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Energy Law Exchange

May 11, 2020

A Corporate Deponent May Designate Prior Testimony as Responsive to Topics in a Corporate Deposition Notice in Lieu of Having to Produce a Witnesses to Answer the Same Questions Again

A corporation facing repeated corporate deposition notices seeking testimony on the same topics covered by corporate representatives in previous cases has the option to designate prior testimony on duplicative topics rather than tendering a live corporate witness to cover areas that have been covered before.

Federal and state rules allow a party in litigation to notice the deposition of a corporation, requiring the designation of one or more corporate representatives to provide binding testimony on behalf of the company. See, e.g. Fed. R. Civ. P. 30(b)(6); Tex. R. Civ. P. 199.2(b)(1); Ore. R. Civ. P. 39(C)(6); Md. R. 2-412. These rules require the party seeking the deposition to identify specific topics upon which it wants testimony, and the party upon whom the notice is served is required to designate one or more individuals to testify on those topics. “If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation,” even with regard to historical facts and events that occurred decades ago, beyond the memory or personal knowledge of any current employees of the company. See, e.g., U.S. v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996).

This heavy burden of preparation is made more onerous when a company is sued in multiple, similar cases, and each new plaintiff seeks to compel corporate representative testimony on the same historical topics that have been covered in corporate representative depositions many times before. In this situation, the company may meet its obligation under the rule by designating prior corporate representative testimony responsive to duplicative topics rather than designating a live witness to cover the same ground again. Federal courts have held that a corporation served with a deposition notice under Federal Rule of Civil Procedure 30(b)(6) may “designate a prior deposition as the testimony of the corporation” if this designation is “made in response to the deposition notice” and is clear enough so that the requesting counsel can evaluate whether the prior testimony is sufficiently on point to make a subsequent corporate representative deposition superfluous. Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 121, 123 (E.D. Mich. 2019). A corporation may show that the record is fully developed on a topic so that another corporate representative deposition on the same topic would be unreasonably duplicative and cumulative. Edwards, 331 F.R.D. at 121.

Because many states have adopted rules identical or substantially similar to Rule 30(b)(6), federal cases on this issue can be cited as persuasive authority before state courts, many of which take guidance from federal court interpretations of language similar to the applicable state rule.[1] A “corporate deponent may, in response to a 30(b)(6) notice, designate prior depositions as responsive and offer to be bound by the testimony given in those depositions in lieu of having to produce the same witnesses to answer the same questions again.” Majestic Bldg. Maint., Inc. v. Huntington Bancshares Inc., No. 2:15-CV-3023, 2018 WL 3358641, at *12 (S.D. Ohio July 10, 2018) (quoting EEOC v. Boeing, 2007 WL 1146446 (D. Ariz. 2007)). “However, such an intent should be clearly indicated as part of a response to a 30(b)(6) notice . . . so that opposing counsel (and, if necessary, the Court) can evaluate whether the prior testimony is sufficiently on point to make a subsequent deposition superfluous.” Prosonic Corp. v. Stafford, No. 2:07-CV-0803, 2008 WL 2323528, at *4 (S.D. Ohio June 2, 2008). A federal district court in Delaware denied a motion to compel a corporate representative deposition when the responding party had met its Rule 30(b)(6) burden by designating 80 pages of former testimony on the noticed topics. Novartis Pharms. Corp. v. Abbott Labs., 203 F.R.D. 159, 162-63 (D. Del. 2001); see also Last Atlantis Capital, LLC v. AGS Specialist Partners, 2013 US Dist LEXIS 128664, at *7 (N.D. Ill. Sept 4, 2013) (ruling that allowing corporation to designate “prior testimony as responsive 30(b)(6) testimony” was “a proper procedure”); see also Prosonic, 2008 WL 2323528, at *4 (“a party may, under certain circumstances, successfully argue that all or a portion of the subject matter of such a deposition has already been addressed and that prior depositions may be deemed to be the organization's response”).

In conjunction with the designation of prior testimony to address noticed topics, a corporation may also seek a protective order to exclude the topics on which the company’s corporate representative has already testified in other cases. See Fed. R. Civ. P. 26(c)(1) (court may issue protective order to protect party from “undue burden or expense”). Both federal and state discovery rules often require the court to consider “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Arguably, requiring a company representative to testify about the same topics on which the company has previously provided testimony, possibly more than once, is unreasonable, would create unnecessary and duplicative testimony, and would place an undue burden and expense on the company. See Anaheim Gardens v. United States, 124 Fed. Cl. 36, 41 (granting motion for protective order allowing corporation to offer previous testimony on certain noticed topics, finding that requiring corporation to designate a second witness to answer the same questions would be unreasonably duplicative).


[1] State courts often accept federal case law as persuasive authority when applying a state rule with language similar or identical to its federal counterpart. See, e.g., Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971) (Arizona); D.R. Horton, Inc.-Denver v. D & S Landscaping, LLC, 215 P.3d 1163, 1167 (Colo. App. 2008) (Colorado); Highland Select Equity Fund, L.P. v. Motient Corp., 906 A.2d 156, 166 (Del. Ch. 2006), aff'd, 922 A.2d 415 (Del. 2007) (Delaware); Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329, 334 (Fla. Dist. Ct. App. 2013) (Florida); Everage v. N. Indiana Pub. Serv. Co., 825 N.E.2d 941, 949 (Ind. Ct. App. 2005) (Indiana); Schlotzhauer v. Morton, 224 Md. App. 72, 85-86 & n.6 (2015), aff'd, 449 Md. 217 (2016) (Maryland); Perius v. Nodak Mut. Ins. Co., 2010 ND 80, ¶ 20, 782 N.W.2d 355, 361 (2010) (North Dakota); Covel v. Rodriguez, 2012 OK 5, ¶ 8, 272 P.3d 705, 709 (2012) (Oklahoma); State v. O'Key, 321 Or. 285, 292 & n.7, 899 P.2d 663, 672 (1995) (Oregon); Lujan v. Navistar, Inc., 555 S.W.3d 79, 86 (Tex. 2018) (Texas); Heartwood Home Health & Hospice LLC v. Huber, 2020 UT App 13, 459 P.3d 1060, 1065 (2020) (Utah); Casper v. Esteb Enterprises, Inc., 119 Wash. App. 759, 767, 82 P.3d 1223, 1228 (2004) (Washington); State ex rel. Universal Underwriters Ins. Co. v. Wilson, 241 W. Va. 335, 344-45 & n. 14 (2019) (West Virginia).

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