By Steven P. Caley

Various commentators have addressed peculiarities and potential pitfalls of depositions of corporations or other organizations under Rule 30(b)(6) of the Federal Rules of Civil Procedure. See, e.g., Steven P. Caley, “Looking at Rule 30,” NLJ,, Sept. 11, 2000, at A14. Little attention has been devoted, however, to the interplay between the Rule 30(b)(6) deposition and other subsections of Rule 30 presumptively limiting the number of depositions to 10 per side, and the duration of each deposition to seven hours. Rule 30(a)(2)(A)(1) and (d)(1). Consistent with the other complexities of a 30(b)(6) deposition, a number of questions are raised, not all of which have obvious or definitive answers.

When a corporate deponent designates one witness on all topics of a 30(b)(6) notice, and the witness is examined only on those topics, it is obvious that only one deposition has been taken. But what if, as frequently happens, the corporation designates multiple individuals to testify on different topics? Fortunately, this issue is explicitly addressed by the Advisory Committee Note to the 1993 amendment to Rule 30 that created the presumptive limit of 10 depositions per side, and the answer is clear: “A deposition under Rule 30(b)(6) should, for purposes of [the 10 deposition] limit, be treated as a single deposition even though more than one person may be designated to testify.” Committee Note, 146 F.R.D. 401 at 662.

The situation is less clear-cut, however, when a party that has already taken a 30(b)(6) deposition, serves a second 30(b)(6) notice on the same entity. Most of the

cases involving a second 30(b)(6) notice do not address directly the question of how many depositions have been noticed for purposes of the presumptive limit on the number of depositions. Typically they have analyzed whether a second 30(b)(6) deposition would be a deposition of one “already…deposed in the case,” requiring leave of court under Rule 30(a)(2)(A)(ii). Most courts have answered this question in the affirmative. See e.g., Ameristar Jet Charter Inc. v. Signal Composites Inc., 244 F.3d 189 (1st Cir. 2001); Terry v. Unified Government of Wyandotte Co., 2011 WL 795816, at *3 (D. Kan. 2011); State Farm Mutual Automobile Insurance Co. v. New Horizon Inc., 254 F.R.D. 227 (E.D. Pa. 2008); contra, Quality Aero Technology Inc. v. Telemetrie Elektronik GMBH, 212 F.R.D. 313, 319 (E.D.N.C. 2002).

While not directly on point, the reasoning of these cases — that the second 30(b)(6) is a new deposition — lends support to the view that if a party notices and takes two 30(b)(6) depositions, two depositions have been taken for purposes of the 10 deposition limit. However, one

court that explicitly considered the issue of how many depositions were taken, held that two, separately noticed, 30(b)(6) depositions taken on the same day on different topics should count as only one deposition. Loops LLC v. Phoenix Trading Inc., 2010 WL 786030 (W.D. Wash. 2010).

Given the lack of certainty in the case law, the safer practice is to include all examination topics in one 30(b)(6) notice. Otherwise, a litigant may require court approval for a second notice, and, if leave is granted, may be held to have taken two separate depositions.

When a witness is examined as a corporate designee on certain topics and is separately noticed and examined as an individual, then the individual examination clearly would count as a separate deposition, in addition to the one 30(b)(6) deposition. However, most courts hold that a witness not noticed individually, and produced solely as a 30(b)(6) designee, may, nonetheless, be examined on matters beyond the designated topics. See e.g., King v. Pratt & Whitney, 161 F.R.D. 475 (S.D. Fla. 1995); Cabot Corp. v. Yamulla Enterprises Inc., 194 F.R.D. 499 (M.D. Pa. 2000); contra, Paparelli v. Prudential Ins. Co. of America, 108 F.R.D. 727 (D. Mass. 1985). When that occurs, how many depositions have been taken?

Unfortunately, there appears to be only one reported decision explicitly addressing this issue, and it does not provide a clear answer. In Detoy v. City and County of San Francisco, 196 F.R.D. 362 (N.D. Calif. 2000), the court held that Rule 30(b)(6) does not limit what can be asked of a corporate designee, but on the issue of how many depositions should be counted, the decision is confusing and arguably

November 22, 2011

How limitations on number and duration apply to corporate depositions

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Steven P. Caley

contradictory. On the one hand, it states that when a designee is examined on matters other than designated topics, “the general deposition rules govern,” 196 F.R.D. at 366, and the witness is “testifying as an individual.” 196 F.R.D. at 367. Thus, it recognizes that such a procedure constitutes both a 30(b)(6) deposition and an individual deposition. On the other hand, the decision states, “Nor should one witness count as two depositions for purposes of the…limit on the number of depositions to be taken by each party.” Id. Based on this, an aggressive litigant might argue that the Detoy court meant that because the witness was produced solely as corporate designee in response to a 30(b)(6) notice, the examiner took only one deposition, irrespective of the scope of the examination.

However, accepting that position would undermine and, in some cases, nullify entirely, Rule 30’s limitation on the num-ber of depositions. It would also penalize litigants who make a good faith effort to put forward the most knowledgeable wit-nesses on the noticed topics, and encour-age tactical gamesmanship. Specifically, if an examining party were able to question most of the other side’s key witnesses on all relevant matters, while using only one of its allotted depositions, the noticed cor-poration would have strong incentive to produce, instead, a single, less knowledge-able witness to testify on all topics. There may be some risk to the corporation in doing so, given that the testimony of the possibly insufficient designee will bind the corporation. However, that risk is likely to be minimal, given that most courts hold that the testimony binds the corporation only in the sense that the testimony is admissible against the corporation; not that the testimony constitutes a “judicial admission that formally and finally decides an issue.” W.R. Grace & Co. v. Viskase Corp., 1991 WL 211647, at *2 (N.D. Ill. 1991). But see Ierardi v. Lorillard Inc., 1991 WL 158911 at *3 (E.D. Pa. 1991).

Thus, whatever the Detoy court may have intended, when a 30(b)(6) designee is also questioned on matters beyond the scope of her designated topics, the deposition should be counted as an individual deposition, in addition to the 30(b)(6) deposition. This common sense approach comports with the language and

purposes of Rule 30’s limitation on the number of depositions and promotes a rational and efficient discovery process.

DePOSItIOn DURatIOn

Rule 30(d)(2) provides generally, that “[u]nless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours.” With respect to 30(b)(6) depositions, the Advisory Committee Note to the 2000 Amendment to Rule 30 states that, “[f]or purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition.” Committee Note, 192 F.R.D. 340 at 395. Thus, absent party agreement or court order to the contrary, each 30(b)(6) designee potentially may be examined for up to seven hours.

Of course , persons not i ced as individuals are frequently designated 30(b)(6) witnesses as well, which leads to the question of how long such a witness may be examined in total. Courts considering this issue have found that “the depositions of an individual who is noticed as an individual witness pursuant to Fed. R. Civ. P. 30(b)(1) and who is also produced as a corporate representative pursuant to Fed. R. Civ. P. 30(b)(6) [is] presumptively subject to independent seven-hour time limits.” Wesley v. Gates, 2009 WL 1955997, at *1 (N.D. Calif. 2009); citing Sabre v. First Dominion Capital LLC, 2001 WL 1590544, at *1-*2 (S.D.N.Y. 2001).

This does not mean, however, that an inquiring party has “carte blanche” to depose a witness for seven hours as an individual and seven hours as a 30(b)(6) witness. Rather, “the Court is called upon in each case to make a fact intensive inquiry as to whether a particular witness should or should not be required to submit to questioning which exceeds seven hours in length.” Forte Capital Partners LLC v. Harris Cramer LLP, 2008 WL 4924724, at *3 (N.D. Calif. 2008).

The possibility that a corporate execu-tive could be deposed for 14 hours, or more (if so ordered by the court), causes many corporate litigants to seek to limit examination time. Some parties have sought to do so by claiming to “adopt” as the corporation’s 30(b)(6) testimony, the corporate designee’s prior deposition tes-

timony as an individual. Sabre suggested that this may be a viable option, at least in the case of a closely held corporation. Most courts, however, have rejected this approach, and held that the fact that a company’s employee was deposed under Rule 30(b)(1) does not insulate the com-pany from producing the same, or another, individual as a corporate representative at a (30)(b)(6) deposition. See Munich Reins. America Inc. v. America National Ins. Co., 2011 WL 1466369, at *26 (D.N.J. 2011); New Jersey v. Sprint Corp., 2010 WL 610671, at n.13 (D. Kan. 2010); Provide Commerce Inc. v. Preferred Commerce Inc., 2008 WL 360588 (S.D. Fla. 2008).

Steven P. Caley is a partner in the litigation department of New York’s Kelley Drye & Warren. His practice includes complex commercial, false advertising and products liability litigation. Associate Ila Kapoor assisted in the preparation of this article.

Reprinted with permission from the November 22, 2011 edition of THE NATIONAL LAW JOURNAL © 2011 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com. #005-11-11-23

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