The Rule 30(b)(6) Deposition in Nevada

The Rule 30(b)(6) Deposition in Nevada

     The law recognizes a legal fiction—that a corporation or other legal entity is a separate “person” who acts independent of the owners of the entity.[1]  Because the entity is a separate person, the law also allows a deposition of the entity under Rule 30(b)(6), which reads:

(b) Notice of the Deposition; Other Formal Requirements.

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

Some practitioners inaccurately refer to a Rule 30(b)(6) entity deposition as a deposition of the “PMK” or “Person Most Knowledgeable”.

It is All About the Spokesperson . . . .

The law under Rule 30 does not require the entity to provide the person with the “most” knowledge on any particular topic.  It only requires the entity to provide a spokesperson whose testimony on a designated topic will bind the company.  The company could present its janitor to testify if it educates the janitor on the topics and “represents the knowledge of the corporation, not the individual deponent’s.”  Great Am. Ins, Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 538 (D. Nev. 2008) (Rule 30(b)(6) designee binds company regardless of designee’s personal knowledge on the subject).[2]

The Notice

As a practical matter, the party wishing to take the deposition uses Rule 30(b)(6) to name the company (not an individual) as a witness whose testimony it desires.  The deposing party must designate (as part of the deposition notice), with “reasonable particularity”, the subject matters of the deposition.  There is no limit to the number of subjects.  Wise practitioners keep the topics broad enough to allow them to follow where the topic leads during the deposition, but specific enough to reasonably put the company on notice that it may expect questions about that topic.

Objections; Protective Orders

The company may object to topics outlined in a Rule 30(b)(6) notice, but some authorities suggest the company must also seek a protective order from the court before going forward with the deposition.  U.S. E.E.O.C. v. Caesars Entm’t, Inc., 237 F.R.D. 428, 436 (D. Nev. 2006) (discussing the circumstances under which a protective order to Rule 30(b)(6) topics may be appropriate); Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 406 (E.D. N.C. 2014) (“The proper procedure to object to a Rule 30(b)(6) deposition notice is not to serve objections on the opposing party, but to move for a protective order.”).  Moreover, the filing of a motion does not relieve a deponent from appearing at a deposition—that obligation is only relieved by a protective order.  Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Ass’n, 316 F.R.D. 327, 336–37 (D. Nev. 2016) (citing Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964) (“unless [the movant] has obtained a court order that postpones or dispenses with his duty to appear, that duty remains”); see also In re Toys “R” Us–Delaware, Inc. Fair & Accurate Credit Transactions Act (FACTA) Litig., No. ML 08–1980 MMM (FMOx), 2010 WL 4942645, at *3 & n. 2 (C.D.Cal. July 29, 2010) (collecting cases, and finding failure to attend *337 deposition was unexcused despite the pendency of a motion for protective order)).

The Testimony

Magistrate Judge Leen explains the obligation to prepare a witness to testify:

The duty to prepare a Rule 30(b)(6) designee goes beyond matters personally known to the witness or to matters in which the designated witness was personally involved. Buycks-Roberson v. Citibank Federal Savs. Bank, 162 F.R.D. 338, 343 (N.D. Ill.1995); Securities and Exchange Commission v. Morelli, 143 F.R.D. 42, 45 (S.D. N.Y.1992). The duty to produce a prepared witness on designated topics extends to matters not only within the personal knowledge of the witness but on matters reasonably known by the responding party. Alexander v. Federal Bureau of Investigation, 186 F.R.D. 137, 141 (D. D.C.1998). By its very nature, a Rule 30(b)(6) deposition notice requires the responding party to prepare a designated representative so that he or she can testify on matters not only within his or her personal knowledge, but also on matters reasonably known by the responding entity.” Alliance v. District of Columbia, 437 F.Supp.2d 32, 37 (D.D.C.2006), citing Alexander, supra, at 141.

Great Am. Ins., 251 F.R.D. at 539.

[1] Assuming the owners uphold corporate formalities.  Failing to do so could invite a claim for piercing the corporate veil.

[2] Magistrate Judge Peggy Leen provided a great overview of the obligations of the parties relative to Rule 30(b)(6) in the Great American case.  It is a worthwhile read for every practitioner.

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Jay Young, Mediator and Arbitrator

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator. Mr. Young can be reached at 702.667.4868 or at jay@h2law.com. The information provided on this site does not, and is not intended to constitute legal advice. You understand each legal matter should be considered to be unique and subject to varying results. You should not take or refrain from taking action based on any information contained on this website without first consulting legal counsel, as it is not intended to advise you on your particular matter. Further, you understand that no guarantee is given that the information contained herein is an accurate statement of the law at any given point in time, as the law is constantly changing. Guest bloggers are responsible for their own content, which is not to be construed as an article authored by Jay Young. Please see http://nevadalaw.info/disclaimer

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