When a corporation is named as a defendant in litigation, one of the frequently used discovery tools is a notice to take the deposition of the corporation. Under Federal Rule of Civil Procedure 30(b)(6), a party serving a notice to take deposition on a corporation “must describe with reasonable particularity the matters for examination.” The corporation must designate one or more of its employees or agents to testify on its behalf with respect to each of the matters upon which examination is sought. It is not sufficient for the corporation to simply put forth a “know-nothing” witness who has no personal knowledge of the relevant issues and who is unable to answer questions: the Rule requires that “the persons designated must testify about information known or reasonably available to the organization.”
The last phrase was the subject of a recent decision by Magistrate Judge Pohorelsky in the litigation arising from the Air Cargo Antitrust Fuel Surcharge litigation pending in the United States District Court for the Eastern District of New York.¹
The conspiracy alleged by plaintiffs was that some thirty-two air carriers conspired to fix fuel surcharges on a worldwide basis over a six year period ending in 2006. By the time the notice to take deposition was served on one of the defendants in 2011, most of the witnesses who had any personal knowledge about the alleged events had left the employ of the airline and were no longer available to be deposed. A Rule 30(b)(6) deposition notice was served and the deposition of the airline’s corporate representative was, at least from the plaintiffs’ point of view, unsatisfactory since the witness put forth by the corporation to testify on its behalf had no personal knowledge of any meetings or communications.
Plaintiffs moved to compel a further deposition and the Court addressed the extent to which a party responding to a Rule 30(b)(6) notice of deposition is required to educate its witnesses to testify on behalf of events which occurred as long as a dozen years earlier when none of the persons with actual knowledge of the events were still employed by the party.
The Court held that the corporation, which no longer employed the persons with personal knowledge of the matters identified in the notice, was not absolved from complying with the 30(b)(6) deposition notice. In such a situation, “the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for corporation.” In the Air Cargo litigation, most of the employees who had participated in the meetings and communications which formed the basis for the alleged conspiracy were no longer employed by the airline. Detailed records of the meetings and communications apparently did not exist, making it a complicated process for the corporation to properly prepare its employees or agents to testify on its behalf. The Court, in requiring the corporation to again produce witnesses for a Rule 30(b)(6) deposition, held that the corporation was required to gather all documents, including e- mails, prepared or received by any employees of the corporation concerning the meetings and communications, and provide those documents to the witness or witnesses designated to testify on behalf of the corporation sufficiently in advance of the deposition date so that the designees could educate themselves about those matters. In addition, the Court imposed upon the designated corporate representatives the duty to speak, or attempt to speak, to all present or former employees of the corporation who were identified as having participated in the meetings and communications. The Court further directed that, to the extent counsel for the corporation had obtained information from past or present employees of the corporation about matters that involved the meetings and communications, that information had to be made available to the designees for their review.
The short decision crystallizes what a corporation must do in order to prepare its witnesses for a Rule 30(b)(6) deposition when the persons with personal knowledge of the matters at issue are no longer within its control and the corporation cannot be required to produce them for a deposition. The Court identified three particular steps that the corporation had to take:
1. Show the designees all documents that the corporation has with respect to the meetings and communications;
2. Have the designee speak or attempt to speak with the former employees who do have personal knowledge of the meetings and communications; and
3. Have counsel for the corporation provide to the designees all documents which counsel has unearthed concerning the meetings or communications at issue.
In short, a corporation cannot, when served with a Rule 30(b)(6) notice to take deposition, take the position that the employees with personal knowledge of the issues sought to be examined upon are no longer within its control and, therefore, the corporation has no duty to offer testimony concerning those matters.
¹ In Re Air Cargo Shipping Services Antitrust Litigation, MDL 1775, Memorandum Order, March 27, 2012.