'l, Inc., 170 F.R.D. 498, 500 (D. Utah 1997). After reviewing the text of Rule 30 and associated case law, the court concluded that the “Rules of Civil Procedure do not provide direct and concrete support for the obligation of a corporation to produce a director, officer or managing agent pursuant to notice under Rule 30(b)(1),” and, accordingly, denied a motion to compel the production of a corporate officer for deposition who was located overseas as demanded in a deposition notice. Id. at 503-04.

Magistrate Judge Boyce recognized a key fact lost on most courts: “Nothing in Rule 30(b)(1) obligates a corporation to produce an officer, not a party to the litigation, at a deposition.” 170 F.R.D. at 500. Indeed, although Rule 30(b)(1) “allows a party to notice for deposition on oral examination 'any (sic) person,'” “[n]othing in Rule 30(b)(1) refers to a corporation or a director managing agent, or officer.” Id. Rule 30(b)(1) “does not expressly obligate a corporation to produce a corporate director, officer or managing agent in the litigation forum for deposition.” Id. at 501. Given the text of the rule and its intent, why should a non-party officer of a corporation be subject to deposition by notice to the corporation without any showing that the officer possesses any relevant knowledge at all?

The Stone court held that imposing an obligation that every organization automatically produce any of its officers, directors, or managing agents pursuant to a deposition notice would be problematic for at least three reasons. 170 F.R.D. at 501. First, “the forum may be remote to the residence and place of business of the corporate official, as in this case.” Id. (the noticed officer in Stone was vice president of the defendant's European division in Germany). Second, “the corporate official may not be a particularly knowledgeable person about matters at issue in the litigation.” Id. Third, “[a]n automatic obligation to produce a corporate officer for deposition pursuant to notice under Rule 30(b)(1) F.R.C.P. is susceptible to abuse.” Id.

Tactical Considerations

The three concerns listed by the Stone court provide a roadmap to in-house counsel for resisting deposition notices for their officers or directors via negotiation with opposing counsel or, failing that, moving for a protective order under the balancing test standard of Rule 26. See, e.g., Flanagan v. Wyndham Int'l, 231 F.R.D. 98, 102 (D.D.C. 2005)
(“[C]ourts generally employ a balancing test, weighing the burdensomeness to the moving party against the deponent's need for, and the relevance of, the information being sought.”).

Though the standard for obtaining relevant discovery from a party is low ' the noticing party need only show, pursuant to Rule 26(b)(1), that the deposition would lead to the discovery of admissible evidence ' convincing the court that the noticed officer or director lacks relevant knowledge and the deposition would therefore be a waste of time and resources remains the best route to obtaining a protective order precluding the deposition in its entirety. In Stone, even though the noticed officer was the plaintiff's direct supervisor, the court held that there was “at best a slim indication of [the officer's] participation or knowledge” of the “circumstances leading to the elimination of [the plaintiff's] position and his discharge.” 170 F.R.D. at 504. This led Magistrate Judge Boyce to preclude the deposition of the noticed officer until after a Rule 30(b)(6) deposition and after a showing by the plaintiff that the officer “may still provide relevant information.” Id.

If the noticed officer or director works for a foreign subsidiary or otherwise resides far from the litigation forum, then the organization has an additional argument to bolster the relevance point and emphasize the unfair burden and expense placed on it to produce the person for deposition. While the general rule is that the deposition of a corporate officer should be taken at the corporation's principal place of business or at the deponent's residence or place of business, see Salter v. The Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979), the expense of sending attorneys to depose and defend a deposition can be significant. Foreign organizational litigants have the best argument in this regard, given that the United States Supreme Court has held that American courts “should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position.” Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the Southern Dist. of Iowa, 482 U.S. 522, 546 (1987).

Finally, an institutional party must put a Rule 30(b)(1) notice in context with other discovery sought by the opposing party in the case. For example, if the organization's senior officers or directors are noticed at the outset of discovery without the noticing party first seeking Rule 30(b)(6) testimony, the organization should argue that the party's requests are premature and that less burdensome and more efficient discovery methods should be exhausted first. The Stone court explained that an institutional party may seek a protective order under Rule 26(c) to preclude a deposition of a corporate officer and, “[i]n determining what relief to allow, the court can consider whether the party seeking the deposition has made an effort to obtain information under Rule 30(b)(6).” Stone, 170 F.R.D. at 504. If the opposing party has issued a flurry of deposition notices seeking testimony from numerous officers and directors without any threshold showing that they have substantive knowledge of the matters at issue in the lawsuit, the organization should argue that the party is inefficiently fishing for information, as presaged by the 1970 Advisory Committee's notes, and should not be permitted to do so.

Admittedly, all of these arguments face an uphill climb if an organization seeks to wholly preclude the deposition of an officer or director. However, the arguments enable an organizational party potentially to control the discovery process and, for example, force an opposing party to exhaust less burdensome discovery methods and demonstrate need before being permitted to depose hand-picked officers, directors, or managing agents.

Conventional Wisdom

As Stone explained, it is “court practice and interpretation” that have created the concept that an institutional party must produce its officers, directors, and managing agents for deposition pursuant to deposition notice under Rule 30(b)(1). Stone, 170 F.R.D. at 502. Yet decision after decision appears to allow litigants to use Rule 30(b)(1) in precisely this manner.

The key to weakening this superficially appealing argument lies in the limits of the legal rulings and the specific facts and circumstances addressed in them. Most cases end up citing to the same handful of decisions (or decisions derived therefrom): GTE Products Corp. v. Gee, 115 F.R.D. 67 (D. Mass. 1987), United States v. Afram Lines, (USA), Ltd., 159 F.R.D. 408 (S.D.N.Y. 1994), and Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166 (S.D.N.Y. 1985). None of these courts, however, analyzed whether, under the actual text of Rule 30(b)(1), an organization can be compelled to produce a named officer, director or managing agent based on notice alone. For example, the Sugarhill decision did not cite Rule 30(b)(1) at all, relied on case law decided before the 1970 Rule amendments, and ultimately allowed the corporation to produce someone with knowledge other than the named deponent. See Stone, 170 F.R.D. at 503 (analyzing Sugarhill).

In the GTE decision, the plaintiff served notice on a corporation to take the deposition of corporate employees who were not officers, directors, or managing agents, and the court noted only in dicta that Rule 30(b)(1) has been interpreted to allow parties to notice the depositions of such individuals. 115 F.R.D. at 68; see also Afram Lines, (USA), Ltd., 159 F.R.D. at 413 (deciding whether noticed individuals were “managing agents” and not focusing on the issue of the obligation to produce).

By urging a court to look beyond “court practice and interpretation” and to the text and intent of the rules, organizations can buck conventional wisdom and limit, or in some cases even preclude, depositions of named officers, directors, or managing agents. See, e.g., Estate of Esther Klieman v. The Palestinian Authority, CA No. 04-1173 (PLF/JMF), 2012 U.S. Dist. LEXIS 78287, at *12-15 (D.D.C. June 6, 2012).

Final Analysis

Upon receiving a notice of deposition for an officer, director, or managing agent pursuant to Rule 30(b)(1), an institutional party need not reflexively agree to produce the named individual. Instead, counsel should consider whether the individual possesses relevant information, whether his or her location or position make the deposition burdensome and expensive, and whether the notice is part of a classic fishing expedition and not part of an orderly discovery plan. Using these factors to tilt the equities in their favor, in-house and outside counsel have an opportunity to buck conventional wisdom and better protect the organization during discovery.

John C. Eustice is counsel at the law firm Miller & Chevalier Chartered in Washington, DC. He can be reached at 202-626-1492 ormailto:[email protected].

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Your company is engaged in civil discovery and is served with a Rule 30(b)(1) notice identifying a specific corporate officer or director to be produced for deposition. The designee is busy, located overseas, knows little about the issues in the lawsuit, does not want to sit for a deposition, or some combination of the above. What are your options? Most in-house counsel know to argue that a high-level executive, such as the CEO, is an “apex” witness who should not be deposed until the noticing party has exhausted alternative discovery means. Another argument counsel may not know, however, involves using the text and intent of Rule 30(b)(1) to curtail these depositions.

Although most courts have interpreted Rule 30(b)(1) to allow such depositions, one particular well-reasoned opinion examining the rule provides a blueprint for counsel to resist convention and effect a better outcome for their companies. This uphill battle is often worth fighting, as it empowers institutional parties to preclude or at least place limits on an opposing party's ability to demand depositions of named officers, directors, and managing agents.

Federal Rule of Civil Procedure 30

Rule 30(a)(1) provides that, subject to certain exceptions, “[a] party may, by oral questions, depose any person, including a party, without leave of court.” Rule 30(b)(1), the notice provision, provides only that a “party who wants to depose a person by oral questions must give reasonable written notice to every other party.” Where the party to be deposed is a corporation or other institutional party, both Rules 30(a)(1) and 30(b)(1) are silent on whether the discovering party can direct which institutional representative appears for deposition.

Rule 30(b)(6), which was added in the 1970 amendments to the Federal Rules, is the sole provision in the discovery rules that permits a party to take, by notice, the deposition of an institutional party. That rule allows a party to “name as the deponent a ' corporation, a partnership, an association, a governmental agency, or other entity” and “describe with reasonable particularity the matters for examination.” Following receipt of such a notice, Rule 30(b)(6) requires “[t]he named organization” to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.”'

Until 1970, the only way a litigant could examine an institutional party was to notice the depositions of authoritative individuals (i.e., officers, directors, or managing agents) by serving the institution pursuant to Rule 30(b)(1). This practice often led to wasteful depositions of individuals lacking relevant knowledge. It also led to litigation about who constitutes a “managing agent.” See 7-30 Moore's Federal Practice – Civil ' 30.03[2] (2009).

When Rule 30(b)(6) was added, it provided a vehicle through which a party can obtain the actual knowledge of an institutional party on matters relevant to the litigation. Although the Advisory Committee made clear that Rule 30(b)(6) “supplements” and does not replace the earlier method by which a party may depose an organization, Rule 30(b)(6) should be viewed as the preferred method because it seeks an organization's relevant knowledge. Indeed, Rule 30(b)(6) was designed to “assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge.” See Advisory Committee Notes for the 1970 Amendments.

This brief history reveals the intent of Rule 30 with respect to institutional parties: to empower litigants to notice, depose, and obtain relevant information from the institutional party itself. Noticing the deposition of an officer, director, or managing agent lacking substantive knowledge is far less efficient than serving a Rule 30(b)(6) notice, and gets a party no closer to reaching this goal.

Leaving No Stone Unturned

Despite the text of Rule 30(b)(1), courts have generally interpreted it to allow litigants to notice for deposition any officer, director, or managing agent of an institutional party. The select few courts that have examined the text and intent of Rule 30(b)(1), however, have not arrived at the same conclusion. Magistrate Judge Ronald Boyce engaged in a robust analysis of the rule in Stone v. Morton Int'l, Inc. , 170 F.R.D. 498, 500 (D. Utah 1997). After reviewing the text of Rule 30 and associated case law, the court concluded that the “Rules of Civil Procedure do not provide direct and concrete support for the obligation of a corporation to produce a director, officer or managing agent pursuant to notice under Rule 30(b)(1),” and, accordingly, denied a motion to compel the production of a corporate officer for deposition who was located overseas as demanded in a deposition notice. Id. at 503-04.

Magistrate Judge Boyce recognized a key fact lost on most courts: “Nothing in Rule 30(b)(1) obligates a corporation to produce an officer, not a party to the litigation, at a deposition.” 170 F.R.D. at 500. Indeed, although Rule 30(b)(1) “allows a party to notice for deposition on oral examination 'any (sic) person,'” “[n]othing in Rule 30(b)(1) refers to a corporation or a director managing agent, or officer.” Id. Rule 30(b)(1) “does not expressly obligate a corporation to produce a corporate director, officer or managing agent in the litigation forum for deposition.” Id. at 501. Given the text of the rule and its intent, why should a non-party officer of a corporation be subject to deposition by notice to the corporation without any showing that the officer possesses any relevant knowledge at all?

The Stone court held that imposing an obligation that every organization automatically produce any of its officers, directors, or managing agents pursuant to a deposition notice would be problematic for at least three reasons. 170 F.R.D. at 501. First, “the forum may be remote to the residence and place of business of the corporate official, as in this case.” Id. (the noticed officer in Stone was vice president of the defendant's European division in Germany). Second, “the corporate official may not be a particularly knowledgeable person about matters at issue in the litigation.” Id. Third, “[a]n automatic obligation to produce a corporate officer for deposition pursuant to notice under Rule 30(b)(1) F.R.C.P. is susceptible to abuse.” Id.

Tactical Considerations

The three concerns listed by the Stone court provide a roadmap to in-house counsel for resisting deposition notices for their officers or directors via negotiation with opposing counsel or, failing that, moving for a protective order under the balancing test standard of Rule 26. See, e.g., Flanagan v. Wyndham Int'l , 231 F.R.D. 98, 102 (D.D.C. 2005)
(“[C]ourts generally employ a balancing test, weighing the burdensomeness to the moving party against the deponent's need for, and the relevance of, the information being sought.”).

Though the standard for obtaining relevant discovery from a party is low ' the noticing party need only show, pursuant to Rule 26(b)(1), that the deposition would lead to the discovery of admissible evidence ' convincing the court that the noticed officer or director lacks relevant knowledge and the deposition would therefore be a waste of time and resources remains the best route to obtaining a protective order precluding the deposition in its entirety. In Stone, even though the noticed officer was the plaintiff's direct supervisor, the court held that there was “at best a slim indication of [the officer's] participation or knowledge” of the “circumstances leading to the elimination of [the plaintiff's] position and his discharge.” 170 F.R.D. at 504. This led Magistrate Judge Boyce to preclude the deposition of the noticed officer until after a Rule 30(b)(6) deposition and after a showing by the plaintiff that the officer “may still provide relevant information.” Id.

If the noticed officer or director works for a foreign subsidiary or otherwise resides far from the litigation forum, then the organization has an additional argument to bolster the relevance point and emphasize the unfair burden and expense placed on it to produce the person for deposition. While the general rule is that the deposition of a corporate officer should be taken at the corporation's principal place of business or at the deponent's residence or place of business, see Salter v. The Upjohn Co. , 593 F.2d 649, 651 (5th Cir. 1979), the expense of sending attorneys to depose and defend a deposition can be significant. Foreign organizational litigants have the best argument in this regard, given that the United States Supreme Court has held that American courts “should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position.” Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the Southern Dist. of Iowa , 482 U.S. 522, 546 (1987).

Finally, an institutional party must put a Rule 30(b)(1) notice in context with other discovery sought by the opposing party in the case. For example, if the organization's senior officers or directors are noticed at the outset of discovery without the noticing party first seeking Rule 30(b)(6) testimony, the organization should argue that the party's requests are premature and that less burdensome and more efficient discovery methods should be exhausted first. The Stone court explained that an institutional party may seek a protective order under Rule 26(c) to preclude a deposition of a corporate officer and, “[i]n determining what relief to allow, the court can consider whether the party seeking the deposition has made an effort to obtain information under Rule 30(b)(6).” Stone, 170 F.R.D. at 504. If the opposing party has issued a flurry of deposition notices seeking testimony from numerous officers and directors without any threshold showing that they have substantive knowledge of the matters at issue in the lawsuit, the organization should argue that the party is inefficiently fishing for information, as presaged by the 1970 Advisory Committee's notes, and should not be permitted to do so.

Admittedly, all of these arguments face an uphill climb if an organization seeks to wholly preclude the deposition of an officer or director. However, the arguments enable an organizational party potentially to control the discovery process and, for example, force an opposing party to exhaust less burdensome discovery methods and demonstrate need before being permitted to depose hand-picked officers, directors, or managing agents.

Conventional Wisdom

As Stone explained, it is “court practice and interpretation” that have created the concept that an institutional party must produce its officers, directors, and managing agents for deposition pursuant to deposition notice under Rule 30(b)(1). Stone, 170 F.R.D. at 502. Yet decision after decision appears to allow litigants to use Rule 30(b)(1) in precisely this manner.

The key to weakening this superficially appealing argument lies in the limits of the legal rulings and the specific facts and circumstances addressed in them. Most cases end up citing to the same handful of decisions (or decisions derived therefrom): GTE Products Corp. v. Gee , 115 F.R.D. 67 (D. Mass. 1987), United States v. Afram Lines, (USA), Ltd. , 159 F.R.D. 408 (S.D.N.Y. 1994), and Sugarhill Records Ltd. v. Motown Record Corp. , 105 F.R.D. 166 (S.D.N.Y. 1985). None of these courts, however, analyzed whether, under the actual text of Rule 30(b)(1), an organization can be compelled to produce a named officer, director or managing agent based on notice alone. For example, the Sugarhill decision did not cite Rule 30(b)(1) at all, relied on case law decided before the 1970 Rule amendments, and ultimately allowed the corporation to produce someone with knowledge other than the named deponent. See Stone, 170 F.R.D. at 503 (analyzing Sugarhill).

In the GTE decision, the plaintiff served notice on a corporation to take the deposition of corporate employees who were not officers, directors, or managing agents, and the court noted only in dicta that Rule 30(b)(1) has been interpreted to allow parties to notice the depositions of such individuals. 115 F.R.D. at 68; see also Afram Lines, (USA), Ltd., 159 F.R.D. at 413 (deciding whether noticed individuals were “managing agents” and not focusing on the issue of the obligation to produce).

By urging a court to look beyond “court practice and interpretation” and to the text and intent of the rules, organizations can buck conventional wisdom and limit, or in some cases even preclude, depositions of named officers, directors, or managing agents. See, e.g., Estate of Esther Klieman v. The Palestinian Authority, CA No. 04-1173 (PLF/JMF), 2012 U.S. Dist. LEXIS 78287, at *12-15 (D.D.C. June 6, 2012).

Final Analysis

Upon receiving a notice of deposition for an officer, director, or managing agent pursuant to Rule 30(b)(1), an institutional party need not reflexively agree to produce the named individual. Instead, counsel should consider whether the individual possesses relevant information, whether his or her location or position make the deposition burdensome and expensive, and whether the notice is part of a classic fishing expedition and not part of an orderly discovery plan. Using these factors to tilt the equities in their favor, in-house and outside counsel have an opportunity to buck conventional wisdom and better protect the organization during discovery.

John C. Eustice is counsel at the law firm Miller & Chevalier Chartered in Washington, DC. He can be reached at 202-626-1492 ormailto:[email protected].

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