Mark Kosieradzki has been a regular at our ATLA CLEs for some time, and when I first heard him speak years ago, a light bulb went off in my head. I absolutely needed to be doing more and better 30(b)(6) depositions in my cases against a corporate defendant. What a great way to tie these businesses to an actual opinion or position instead of all the normal answers we get when we depose an individual. “I don’t know about that” or “I don’t have personal knowledge or an opinion about the facts of the case”. When I heard Mark speak, he showed me how so many familiar problems could be solved with this one little rule. Of course I took a lot of notes and starting using a lot of the techniques and ideas he spoke about at that point, but unfortunately I never read his book (Formal name, publisher, face price) until I bought it at the ATLA silent auction last year. Waiting that long was a big mistake.
There is a vast amount of knowledge and a vast number of tips in this vast book. It clocks in at a hefty 574 pages. It’s no doubt an intimidating volume to read cover to cover. When I bought it, I used it as a reference book at first, picking and choosing which chapters and topics to read about. It’s certainly useful as a reference book and I gained some good insights, but it was only when I decided to read the whole thing that I realized just how valuable it is as a strategic guide to discovery. By the end, I was amazed at how many notes I had made and how many new things I had learned. The book kicks off with a great introduction and eight basic steps to take when you are using a 30(b)(6) deposition to build your case. It’s a great setup to get you in the right mindset to start thinking about a specific case where you may need to use this rule.
One of the great things about the book is that “Kos” is so thorough and seems to think of every possible way to use the rule to your advantage. The detailed legal knowledge is very useful and practical so it keeps your attention by applying it to solve familiar problems.
Kosieradzki also provides a wealth of examples and forms to help you with specific situations in your case. As I said, the book can be used as a valuable reference book in this capacity since there are so many example lines of questioning that demonstrate how to get the testimony needed from the designated witness. These examples also help with understanding the concepts especially if you have never really used the rule in your practice before.
There were many times I found myself thinking that the next chapter would be mostly fluff or filler just to find that the next chapter was in fact more practical and useful than the one before. Because the book is so large and contains a so much great information, I will just give you some highlights that really caught my eye and got me to change some of my practices regarding the rule.
The first thing I was glad he included in the book was a thorough explanation of the purpose for Rule 30(b)(6) and the history behind it. It made me thankful that all those smart lawyers who came before me were able to come up with an effective and efficient way to “cut to the chase” and obtain the knowledge and opinions of the entity without all the runaround. Figuring out an effective way to get the information without large numbers of unnecessary depositions is one of the greatest benefits of this rule.
I also learned quite a lot from his discussion of using the same person as an individual as well as a designee, and what the difference between a 30(b)(6) and a 30(b)(1) deposition is. To tell the truth, I had never even heard of a 30(b)(1) deposition before. For all of you who are wondering, here is a quick nugget for you. “If you want to prove that a specific person within the organization did or did not know something, use 30(b)(1). However, if you want to discover particular information or establish a company’s position, then use 30(b)(6).” (Kosieradzki 106)
Besides all the information specific to 30(b)(6), there are plenty of great pieces of advice and strategy for discovery in general. One of the most helpful examples I found of this was the advice on dealing with boilerplate objections. Obviously you can’t be a plaintiff’s attorney for very long without having to deal with these.
Two particular things stood out to me on this.
- Boilerplate objections to requests for production are prohibited because the objections need to be factually specific as to the reason for the objection. They can’t just say that something is over burdensome, they have to say why.
- It is important to know that the federal rules committee has prohibited the use of the proportionality objection as a boilerplate objection. The defendant would need to have some kind of evidence or affidavit proving that the request is disproportionate to the case.
We need to start making sure that we don’t let defense attorneys get away with these copy and paste objections and use the rules to prevent discovery abuse.
Another important discovery rule that the author points out is rule 34(b)(2)(c), which requires a responding party to detail what information is being withheld on the basis of an objection. This rule will help us all with those objections that say “subject to and without waiving”, because oftentimes, this language is followed by all kinds of partial answers and the withholding of relevant documents or evidence with no real reason. It is increasingly important what information is being withheld by defense attorneys and the reason they claim it is being withheld. Because a lot of the time, it is not a valid reason.
Still another important topic is an entire chapter devoted to using the rule to understand a company’s electronic storage and information systems and how a defendant is searching for discovery and providing it to you. This becomes very important with complex litigation involving emails, servers or the storage of information and files. A 30(b)(6) can be an effective way to figure out how the systems work and establish that information gathering is not over burdensome as a defendant often claims, but sometimes can be done with a few simple keystrokes and searches.
I could go on for pages about the wonderful strategy and advice you will gain from this book but instead I want to pick one more thing that I think every Plaintiff’s attorney has experienced at some point if you have taken a 30(b)(6) deposition. It is the objection that the questions asked are beyond the scope of the topic. While this may be a valid objection to some degree, “Kos” points out that it should never prevent the witness from answering the question. This is because the scope of the topics given is only what the witness is required to prepare for. If the witness answers a question outside the scope of the topics then the answer is not binding on the entity, it simply becomes the individual’s testimony based on their own independent knowledge. Therefore, a defense attorney’s objection to beyond the scope should never prevent the witness from answering the question: there are only three reasons to instruct a witness not to answer, and beyond the scope is not one of them. Every attorney should know these and be prepared to spit them out from memory during a deposition. (1) to preserve a privilege; (2) to enforce a limitation ordered by the court; and (3) to present a motion to terminate or limit the deposition under Rule 30(d)(3).
I’m out of space for this book review, but I will give you a great piece of my own advice. If you have any cases where you have sued a corporation, business or entity, read this book, take good notes and thank me later. You will absolutely be equipped to get the information you want and need in order to win your case and win big. This book should absolutely be a part of your trial library.
