Share |

Back Story: The 30(b)(6) Designation: A Distinction with a Difference

Embedded Scribd iPaper - Requires Javascript and Flash Player

42 Nevada Lawyer May 2014
THE 30(b)(6) DESIGNATION:
A DISTINCTION WITH A DIFFERENCE
In civil commercial practice, parties often need the deposition
testimony of an organization, whether it be a private corporation,
limited liability company or trust.
1
Although some practitioners
have resorted to PMK Deposition Notices, such depositions do
not bind the corporation. To ensure that testimony is binding on
the corporation, practitioners must resort to Rule 30(b)(6) of the
Nevada Rules of Civil Procedure and designate topics on which
corporations must provide a designated representative with
knowledge, but not necessarily personal knowledge. The previous
“have knowledge” or personal knowledge requirement was
eliminated for consistency with the federal rule.
2
While Nevada precedent has not articulated the distinctions
between a PMK Deposition and a Rule 30(b)(6) Deposition,
our United States District Court for the District of Nevada has
collected national precedent on the issue and provides ample
authority concerning the use of Rule 30(b)(6) Depositions. Since
“[f]ederal cases interpreting the Federal Rules of Civil Procedure
are strong persuasive authority because the Nevada Rules of Civil
Procedure are based in large part upon their federal counterparts,”
3
commercial practitioners should turn to the federal interpretation
of Rule 30(b)(6) for guidance.
The Distinction
The testimony of a Rule 30(b)(6) designee “represents the
knowledge of the corporation, not the individual deponents.”
4
Even though they may have no personal knowledge, Rule 30(b)(6)
designees must represent the corporation’s position and testify to the
corporation’s knowledge on the notice topics.
5
When a corporation
receives a Rule 30(b)(6) Deposition Notice, the corporation has the
duty and obligation to provide a knowledgeable witness who will
testify to “binding answers on behalf of the corporation.”
6
Thus,
unlike the traditional PMK Deposition that neither provides binding
nor knowledgeable testimony, Rule 30(b)(6) Depositions bind a
corporation to its knowledge.
The Scope of Knowledge
Although a Rule 30(b)(6) Deposition is not a memory test,
7
the corporation has a duty to “make a conscientious, good faith
effort to designate knowledgeable persons for 30(b)(6) depositions
and prepare them to fully and unevasively answer questions
about the designated subject matter.”
8
The fact that a person with
knowledge on the designated topics is no longer associated with
the corporation does not relieve it of the duty to prepare a Rule
30(b)(6) designee; the corporation must educate the designee with
information from documents, past employees or other sources.
9
If necessary, the corporation must also designate more than one
designee to address the relevant areas of inquiry included within
the Rule 30(b)(6) Notice.
10
The Balanced Interests
Rule 30(b)(6) is intended to streamline the discovery
process.
11
Serving a unique function by allowing a specialized
deposition, Rule 30(b)(6) empowers the corporation with the
ability to select and prepare witnesses who will provide binding
testimony for the corporation.
12
For the examining party, Rule
30(b)(6) serves as a discovery device to curb any temptation that
a corporation may have to strategically present deponents who
disclaim knowledge of facts clearly known to someone in the
organization.
13
While preparing for a Rule 30(b)(6) deposition can
be a burdensome process, courts have recognized that the burden
is a fair exchange for the privilege of using the corporate form to
conduct business.
14
Conclusion
Of course, there are a whole host of pitfalls, challenges
and nuances related to Rule 30(b)(6) Depositions that cannot be
covered in the limited space here. That said, any civil commercial
practitioner must be aware of the distinction between the historical
PMK Deposition and the Rule 30(b)(6) Depositions, paying close
attention to the burdens and obligations on both the corporation
and examining party.
1. For simplicity, this article refers to organizations collectively and
generically as “corporation.”
2. See Editor’s Note to NRCP 30(b)(6).
3. Executive Mgmt. Ltd. v. Ticor Title Insur. Co., 118 Nev. 46, 38 P.3d
872 (2002).
4. Great American Insur. Co. of New York v. Vegas Construction Co.,
Inc., 251 F.R.D. 534, 538 (D. Nev. 2008) (quoting United States v.
Taylor, 166 F.R.D. 356, 360 (M.D.N.C. 1996)).
5. Id.; United States v. Massachusetts Industry Finance Agency, 162
F.R.D. 410, 412 (D. Mass. 1995); Sprint Communications Co. v.
Theglobe.com, Inc., 236 F.R.D. 524, 526 (D. Kan. 2006).
6. Starlight Int’l. Inc. v. Herlihy, 186 F.R.D. 626, 638 (D. Kan. 1999).
7. Bank of New York v. Meridian BIAO Bank Tarzania, Ltd., 171 F.R.D.
135,150 (S.D.N.Y. 1997).
8. Great American Insur. Co., 251 F.R.D. at 539; Starlight, 186 F.R.D. at
639.
9. Taylor, 166 F.R.D. at 361.
10. Id.; Barron v. Caterpillar Inc., 168 F.R.D. 175, 176 (E.D. Pa. 1996); In
Re: Vitamins Antitrust Litigation, 216 F.R.D. 168, 172 (D.D.C. 2003).
11. Resolution Trust Corp. v. Southern Union Co. Inc., 985 F.2d 196, 197
(5th Cir. 1993).
12. Sprint, 236 F.R.D. 524; Taylor, 166 F.R.D. at 360.
13. Federal Deposit Insur. Co. v. Butcher, 116 F.R.D. 196, 199 (E.D.
Tenn. 1986).
14. Taylor, 166 F.R.D. at 361; see also Great American Insur. Co., 251
F.R.D. at 531.
FRANK M. FLANSBURG III, is a shareholder
of Marquis Aurbach Coffng. Flansburg focuses
his practice on commercial litigation, representing
businesses and entrepreneurs both in and out of
court. Flansburg has tried numerous cases and
has expertise in defending guarantors, business
disputes and construction law. He can be
reached at (702) 382-0711 or fmf@maclaw.com.
BY FRANK FLANSBURG, ESQ.

Published under a Creative Commons License By attribution, non-commercial
AttachmentSize
NevLawyer_May_2014_BackStory.pdf334.31 KB