Reviewed by Kaitlin Spittell
Originally published in the April - June 2021 issue of Trial Talk from the Colorado Trial Lawyers Association
Mr. Kosieradzki outdid himself with this book – which serves as a guide for tackling 30(b)(6) depositions. This is a 594-page guide that includes a compilation of the statutory and case law that dictates the purpose and structure of a 30(b)(6) deposition. Plaintiff attorneys in various areas of the law, including employment law, understand that the deposition of the corporate party is a critical part of discovery. The book even starts with a great cover picture.
This book breaks down why taking a 30(b)(6) deposition is important, the types of information that can be learned dur - ing a 30(b)(6) deposition, and the true scope of a 30(b)(6) deposition. The book contains tips and strategic information that even experienced attorneys benefit from learning for their next 30(b)(6) deposition. Moreover, it provides an overarching theme of assisting attorneys to effectively tackle the hurdles that occur when dealing with a corporate defendant. Although seasoned attorneys will learn something new from this book, or be reminded of helpful procedures, any attorney taking his or her first 30(b)(6) deposition will find it an invaluable resource.
The book has an ample table of content which directs the reader to different aspects of preparing and conducting a 30(b)(6) deposition, including legally backed responses to opposing counsel’s improper objections, and opposing counsel’s obligations to the prepare a 30(b)(6) deponent for the deposition.
The book consists of sixteen chapters, each of which is broken down into easy-to-follow subparts, and each contains a helpful list that summarizes the content of the chapter. Throughout the chapters, Mr. Kosieradzki includes helpful examples when explaining a topic and how the information may play out in your practice. Some examples also provide much needed comic relief when learning about how to im - prove your 30(b)(6) deposition related strategy. This review will touch on those chapters that go beyond reciting the language of Rule 30(b)(6) and how to properly notice a deposition.
Chapter 2 of the book, titled Building a Record, breaks down the purpose and types of information that can be learned at a 30(b)(6) deposition. Mr. Kosieradzki suggests beginning with the prima facie elements of your claim, then “locking down” the facts.1 While depositions are, of course, a way to discover facts, they are also useful for identifying what facts are missing and what facts are undisputed by the parties.2 Lastly, depositions can be used to preemptively neutralize affirmative defenses before facing a motion or trial.
Chapter 8, Scope of the 30(b)(6) Notice, informs the reader that the notice of a 30(b)(6) has no limitation under Rule 30(b)(6); rather the 30(b)(6) deposition may seek any information that is discoverable under F.R.C.P. 26(b)(1).4 This chapter touches on the purpose of discovery as stated in F.R.C.P. 26(b)(1) which is important because pursuant to the rule counsel has a duty to make a reasonable inquiry as to the existence of discoverable documents and to assure their production, which requires more than just accepting the client’s word for the matter. This standard is important when seeking information from a 30(b)(6) deponent. It is common for defendant organizations to attempt to limit the area of inquiry. To confidently respond to those objections, it is important to know the foundation of discovery. Beyond requesting information about the facts of the case, topics included in a 30(b)(6) notice may include requests of the organization’s subjective beliefs, opinions, and interpre - tation of documents and events.6 This chapter includes examples on each category of topics listed above to show how these different categories can play an important part of discovery. The chapter also includes sample topics to include in a 30(b)(6) notice.
A 30(b)(6) deposition may also be used as a tool for process-based discovery as described in Chapter 11, ProcessBased Discovery. Process-based discovery is an inquiry into the process the other party used to produce requested information or documentation.8 Process-based discovery is appropriate when (1) responses to written discovery appears incomplete; (2) failure to share information during a meet-and-confer to resolve a discovery dispute; or (3) information exchanged is provided in an illegible format.9 The chapter dis cusses case law where courts have permitted process-based discovery for the categories listed above.10 This chapter provides useful insight on when and how to seek process-based discovery assistance from a court when plaintiff’s counsel has suspensions about whether additional documents in fact exist, but were not produced. Lastly, the chapter advises attorneys how to use a 30(b)(6) deposition when it is believed that electronically stored information (ESI) was destroyed.
The deposition of an individual who has been designated as an agent of the organization for the 30(b)(6) deposition has certain requirements which are discussed in Chapter 13, Duty to Prepare. The response “I don’t know” should not occur at a 30(b)(6) deposition. The organization has an obligation to designate one or more persons to testify on the matter specified in the deposition’s notice and it also has a duty to prepare its witness(es). Producing a witness who does not have the requisite institutional knowledge is sanctionable. Moreover, if the 30(b)(6) deponent is not an officer, director, or managing agent, that employee must consent to bind the organization with their answers.13 Next, the chapter discusses in detail the organization’s duty to properly prepare the 30(b)(6) deponent. A guide of potential questions to ask in a 30(b)(6) deposition regarding the witness’s preparation is included at the end of the chapter. Don’t forget, if the witness is not prepared on all noticed topics, the responding party has a duty to provide someone else!
The next chapter, Chapter 14, Scope of Inquiry, discusses the proper scope of a 30(b)(6) deposition. Limiting the scope of a 30(b)(6) deposition is not allowed.16 While the other party must prepare the witness on topics listed in the 30(b)(6) notice, that does not limit the scope of the questions that may be asked during the de position. This chapter discusses court rulings across the different circuits. It is important to note that answers to questions outside of the scope of the 30(b)(6) notice are not binding upon the organization. A defending attorney cannot instruct a witness not to answer a question. They can only object and make a record that the question is “beyond the scope” of the notice.19 This chapter provides helpful insight on how courts view 30(b)(6) deposition issues related to the scope and how to respond when opposing counsel at - tempts to limit your deposition.
Chapter 15 goes into detail on deposition obstruction, including different tactics opposing counsel may use, how it is not proper, and how to pursue sanctions for such actions. The chapter also includes examples on how to make a record of opposing counsel’s obstruction tactics.
The remaining chapters discuss how to use the information gained from a 30(b)(6) deposition to bind the organization and how to use the testimony at trial. Because a 30(b)(6) deposition binds the organization there are certain consequences if the witness is not pre - pared or refused to provide certain evidence/information, including having responsive information excluded from trial. The book ends with a discussion of how to deal with changing testimony at trial and provides uses for bringing 30(b)(6) deposition testimony into evidence at trial.
This book is well worth the price. Christine Breen, senior associate at Truhlar and Truhlar, LLP, and Kaitlin both read the book while preparing for depositions. Christine deposed the 30(b)(6) designee in the case while both attorneys worked to prepare for depositions. She was able to immediately use the practical advice in the book. Christine was able to get additional deposition time due to the designee’s lack of knowledge and preparation of certain topics in the 30(b)(6) notice. Christine also confidently and accurately responded to opposing counsel’s objections regarding the scope of questioning.
30(b)(6) Second Edition by Mark R. Kosieradzki