Rule 30(b)(6) Witnesses at Trial

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THE FEDERAL LAWYER

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September 2013

Most federal court litigators are familiar with Rule 30(b)(6)

as a discovery tool. But what do you know about the use

of Rule 30(b)(6) witnesses at trial? You may find there is a

great deal about the topic that you don’t know or haven’t

even considered.

by stePhen J. o’neil

he use of Fed. R. Civ. P. 30(b)(6) to

take depositions of corporate repre-

sentatives has proliferated in recent

years. The rule’s popularity can be attributed

to the efficiency of the device in enabling a

party through a single notice to elicit a broad

range of deposition testimony from an adverse

corporate party or a corporate third party.

The

designated corporate representative may be

questioned not only about facts known to the

corporation, but also about corporate beliefs,

opinions, and, subject to the constraints of

the attorney–client privilege and the attorney

work product doctrine, even about legal posi-

tions, and the testimony can, depending on

the circuit, bind the corporation.

Between the language of the rule and the growing body of

case law interpreting it, a fairly well-defined set of practice

guidelines exist for Rule 30(b)(6) in the discovery context, but

few decisions address the use of Rule 30(b)(6) testimony at

trial. In the analysis that emerges from those decisions, obvious

tension can be observed between the Federal Rules of Evidence

requiring a foundation in the personal knowledge of the witness

and the absence of any such requirement for deposition

testimony taken pursuant to Rule 30(b)(6).

When a party receives a notice of deposition issued pursuant

to Rule 30(b)(6), the corporation has a duty to designate one

or more than one deponent, if necessary, to provide information

“known or reasonably available” about topics described “with

reasonable particularity” in the deposition notice or subpoena.

If the witness does not have personal knowledge, the corporation

must educate the witness so that he or she can testify fully and

knowledgeably about the topics identified.

The rule makes

no requirement for the witness to have personal knowledge of

the matters to which he or she testifies, and the witness may

use documents, present or past employees, or other sources

of information to prepare.

Because the corporation is the

deponent under the rule, the witness presents the knowledge,

opinions, or positions of the corporation, not of the witness

himself or herself.

5,6

In view of these principles, deposition testimony taken

under Rule 30(b)(6) would normally be inadmissible at trial if

not based on matters within the witness’s personal knowledge.

However, the only guidance in the Federal Rules of Civil

Procedure regarding admissibility of Rule 30(b)(6) testimony at

trial appears in Rule 32(a)(3), which provides that, if the other

conditions of Rule 32(a)(1) are met, Rule 30(b)(6) deposition

testimony of a corporate party may be introduced at trial by

the adverse party for any purpose. Neither the rules nor the

advisory committee comments make any reference to the use

of live Rule 30(b)(6) testimony at trial. Nevertheless, the one

court of appeals decision to squarely consider the issue has held

this is permitted, and even encouraged.

The Brazos decision,

and a number of district court decisions allowing live Rule 30(b)

(6) testimony at trial, raise some difficult questions about the

rule and its role at trial, including the following:

• Can a party’s Rule 30(b)(6) witness be compelled by the

adverse party to testify live in his representative capacity

at trial?

• If called live at trial by an adverse party, can a party Rule

30(b)(6) witness testify just as if it were a Rule 30(b)(6)

deposition and rely on information about which the witness

has no personal knowledge or which may be hearsay?

• Does examination by the adverse party live at trial open

September 2013

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THE FEDERAL LAWYER

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Rule 30(b)(6)

Witnesses at Trial

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THE FEDERAL LAWYER

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September 2013

the door for the witness to explain the company’s position

using information that became available to the witness after the

deposition?

• Is the Rule 30(b)(6) deposition testimony of a third party

admissible at trial even if the testimony was based on hearsay

or information outside the personal knowledge of the deponent?

• If a corporate Rule 30(b)(6) designee is unavailable to testify,

can the corporate party affirmatively introduce the deposition

testimony of its own designee at trial?

• How should the testimony of a “dual witness,” one appearing in

both an individual and a representative capacity, be handled by

the parties and the court at trial?

This article will address each of these questions below.

1. Can a party’s Rule 30(b)(6) designee be compelled by the

adverse party to testify live in his representative capacity at

trial?

“Although there is no rule requiring that the corporate designee

testify ‘vicariously’ at trial, as distinguished from at the Rule 30(b)

(6) deposition, if the corporation makes the witness available at

trial, he should not be able to refuse to testify to matters as to

which he testified at the deposition on grounds that he had only

corporate knowledge of the issues, not personal knowledge.”

With

this statement, the Fifth Circuit established the somewhat arbitrary

rule that a previously designated Rule 30(b)(6) witness can be

questioned in his representative capacity at trial if he is present and

testifying anyway in his personal capacity.

The Brazos court did not consider the slightly different

question of whether a Rule 30(b)(6) witness who does not appear

voluntarily, but is subpoenaed individually, can refuse to testify in

his representative capacity. That question was raised more recently

in Sara Lee Corp. v. Kraft Foods, Inc.,

(ruling on a separate

issue discussed later herein).

However, the case was resolved

during trial, before any published decision was handed down, and

before the witness in question took the stand. Kraft argued that,

under Brazos, a witness appearing pursuant to subpoena should be

open to questions about his corporate knowledge and positions just

like a Rule 30(b)(6) witness that appears and testifies voluntarily.

Otherwise, the right of a party to question an adverse Rule 30(b)

(6) witness at trial would turn solely on whether he happened to

be called by the party controlling him. In response, Sara Lee argued

that, in that instance, it no longer controlled the former Rule 30(b)

(6) witness and it filed affidavits indicating that the witness had left

the company and did not have time to prepare to speak on behalf of

the company and that the company did not authorize him to testify

on its behalf.

These are powerful competing considerations. On one hand, why

should a corporate party be able to blunt the effect of potentially

damaging live Rule 30(b)(6) testimony by disowning its own

designee? On the other, how can a corporate party be bound to

positions taken by a witness who has no interest in the proceedings?

Assuming that a court were inclined to allow live testimony from a

Rule 30(b)(6) witness who was not appearing voluntarily (a modest

extension of Brazos), it might resolve this issue by requiring that the

party seeking to abandon its former designee make a showing that

the witness has left the corporation under circumstances resulting

in a true lack of control such that it would be unfair to allow him

to speak for the company. Requiring such a showing would at least

reduce the risk that the corporate party was abandoning its prior

designee for strategic reasons.

Whether or not the Brazos holding extends to witnesses

appearing at trial pursuant to subpoena, the ruling in Brazos that

a Rule 30(b)(6) witness can be questioned in his representative

capacity at trial has important practical implications. The law is

settled that a 30(b)(6) witness need not be the most knowledgeable

on and, in fact, need not have any personal knowledge of the

subject matter. Based on that proposition, the court in QBE

Ins. commented that a corporation might choose to designate a

less-knowledgeable witness for any number of reasons, including

that the more-knowledgeable witness “might be comparatively

inarticulate, he might have a criminal conviction, she might be

out of town for an extended trip, he might not be photogenic (for

a videotaped deposition), she might prefer to avoid the entire

process. …”

These kinds of considerations, important at the time

that a Rule 30(b)(6) witness is selected for deposition, take on even

greater significance if the witness might be called live at trial. In fact,

in light of Brazos, a Rule 30(b)(6) respondent should give serious

consideration to designating a witness who will not be appearing

voluntarily as a fact witness at trial.

2. If called live at trial by an adverse party, can a party Rule

30(b)(6) witness testify just as if it were a Rule 30(b)(6)

deposition and rely on information about which the witness

has no personal knowledge or which may be hearsay?

The least potential for conflict between the Federal Rules of

Evidence and Rule 30(b)(6) arises when a party calls the adverse

party’s Rule 30(b)(6) witness live at trial. In that situation, any

statement made by the witness, even if predicated on hearsay or

information outside the witness’s personal knowledge, should be

admissible as an admission by a party opponent. Fed. R. Evid.

801(d)(2) provides that a statement is not hearsay if it is offered

against an opposing party and it “was made by the party in an

individual or representative capacity”

or “was made by a person

whom the party authorized to make a statement on the subject.”

Either of these requirements should be easily satisfied in the case

of a Rule 30(b)(6) designee, even if the witness had no personal

knowledge of the matters, because it was learned as part of his

Rule 30(b)(6) “education.” Most circuits have found that personal

knowledge is not required for an admission under Rule 801(d)(2).

As noted above, the standard Rule 801(d)(2) analysis requires

that the statement be “offered against an opposing party” before

it will be considered an admission by a party opponent, and

courts have generally held that a party’s statements may not be

admitted under this rule against a party on the same side of the

litigation as the declarant party.

Interestingly, in Brazos, the

plaintiff attempted to question the Rule 30(b)(6) representative

of one defendant about matters relating to a co-defendant. The

district court ruled that the witness could be asked to testify in

his representative capacity about the defendant that designated

him but not about the co-defendant. On appeal, the Fifth Circuit

found that testimony about the co-defendant was not completely

off limits given the broad scope of “corporate knowledge” under

Rule 30(b)(6); however, it held that no testimony could be offered

about whether the co-defendant made any misrepresentations

about its equipment to the defendant to the extent such testimony

September 2013

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was hearsay. While the court did not refer to the Rule 801(d)(2)

requirement that an admission be offered “against an opposing

party,” such testimony by a defendant’s Rule 30(b)(6) witness,

offered to show that a co-defendant had made misrepresentations

about its equipment and would not meet the requirement or qualify

as an admission of a party opponent.

3. Does examination by the adverse party live at trial open

the door for the witness to explain the company’s position

using information that became available to the witness after

the deposition?

If the adverse party intends to probe Rule 30(b)(6) matters live

at trial, the corporate party can be expected to educate its designee

beforehand about the corporation’s positions, just as it did prior to

the deposition. By the time of trial, months or even years may have

passed since the Rule 30(b)(6) deposition, and the record is likely

to have become far more developed. The corporate party may also

have a better sense of its positions after completion of discovery,

summary judgment briefing, and trial preparation. In the summary

judgment setting, most courts have allowed the corporate party to

modify or supplement positions previously articulated in the Rule

30(b)(6) deposition.

At trial, however, allowing a Rule 30(b)(6)

witness to update his corporate knowledge through documents,

depositions, and interviews provided to him after the deposition

could allow much otherwise inadmissible hearsay evidence to come

in the back door. There would be no clear obligation under the

rules to bring the updated Rule 30(b)(6) position of the corporate

deponent to the attention of the adverse party because, unlike other

forms of discovery responses and disclosures, a party has no duty to

supplement deposition testimony that may have been incomplete or

incorrect when given.

One recent district court case presented such a conflict. In

Cooley v. Lincoln Electric Co., the defendant’s Rule 30(b)(6)

witness was called at trial and confronted with the deposition

testimony of the defendant’s CEO in which the CEO admitted that

in the 1940s the company knew that manganese in welding fumes

could cause neurological injury.

When asked at trial whether the

company’s position differed from the deposition testimony of the

CEO, the Rule 30(b)(6) witness sought to explain the company’s

position using a recent conversation he had with the CEO.

The

defendant argued that a Rule 30(b)(6) witness is entitled to rely on

this kind of information for purposes of a Rule 30(b)(6) deposition

and should be permitted to do so at trial.

The court found

the recent conversation to be hearsay and barred the proposed

explanatory testimony.

The Cooley court’s determination that the conversation was

hearsay is correct, but reliance on hearsay is permitted under

Rule 30(b)(6). The problem was that the hearsay at hand was of

questionable reliability. Thus, the result in Cooley might be different

if the Rule 30(b)(6) witness had learned of additional information

in the discovery record as opposed to the undiscoverable water-

cooler conversation with the CEO, or if the Rule 30(b)(6) witness

had learned of new information at trial that was not in the

discovery record but was verifiable and reliable. For example,

if the defendant’s Rule 30(b)(6) designee in Cooley had given

damaging deposition testimony based on his deposition preparation

at the time, admitting that the corporation knew of the dangers of

manganese in the 1940s, would he be able to explain that a more

thorough review of the available evidence after his deposition

revealed some testing that calls that conclusion into question? This

would seem to present a much stronger case than in Cooley for

permitting the corporate spokesperson to rely on new information

rather than force the witness to simply reiterate his more damaging

but incomplete deposition testimony. Because any unfairness to the

party calling the Rule 30(b)(6) witness at trial can be avoided by

reading the deposition testimony, courts should allow a Rule 30(b)

(6) witness to update his statement of the company’s positions with

information that can be shown to be reliable. Otherwise, the party

calling the witness live at trial would be free to cross-examine, armed

with information, documents, or deposition testimony learned after

the Rule 30(b)(6) deposition with no opportunity for the deponent

(now a live witness at trial) to respond in kind.

4. Is the Rule 30(b)(6) deposition testimony of a third party

admissible at trial even if the testimony was based on hearsay

or information outside the personal knowledge of the depo-

nent?

In the case of third-party Rule 30(b)(6) deposition testimony,

real tension exists between the Federal Rules of Evidence and Rule

30(b)(6).

Like any 30(b)(6) witness, the third-party designee

may have relied upon the company’s documents or interviews with

present or past employees in forming and articulating the company’s

positions. Unlike the party Rule 30(b)(6) witness, however, the

testimony of the third-party designee would not be admissible under

Rule 32(a)(3) or as an admission of a party opponent under Fed.

R. Evid. 801(d)(2). In addition, a third-party has less incentive to

undergo a thorough predeposition education and typically no stake

in the outcome of the case. As a result, the risk is higher that the

Rule 30(b)(6) deposition testimony will be incomplete, erroneous,

or imprecise, with little chance for the parties to challenge or cross-

examine.

The court in Sara Lee considered this issue and attempted to

balance the benefits of Rule 30(b)(6) deposition testimony of third

parties with the risk that admitting third-party testimony that was

not based on personal knowledge, or that constituted inadmissible

hearsay, could effectively deny the party opposing admission of the

evidence the right of meaningful cross-examination.

Under Fed.

R. Civ. P. 32(a), deposition testimony is admissible if it satisfies

all three of the conditions of Rule 32(a)(1). The court found that

Although there is no rule requiring that the

corporate designee testify “vicariously” at

trial, if the corporation makes the witness

available at trial, he should not be able to

refuse to testify to matters as to which he

testiﬁed at the deposition on the grounds

that he had only corporate knowledge of

the issues, not personal knowledge.

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THE FEDERAL LAWYER

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September 2013

the deposition testimony of a third-party Rule 30(b)(6) designee

is admissible if the individual witness (not the corporation) is

more than 100 miles from the courthouse under Rule 32(a)(4)(B).

However, even if the witness were “unavailable” under the rule,

the testimony must still be otherwise admissible under Rule 32(a)

(1)(B). The court found that admissibility for purposes of Rule

32(a)(1)(B) did not require personal knowledge, just “corporate

knowledge” as that concept is embodied in Rule 30(b)(6).

The

next question, as the court saw it, was “how far the concept of

‘corporate knowledge’ can be stretched.”

The court found that

third-party Rule 30(b)(6) testimony regarding corporate policy

and procedure would be admissible “corporate knowledge” but

that specific events better recounted by witnesses with personal

knowledge would require such a witness.

The task of separating

true “corporate knowledge” testimony from testimony that required

personal knowledge would presumably be left to the trial court after

a thorough review of the proposed deposition testimony.

The Sara Lee ruling leaves much to be determined on a case-

by-case basis. However, there is one practical way to avoid the

problem that arose at trial in the Sara Lee case. Once a third-party

designates a Rule 30(b)(6) witness to testify in deposition, the

party taking the deposition or the opposing party (as Kraft did)

should serve a subpoena on that witness in his individual capacity.

In that way, any testimony given by the witness that is based on

his own personal knowledge will have an independent basis for

admission. While taking a “dual” deposition of a witness in both his

representative and individual capacities is preferable to running the

risk that testimony will be barred, it does raise unique problems of

deposition management, like the need for the questioner to advise

the witness when a question or line of questioning is directed at him

in his individual or representative capacity.

5. If a corporate Rule 30(b)(6) designee is unavailable to

testify, can the corporate party affirmatively introduce the

deposition testimony of its own designee at trial?

Now assume that the corporate representative gave a sparkling

presentation of her employer’s position in her Rule 30(b)(6)

deposition, but she has since left the company and cannot be

compelled to testify at trial. Can the designating corporate party

affirmatively introduce its own Rule 30(b)(6) witness’s deposition

testimony at trial? Because Rule 32(a)(3) provides only for admission

of Rule 30(b)(6) deposition testimony when introduced by the

adverse party (and Rule 801 (d)(2) applies only to admissions of a

party opponent), the argument that a designating corporate party

should be able to introduce the deposition testimony of its own Rule

30(b)(6) witness is a weak one. Even if a witness is unavailable

under Rule 32(a)(4), the proposed deposition testimony must still

be admissible as if the witness were testifying live under Rule 32(a)

(1)(B). Unless the proposed testimony were based on personal

knowledge, it should not be admissible.

6. How should the testimony of a “dual witness,” one appear-

ing in both an individual and a representative capacity, be

handled by the parties and the court at trial?

Consider the witness who has testified extensively as a

Rule 30(b)(6) witness in deposition and is now called as a fact

witness by her employer at trial. She has considerable personal

knowledge of relevant events and so testifies at length on direct

examination in her individual capacity. On cross-examination,

she is impeached or confronted with deposition testimony she

gave in her representative capacity. On redirect, she is asked

to explain or clarify the testimony she gave as a Rule 30(b)(6)

witness in deposition that was then used against her. In a jury trial,

the court should explain to the jury what it means to be a Rule

30(b)(6) witness and then attempt to explain to the jury when the

witness takes off one hat and dons the other. But this will be nearly

impossible for the jury to follow and likely will result in claims of

error by the losing party.

In this situation, a vigilant court could decide not to allow “dual

witnesses,” or could at least prohibit questions that would result

in individual and representative testimony being elicited from the

witness in the same sitting. If the direct examination is properly

limited to the witness’ individual testimony, the cross-examination

should be so limited as well. If the adverse party wants to call the

same witness to testify about her prior Rule 30(b)(6) deposition

testimony, that party should call the witness during its case-in-chief,

and the cross-examination should be limited to the representative

aspects of her testimony. This would minimize, but fall far short of

eliminating, the potential jury confusion that would result from trial

testimony of a “dual witness.” Alternatively, a court could admit the

Rule 30(b)(6) deposition testimony of the witness and bar any live

testimony by a witness in her representative capacity.

Conclusion

It may be premature to assume that Brazos and the district court

cases allowing live Rule 30(b)(6) testimony at trial will gain general

acceptance. But if they do, courts may find that a number of difficult

issues await them as the use of Rule 30(b)(6) evidence at trial

becomes more common. Precluding parties from calling adverse

Rule 30(b)(6) witnesses to testify live, or at least live in their

representative capacity, would avoid these problems and would

result in little loss of relevant evidence because the deposition

testimony would always be available to be used. The express

authorization in Rule 32(a)(3) that Rule 30(b)(6) deposition

testimony may be offered by the adverse party for any purpose

may be the only use at trial that the drafters intended. The Brazos

In a jury trial, the court should explain

to the jury what it means to be a

Rule 30(b)(6) witness and then attempt to

explain to the jury when the witness takes

off one hat and dons the other. But this

will be nearly impossibly for the jury to

follow and likely will result in claims

of error by the losing party.

September 2013

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THE FEDERAL LAWYER

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court relied on the general reluctance of district courts to allow

the reading of deposition testimony when the witness is available

to testify live, but the complications associated with allowing live

testimony may outweigh the benefit. 

Stephen J. O’Neil is a senior litigation

partner and experienced trial lawyer

at K&L Gates LLP. He is one of two

practice group coordinators for the firm’s

Commerical Disputes Practice Group. He

practices out of the firm’s Chicago office

and is a member of the Chicago Chapter

of the FBA. He can be reached at stephen.

[email protected]

Endnotes

In addition to corporate parties, the rule also applies to partner-

ships, associations, government agencies, and other entities. For

simplicity, references in this article are to corporations alone.

Fed. R. Civ. P. 30(b)(6).

Great Am. Ins. of N.Y. v. Vegas Constr. Co., 251 F.R.D. 534,

543 (D. Nev. 2008).

Id. at 538; Harris v. New Jersey, 259 F.R.D. 89, 92 (D.N.J.

2007).

Brazos River Author. v. GE Ionics, Inc., 469 F.3d 416, 433

(5th Cir. 2006).

An excellent and more complete compendium of the guiding

principles of Rule 30(b)(6) depositions from the case law appears in

the recent case of QBE Ins., Corp. v. Jorda Enter., Inc., 277 F.R.D.

676, 687-92 (S.D. Fla. 2012).

See Brazos, 469 F.3d at 434.

Brazos, 469 F.3d at 434.

This does not mean that a corporate party can be compelled to

produce a designee to testify for the first time at trial in response to

a Rule 30(b)(6) notice. A notice may only be issued for a deposition,

not for the appearance of a corporate representative at trial. Hill

v. Nat’l R.R. Passenger Corp., 88-5277, 1989 WL 87621 (E.D. La.

July 28, 1989).

276 F.R.D. 500 (N.D. Ill. 2011)

The author was lead counsel for Kraft Foods Global, Inc., in the

case of Sara Lee Corp v. Kraft Foods, Inc., 276 F.R.D. 500 (N.D.

Ill. 2011).

QBE Ins., 277 F.R.D. at 688.

Fed. R. Evid. 801 (d)(2)(A).

Fed. R. Evid. 802(d)(2)(C).

See U.S. v. Southbend Corp., 760 F.2d 1366, 1376 n.4 (2d

Cir. 1985), cert. denied, 474 U.S. 825 (1985) noting that the Third,

Seventh, and Eighth Circuits have not required personal knowledge

for a statement to qualify as an admissions by a party opponent. See

also Brookover v. Mary Hitchcock Memorial Hosp., 893 F.2d 411,

418 (1st Cir. 1990).

See Stalbowsky v. Belew, 205 F.3d 890, 894 (6th Cir. 2000).

See Cuff v. Trans States Holdings, Inc., 816 F. Supp. 2d 556,

559 (N.D. Ill. 2011) and cases cited therein.

See Fed. R. Civ. P. 26(e).

693 F. Supp. 2d. 767, 790 (N.D. Ohio 2010).

Id. at 790–92.

Id.

Rule 30(b)(6) has been held applicable to third parties as

it permits a party to name any corporation as a deponent and to

so through use of either a “notice or subpoena.” In fact, using a

Rule 30(b)(6) subpoena is particularly valuable in the third-party

context where the party serving the subpoena is less likely to know

which employees of the third party have relevant knowledge.

276 F.R.D. at 503.

Id.

individual litigation. As the Court explained, “[t]ruth to tell, our

decision in AT&T Mobility all but resolves this case,” given that

“[w]e specifically rejected the argument that class arbitration was

necessary to prosecute claims ‘that might otherwise slip through

the legal system.’”

Perhaps now that the Court has said it twice,

other legal actors will begin to get the message.

Endnotes

131 S. Ct. 1740 (2011).

9 U.S.C. § 2.

201 Cal. App. 4th 74 (Cal. Ct. App. 2011).

29 U.S.C. § 157.

357 NLRB No. 184 (2012).

2012 WL 124590 (S.D.N.Y. 2012).

D.R. Horton may also be invalidated because the board issued

it at a time that one of its members, Craig Becker, was serving

pursuant to an intrasession “recess” appointment that was invalid

under the D.C. Circuit’s decision in Noel Canning v. NLRB, 705

F.3d 490 (D.C. Cir. 2013).

12 CFR § 1026.36.

Case No. 12-133 (June 20, 2013).

Id., slip op. at 8-9.

ARBITRATION continued from page 63