This article originally appeared in Vol. 26, No. 7, The Colorado Lawyer 87 (July 1997). It is reproduced here by permission of the Colorado Bar Association. All rights reserved. Material that originates with the Colorado Bar association and appears in The Colorado lawyer is copyrighted and may be reproduced only with express permission. Please contact the editorial office at (303) 860-1118 if you have any questions about downloading or reproducing material from The Colorado Lawyer.
Among the most dangerous depositions are those authorized under Rule 30(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."). Pursuant to this rule, a party may serve notice on a corporation or other organization that designates "with reasonable particularity the matters on which examination is requested."1 The noticed organization must then "designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf" and "may set forth, for each person designated, the matters on which the person will testify."2 Persons so designated must testify "as to matters known or reasonably available to the organization."3
What makes Rule 30(b)(6) depositions dangerous is that statements made by the person designated (the "deponent") can bind the designating organization as judicial admissions to the same extent that testimony of a party deponent is binding.4 Special dangers arise when the designee is asked questions outside the intended scope of the deposition and when the deponent is asked questions about facts communicated to the deponent by the designating organization's counsel. This article's intent is to help prepare counsel defending Rule 30(b)(6) depositions to deal with such questions.5
A List of Dangers
Answering questions beyond the proper scope of Rule 30(b)(6) presents several dangers to the designating organization. Such answers may:
1) bind the designating organization on issues about which the designee is neither prepared nor authorized to testify;
2) conflict with and be used to impeach testimony a properly prepared and authorized deponent is intended to offer;
3) reveal the legal strategies of the designating organization's counsel, waiving the work product and attorney-client privileges;6 and
4) once disclosed, lose legal protection.
It is therefore critical that counsel defending a Rule 30(b)(6) deposition make every effort to protect the rights of the designating organization by, in order of preference:
2) preventing answers to questions beyond the scope from binding the designating organization as the admissions of a party deponent.
The scope of Rule 30(b)(6) questioning is determined with input by each party before the time of the deposition. First, the noticing party states "with reasonable particularity the matters on which examination is requested." Second, the designating organization sets forth "the matters on which the person will testify." Questions about subjects outside the "matters" described in the notice and designation are dangerous and objectionable for the reasons described above.
The notice provides defending counsel with stronger grounds on which to object to questions than does the designation. First, the noticing party's statement "with reasonable particularity" has thus far been addressed, in published decisions, by two federal courts.7 Conversely, no court appears to have addressed the situation in which the disputed question is beyond "the matters on which the person will testify." Therefore, defending counsel who argues from the designation has only the language of the rule as supporting authority, whereas counsel who argues from the notice has the benefit of at least some judicial interpretation.
Second, as a matter of common sense and equity, defending counsel usually is in a stronger position arguing that the noticing party is asking questions beyond the scope of its own notice than he or she would be arguing that his or her client's own designation gives it unfettered discretion to limit the noticing party's discovery. When arguing from the designation, defending counsel is arguably in a stronger equitable position where the designating organization has named more than one witness, each to testify on an aspect of the noticing organization's described subject matter. In such a case, counsel can reasonably argue that the witness' testimony should bind the designating organization only as to matters on which the witness has been designated to testify, even though there is as yet no case law directly addressing this proposition.
In either case, defending counsel can and should argue on the basis of the language and the purposes of Rule 30(b)(6). For example, one of the purposes of Rule 30(b)(6) is to avoid the problem that arises when a party notices a particular corporate officer and the corporation has no way of knowing whether the officer knows anything about the matters on which the officer will be deposed.8 This purpose of Rule 30(b)(6) would be thwarted were an attorney permitted to ask a 30(b)(6) designee questions that are totally unrelated to matters listed in the notice and on which he or she is prepared to testify.9 In addition, there would be no point to the requirement that the designating organization state "the matters on which the person will testify," if the noticing party can ask questions without limitation.10
Defending Against Questions Beyond The Scope
Fed. R. Civ. P. 30(d)(1) states, in relevant part, "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3)." Fed. R. Civ. P. 30(d)(3), in turn, allows counsel to move for a protective order under Rule 26(c), where "the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party."
There is no privilege recognized either by the Federal Rules of Evidence or applicable case law for questions that are beyond the scope of the Rule 30(b)(6) designation. Moreover, sanctions may be imposed pursuant to Fed. R. Civ. P. 30(d)(2) for "impediment, delay, or other conduct that has frustrated the fair examination of the deponent."11 Therefore, except where privilege or an existing evidentiary court order is clearly at issue, it is risky to instruct the deponent not to answer a question on the grounds that the question is beyond the scope of Rule 30(b)(6), unless counsel immediately seeks a protective order. The party seeking the protective order bears the burden of justifying the instruction not to answer.12
Only two reported federal cases have directly addressed the question of whether a protective order should issue where questions are beyond the scope of a Rule 30(b)(6) designation. In Paparelli v. Prudential Insurance Co. of America,13 a personal injury plaintiff asked the defendant's Rule 30(b)(6) designees questions beyond the scope of the Rule 30(b)(6) designations. The defendant's counsel instructed the witnesses not to answer. The court held that, pursuant to the language of Rule 30(b)(6), "matters on which the examination is requested" limits the meaning of "matters known or reasonably available to the corporation." The examining party, therefore, "must confine the examination to the matters stated 'with reasonable particularity' which are contained in the Notice of Deposition."14 Should the questioning go beyond that scope, the Paparelli court held that it is improper simply to instruct the witness not to answer. The proper procedure is to suspend the deposition, state objections on the record, and file a motion for a protective order in accordance with Fed. R. Civ. P. 30(d).15
The court reasoned, first, that it makes no sense for a party to state in a notice that it wishes to examine a representative of a corporation on certain matters, have the corporation designate the person most knowledgeable with respect to those matters, and then ask the representative about matters totally different from the ones listed in the notice.16 The court further noted that one of the purposes of Rule 30(b)(6) is to avoid the problem that arises when a party notices the deposition of a particular corporate officer and the corporation has no way of knowing whether the officer knows anything about the matters on which he or she will be deposed. Thus, the court noted that the purpose of Rule 30(b)(6) would be thwarted if a 30(b)(6) designee can be asked questions totally unrelated to matters listed in the notice and on which he or she is prepared to testify.17 Finally, the court observed that there would be no point to the requirement that the subject matter of the deposition be noticed with "reasonable particularity" if the deponent can be asked questions without limitation.18
In King v. Pratt & Whitney,19 the plaintiff asked the defendant's Rule 30(b)(6) designee questions beyond the scope of Rule 30(b)(6). The defendant terminated the deposition and moved for a protective order. Contrary to Paparelli, the King court held that a motion for a protective order should not have been made, and that the deposition should have continued:
Colorado courts have not yet addressed the Paparelli/King dichotomy. One Tenth Circuit decision has cited to King, but only in dicta.24
Work-Product Privilege-A Special Case
Questioning in a Rule 30(b)(6) context that may impinge on the work product or attorney-client privileges is particularly dangerous, because it threatens to elicit testimony regarding defending counsel's assessment as to the weaknesses of counsel's case, in the guise of judicial admissions of fact that can bind the designating organization. Defending counsel should, thus, be alert to assert privilege when such questions are posed. Moreover, unlike the case with general questioning that is beyond the scope of a Rule 30(b)(6) designation, pursuant to Fed. R. Civ. P. 30(d)(1), defending counsel may direct the deponent not to answer "when necessary to preserve a privilege." The rule does not require defending counsel to move for a protective order.
Of the two privileges, the attorney-client privilege has been invoked less successfully because it is more frequently held to have been waived or inapplicable. For example, "[B]y placing into issue a confidential communication going to the claim or defense, a party impliedly waives the attorney-client privilege with respect to that communication."25 Likewise, "where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information," the privilege has been held to have been waived.26 Finally, courts have held that the attorney-client privilege is inapplicable to information communicated by a plaintiff to the plaintiff's attorney in the knowledge that it will comprise much of what the plaintiff will rely on to support the plaintiff's contentions.27 The courts have held that such a communication was never meant to be confidential.28
The work product privilege has been more successfully invoked, particularly where "mental impression," as opposed to factual, work product is at issue.29 Where a work product issue arises in the course of a Rule 30(b)(6) deposition, defending counsel should seek an in camera review of each discovery request in which mental impression work product is sought.30
Defending counsel should be aware that the rules as to work product are the same in the Rule 30(b)(6) context as in any deposition.31 Thus, the deponent may be required to testify as to facts learned from counsel32 and the party asserting the privilege bears the burden of establishing that the privilege is applicable.33 Moreover, under Rule 26(b)(3), factual work product, unlike the attorney's mental impressions, is discoverable on a showing that (1) the party seeking discovery has substantial need of the materials in the preparation of his case and (2) he or she is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.34 In applying Rule 26(b)(3), the court has broad discretion to determine whether factual work product should or should not be disclosed.35
Therefore, defending counsel should seek factual grounds on which to argue that the disputed questions are "indirect attempts to ascertain the manner in which the adversary is preparing for trial."36 Such discovery would be inappropriate.
The issue unaddressed in King is whether questions answered pursuant to "the general deposition rules" bind the designating organization in the same manner as answers to questions answered within the scope of Rule 30(b)(6). The logical answer is that such answers should be treated the same as answers given by any other fact witness, and, therefore, should not bind the party being deposed.37 Such a result is consistent with both the King court's expressed purpose of not requiring the examining party to "simply re-notice a deponent under the regular notice provisions and ask him the same questions that were objected to"38 and with the Paparelli court's interpretation of Rule 30(b) (6), which protects the designating party from having to answer questions that are beyond the scope of the notice.39
In the absence of case law to resolve this question, defending counsel should object to the improper questions and note, on the record, that answers to questions beyond the scope of the Rule 30(b)(6) designations are not intended as the answers of the designating organization and do not bind the designating organization. If necessary, defending counsel should consider demanding, pursuant to Fed. R. Civ. P. 30(d)(3), that the deposition be suspended for the time necessary to move for a ruling to that effect.40 Defense counsel should also lodge objections at trial whenever opposing counsel seeks to introduce such evidence.
Finally, defending counsel should seek jury instructions stating that such answers were merely the answers or opinions of individual fact witnesses, not admissions of the designating organization. In this way, the damaging effects of such answers may be diluted and a record will be preserved for appeal. Preservation of the matter for appellate review is particularly important in this area because the law is unsettled in nearly all jurisdictions.
Conclusion
Questions beyond the proper scope of Rule 30(b)(6) pose dangers to the party defending a 30(b)(6) deposition. Identified measures by defending counsel can mitigate these dangers. Since the law is unsettled in most jurisdictions, it is vital to create a good appellate record.
4. See Fed. R. Civ. P. 32(a)(2).
5. Although this article principally focuses on federal law, C.R.C.P. 30(b)(6) is virtually identical to Fed. R. Civ. P. 30(b)(6). As such, the principles discussed in this article are equally relevant to Colorado actions.
6. Answers to questions impinging on work product and attorney-client privileges are beyond the scope of Rule 30(b)(6), as they are beyond any discovery, assuming the privileges are applicable.
7. See King v. Pratt & Whitney, 161 F.R.D. 475 (S.D.Fla. 1995); Paparelli v. Prudential Insurance Co. of America, 108 F.R.D. 727 (D. Mass. 1985).
8. See Paparelli, supra, note 7 at 730.
11. See also D.C. Colo. Local R. 30.1C (prohibiting abusive deposition conduct).
12. See Riddell Sports, Inc. v. Brooks, 158 F.R.D. 555 (S.D.N.Y. 1994).
15. See Hearst/ABC-Viacom Entertainment Services v. Goodway Marketing, Inc., 145 F.R.D. 59 (E.D.Pa. 1992) (citing Paparelli for proper procedure where witness is unreasonably annoyed, embarrassed, or harassed); Paparelli, supra, note 7 at 730-31; Hoechst Celanese Corp. v. National Union Fire Insurance Co., 623 A.2d 1099 (Del.Super.Ct. 1991).
16. See Paparelli, supra, note 7 at 729-30.
24. See Stone v. Norton International, Inc., 170 FRD 498 (D.Utah 1997).
25. Mountain States Telephone & Telegraph v. DiFede, 780 P.2d 533, 543 (Colo. 1989).
26. See Jakobleff v. Cerrato, Sweeney & Cohn, 468 N.Y.S.2d 895, 897 (N.Y.App.Div. 1983).
27. See U.S. ex. rel. Stone v. Rockwell International Corp., 144 F.R.D. 396, 399 (D.Colo. 1992).
29. See, e.g., Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985); American National Red Cross v. Travelers Indemnity Co., 896 F.Supp. 8 (D.D.C 1995).
30. See United States v. Zolin, 491 U.S. 554 (1989); United States v. Nobles, 422 U.S. 225 (1975); Federal Savings & Loan Insurance Corp. v. Ferm, 909 F.2d 372 (9th Cir. 1990).
31. See, e.g., Hickman v. Taylor, 329 U.S. 495 (1947); Equal Opportunity Commission v. American International Group, Inc., No. 93 Civ. 6390 (PKL) RLE (S.D.N.Y. July 18, 1994); United States v. District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America, No. 90 Civ. 5722 (CSH), (S.D.N.Y. Aug. 18, 1992); Barrett Industrial Trucks, Inc. v. Old Republic Insurance Co., 129 F.R.D. 515 (N.D.Ill. 1990); Protective National Insurance Co. v. Commonwealth Insurance Co., 137 F.R.D. 267 (D.Neb. 1989); Clute v. Davenport Co., 118 F.R.D. 312 (D.Conn. 1988); Connolly Data Systems, Inc. v. Victor Technologies, Inc., 114 F.R.D. 89 (S.D.Cal. 1987); Phoenix National Corp. v. Bowater United Kingdom Paper Ltd., 98 F.R.D. 669 (N.D. Ga. 1983).
32. See, e.g., U.S. v. Pepper's Steel & Alloys, Inc., 132 F.R.D.695 (S.D.Fla. 1990); Protective National, supra, note 31.
33. See Barclays American Corp. v. Kane, 746 F.2d 653 (10th Cir. 1984).
34. See Fed. R. Civ. P. 26(b)(3); accord Hickman, supra, note 31 at 509-10.
35. U.S. ex. rel. Stone, supra, note 27 at 401.
36. Bercow v. Kidder, Peabody & Co., 39 F.R.D. 357, 358 (S.D.N.Y. 1965).
37. This assumes that the testimony could not be construed as an admission of a party opponent pursuant to Fed. R. Evid. 801(d)(2).
38. King, supra, note 7 at 476.
39. See Paparelli, supra, note 7 at 729-30.
40. Defending counsel should be aware, however, that Fed. R. Civ. P. 30(d)(3) also states that the provisions of Fed. R. Civ. P. 37(a)(4) apply to the award of expenses incurred in relation to the motion. Accordingly, suspending a deposition poses some risk to the defending counsel.
Column Ed.: Richard L. Gabriel of Holme Roberts & Owen, Denver- (303) 861-7000
Those wishing to submit articles for publication are encouraged to call the column editor. This month's article was written by Rodger L. Wilson and Steve C. Posner, attorneys with the Denver firm of Wilson & Mayhan, LLC, (303) 721-7406.