The Definitive Guide to Using FRCP 30(b)(6) Depositions in Suing Governmental Agencies

Federal Rule of Civil Procedure 30(b)(6) and state court equivalents, are powerful discovery tools for litigants seeking information from organizations, including governmental agencies. This guide provides a comprehensive, step-by-step approach to leveraging 30(b)(6) depositions when suing government entities in federal court.

What Is a 30(b)(6) Deposition?

• FRCP 30(b)(6) and similar state court rules allow a party to depose a governmental agency by serving a notice or subpoena that describes, with “reasonable particularity,” the topics for examination.
• The agency must then designate one or more representatives to testify on its behalf regarding those topics. These representatives speak for the agency, and their testimony is binding on the entity.

Step 1: Drafting a 30(b)(6) Deposition Notice

• Describe Topics with Reasonable Particularity: The notice must clearly specify the matters for examination. Vague or overly broad topics can be objected to or lead to inadequate preparation.
  
• Meet and Confer Requirement: As of December 1, 2020, parties must meet and confer in good faith about the topics before or promptly after serving the notice. This helps clarify ambiguities and reduce disputes.
• Best Practice to Avoid Motions: Send a draft list of topics to opposing counsel before serving the formal notice to facilitate productive discussion and avoid unnecessary motion practice.

Step 2: Understanding the Government’s Obligations

• Designation of Witnesses: The agency must designate one or more individuals who consent to testify on its behalf. These can be officers, directors, managing agents, or other knowledgeable persons.
  
• Preparation of Witnesses: The agency must make a good faith effort to educate its designees, including reviewing internal documents, interviewing employees, and consulting outside experts if necessary. The witness must testify about information “known or reasonably available” to the agency—not just their personal knowledge.
  
• Binding Testimony: The answers given are considered the agency’s official position and can be used as admissions at trial.

Step 3: Navigating Privilege and Objections

• Privilege Issues: Government agencies may assert privileges such as attorney-client, work product, or deliberative process privilege. However, factual matters are generally subject to inquiry, even if they have been disclosed in interrogatory responses.
  
• Scope of Questions: The agency can object to questions outside the scope of the notice, but must move for a protective order if it seeks to avoid answering certain topics. Simply raising objections is insufficient.
  
• Work Product and Attorney Involvement: Courts are cautious about allowing 30(b)(6) depositions that would require government trial counsel to reveal mental impressions or legal strategies. However, agencies cannot use privilege to shield all factual information.

Step 4: Conducting the Deposition

• Master the Fundamentals of Depositions Before you Start: Fully understand the purpose, goals and parameters for taking depositions before you start the deposition. Read our definitive guide for lawyers on how to take a deposition.
• Questioning: Focus on the topics listed in the notice. If the witness is unprepared or cannot answer, the agency may be required to produce another witness or face sanctions.
• Admissions: Testimony is binding on the agency and can be used to impeach or as substantive evidence at trial.
  
• Multiple Witnesses: If no single person can address all topics, the agency must designate multiple witnesses, each prepared on specific subjects.
  

Step 5: Addressing Common Challenges

• Overbroad or Vague Notices: Work collaboratively to narrow topics. If disputes persist, seek court intervention early.
  
• Inadequate Preparation: Courts may impose sanctions if the agency fails to adequately prepare its witness.
  
• Privilege Disputes: Be prepared to litigate privilege issues, but remember that factual information is generally discoverable.

Special Considerations for Governmental Agencies

• No Excptions for Governmental Agencies: Government agencies are subject to 30(b)(6) just like private entities. Courts have rejected arguments that government agencies are exempt from these discovery obligations.
  
• Law Enforcement and Enforcement Actions: Some courts may limit 30(b)(6) depositions of government law offices acting as trial counsel, especially where testimony would reveal privileged information or litigation strategy. However, factual matters remain fair game.

Practical Tips for Plaintiffs Litigating Against Governmental Agencies

• Use Government Agency Depositions Early in Discovery: 30(b)(6) depositions can help identify key witnesses, documents, and agency positions early in the case. 
• Plug Evidentiary Gaps: Use depositions to obtain binding admissions and clarify ambiguities in the agency’s responses.
• Document Everything: Keep detailed records of meet-and-confer efforts, objections, and agency responses to preserve issues for the court.

 

Books and CLEs for Lawyers on FRCP 30(b)(6) Depositions of Governmental Entities

There are a number of books and CLEs that help lawyers understand and excel at creating notices for 30(b)(6) depositions, methods for taking these depositions, and preventing non-responsive answers:

30(b)(6): Deposing Corporations, Organizations & the Government

This is a definitive guide to deposing governmental entities. The book covers the use of these depositions in federal court, noting all of the important case law as it pertains to taking the deposition of governmental entities. Additionally, the book provides an overview of each state's equivalent procedural rules, how they differ from FRCP 30(b)(6), and the applicable state court case law pertaining to these depositions.  It is the only book solely focused on government entity depositions that fully develops the concepts necessary to master this area of practice. The second edition includes the most recent 2020 amendments to F.R.C.P 30(b)(6).

The Deposition Handbook, 6th Edition

This is the definitive book on depositions of all varieties, written for lawyers in all areas of practice.  Now in its 6th edition, the book has expanded to cover the new version of 30(b)(6), video depositions, zoom depositions, and much more.  Used by everyone from in house counsel for Fortune 500 companies, Big Law such as Jones Day and Susman Godfrey, and top tier law schools including Harvard Law School.

It’s All in the Documents: Using 30(b)(6) Depositions for Discovery

Governmental entities often respond to document discovery requests with objections and incomplete answers. Rule 30(b)(6) depositions can be used to identify important documents and create a bulletproof record to virtually ensure that you will win your motions to compel. This video shows you how to use government entity depositions to obtain document discovery as well as testimony.

New 30(b)(6) Deposition Strategies & Updates

In 2020, Rule 30(b)(6) was amended to establish the need for a “meet and confer” before taking a 30(b)(6) deposition. Some states have amended their rules to conform to the federal rule; others have added different provisions within their own rules. Strategies to evade disclosures from 30(b)(6) depositions have evolved, and you will need to update your practice methods in order to obtain the best outcome in a government entity deposition. 

Additional books and videos for lawyers on 30(b)(6) can be found here.

Conclusion

FRCP 30(b)(6) depositions are a critical tool for plaintiffs suing governmental agencies. By carefully drafting deposition notices, collaborating with opposing counsel, understanding privilege boundaries, and insisting on thorough preparation, litigants can obtain binding, authoritative testimony that can shape the outcome of their case. Always stay current with rule amendments and local practices to maximize the effectiveness of this discovery device.