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Richard Cook

By: Richard A. Cook, Esq.
(Guest Blogger)

Welcome back to the land of happiness, TPSers! While we’d certainly like to spend every moment in blogger land sharing posts that are all sunshine, puppies, and rainbows, we realize there is a need for a little academia every now and again. Today, Rich Cook is going to tell you what you need to know about litigation against an organization, as it pertains to appointing a Rule 30(B)(6) representative for deposition. 30(B)(what?) – What is it and why should I care? Keep reading to find out!

Reprinted with permission from The Barrister’s Toolbox: www.the-barristers-toolbox.com.

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If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6). Rule of Procedure 30(b)(6) provides in pertinent part:

Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

The organization (not you) has the obligation of designating the person or persons needed to adequately answer the questions posed in the various designated areas you wish to ask questions. You as the deposing party have the burden of meeting the “reasonable particularity” requirement of adequately designating the subject areas of questioning.  The statements given by the person(s) designated by the organization bind the organization as an admission of a party-opponent.

This is not necessarily the case when a statement is given by a low-level employee who is not a “member of the limited liability company” or officer/director of a corporate organization  since their statements only bind the organization if they are:

1) made within the scope of their authority and

2) the person is still employed and has a relationship with the organization.

Under Rule of Evidence 801(d)(2), “non-hearsay” for the “admission of a party-opponent” is defined as follows:

(d) Statements which are not hearsay. A statement is not hearsay if –

*   *   *

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

A Rule 30(b)(6) declarant/deponent’s answers to questions during the deposition are considered a “statement by a person authorized by the party to make a statement about the subject“. The organization can only authorize such a statement if the area of questioning has been identified in the deposition notice. The trick is to make sure your designation of the areas of questioning is specific enough to cover the questions you wish to pursue during the deposition. Otherwise, the organization is free to argue that they were not authorized to make the statement and bind the organization. One caveat to this point, is that the organization likely has a duty to raise the objection at the time of the deposition if the problem could have been obviated at the time of the deposition by making a clarification in the question. Rule 32(d)(3)(A) states that “[a]n objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.”

If the opposing party designates the wrong person or fails to prepare them they risk possible discovery sanctions and ill-considered and ill-conceived answers to critical questions in the litigation. The burden is on the organization to properly prepare and name as many people needed to answer your questions. It is kind of like obtaining requests for admissions from your opponent on the fly. It can be very powerful tool you can use to box in your opponent.

We know – no sunshine, puppies or rainbows, but we bet you did learn a little something! Even the experienced paralegals may know “what” a particular thing is, but gleaning a bit more context is always helpful to those who like knowledge…and happy bosses…and pay checks…and bonuses…and vacations with sunshine…and puppies and rainbows!

We’ll see you Wednesday. Until then, guard those esquires like you’re a member of the elite secret service, only far more fashionable!

Make it a great one…