May the Record Reflect
May the Record Reflect
70. Getting Down to Business: Deposing the 30(b)(6) Witness, with Veronica Finkelstein
Rule 30(b)(6) depositions can be a game-changer in litigation—but only if you know how to use them strategically. In this episode, former Assistant U.S. Attorney and current Wilmington Law professor Veronica Finkelstein shares expert guidance on understanding the purpose and power of a 30(b)(6) deposition, identifying the right corporate representative, drafting precise specifications, and preparing your designee for examination. Whether you're deposing a Fortune 500 company or a little mom-and-pop shop, this episode will fine-tune your approach to corporate testimony.
Topics
4:23 What is a 30(b)(6) deposition?
7:11 Why all trial lawyers should know about 30(b)(6) depositions
9:40 How deposing 30(b)(6) witnesses is different
14:27 Meet-and-confer requirement about specifications
17:44 Drafting specifications
20:20 Benefit of taking 30(b)(6) depositions
23:57 Qualities of a desirable corporate designee
25:54 Designees and fact witnesses
29:21 Corporate counsel and deposing counsel preparations
35:40 Who represents the designee?
40:05 Nonresponsive or jerk designees
43:24 Things to be mindful of during examination
45:39 When interrogatories are preferable
46:56 Cases to know: QBE and Marker
49:42 Deposition Skills: Philadelphia
51:53 Sign-off questions
Quote
“This is one of the few times in litigation when you get to pick your witness, so pick somebody good. Don’t pick somebody who’s the CEO of the company who doesn’t have time to get educated. Don’t pick somebody in HR who’s been following the policies wrong for the last 20 years and you’re never gonna unteach. Pick somebody who’s gonna be a really good mouthpiece on behalf of the company who you can educate properly.” Veronica Finkelstein
Resources
Veronica Finkelstein (bio)
J.C. Lore (bio)
Deposition Skills: Philadelphia (program)
NITA Women in Trial (program)
QBE Ins. Corp. v. Jorda Enters. Inc. (case)
Marker v. Union Fidelity Life Ins. Co. (case)
Law 360 article (PDF)
On today's episode of May the Record Reflect.
Veronica Finkelstein:And sometimes there's litigation where there's not a contentious issue necessarily, but there's an issue nonetheless that you kind of need fleshed out and an organization or a representative of that organization might be the one who can do it best. And that might be another example of when you want a 30B6 deposition. So let's say that you have some kind of copyright dispute between a company you represent and another company. And you just want to know, how do they store emails at the opposing company? How often do they delete or overwrite them? That's the kind of information that might not be central to the actual issues being litigated, but nonetheless might be something that you want to find out to give context to the discovery that you're receiving. If you don't receive the emails that you're expecting, maybe you want to understand why that might be so. And so that's another example of when you might want to use a 30B6 deposition. So I would That was Professor Veronica Finkelstein, and this is May the Record
Marsi Mangan:Reflect. May the Record Reflect Hello and welcome to the monthly podcast of the National Institute for Trial Advocacy. I'm your host, Marci Mangan, and in today's episode, we're talking about deposing the corporate witness, also known as taking a 30B6 deposition. I'm joined by Professor Veronica Finkelstein. She is an associate professor of law at Wilmington University School of Law. Veronica spent the majority of her career as an assistant United States attorney with the U.S. Department of Justice in Philadelphia before transitioning into this full-time teaching role. At the United States Attorney's Office, she served as the training officer and paralegal supervisor for the Civil Division before being selected as Senior Litigation Counsel. Veronica handled various civil affirmative and defensive matters, as well as criminal child exploitation cases. She tried numerous civil cases to defense verdicts, including tort, employment law, and medical malpractice, and successfully litigated cases on appeal. Veronica also investigated and prosecuted affirmative fraud claims, including Ketam actions. I'm very pleased to have Veronica Finkelstein back in the hot seat to talk about depositions, and in a first for May the Record Reflect, specifically to talk about the 30B6 examination. Here's our interview. So today my guest, once again, is Veronica Finkelstein.
Veronica Finkelstein:Veronica, welcome back. Thanks for having me. I'm excited about this topic. It's one of my favorites.
Marsi Mangan:Well, I'm really glad to have you back to talk about depositions again. The previous episode that we did together, I have to say, is one of my absolute favorites, and it cemented, at least in my mind, that you are a deposition assassin.
Veronica Finkelstein:Thank you so much for having
Marsi Mangan:me.
Veronica Finkelstein:I'll do my best.
Marsi Mangan:All right. Well, the clock is running. So listen, we all know what a fact witness deposition is. We all know what an expert witness deposition is. But what on earth is a 30B6 deposition? Are we examining robots?
Veronica Finkelstein:Let me give you a little bit of history for context. So there was a time when the federal rules of civil procedure and the similar state rules did not have a rule that's like Rule 30B6. And for purposes of our discussion, I'm just going to talk about the federal rule, but there is an equivalent rule in all of the state rules of civil procedure. There may be some nuances, but it essentially functions the same way. So there was a time when a rule like this didn't exist. And imagine that you're a little guy. who's got a tort case against a big company. And you're trying to find out who at the big company has information in discovery that would be useful for your case. So maybe you had a slip and fall in one of their restaurants and you're trying to figure out who knows about the policy for how often the floor is supposed to be mopped in this corporation's restaurants. Well, the way it used to work was you're the little guy. You don't know much about the corporation. You look on their website. You sort of figure out who might be the right person. You notice that deposition. You go through all of the hassle of getting ready for the deposition. You get them in the room. And the first question is, tell me about the policy for mopping the floor. And the person says, I don't know anything about that. And you ask, well, who's the right person? And the deponent says, oh, I don't know. I mean, it could be this other person. So you go through the same thing and you set up a deposition of that other person. And before you know it, you're 30 depositions deep and you don't have any information and you haven't found the right person. What you really wanted all along, truly, was to know the corporation's position. You didn't really care about what any of these individual people said because you're suing the corporation and it's a corporate policy. Well, Rule 30b-6 was designed to prevent that revolving door problem, to make it possible for you to have a deposition of an entity, an agency, an organization, a nonprofit, a So that's what you're doing under Rule 30b-6. I am sitting across the table from a human being, but that human being is not speaking on their own individual behalf. They are speaking as the mouthpiece of the organization or entity that I have served with the deposition notice.
Marsi Mangan:I see. That's a great example. And it really helps set the context for what we're going to be talking about today. So just as an observation, I know that not all trial lawyers and thus not all of our listeners will ever engage in this type of litigation. But do you think that learning about 30B6 depositions still have something to offer to them.
Veronica Finkelstein:I do. The example I gave you is a case where the opposing party is the organization, but there are lots of cases where individuals are suing other individuals, but information from an organization would still be incredibly useful in the litigation. Let me give you an example. Let's say you're litigating a car accident case. You're representing one driver who is litigating against the other driver. You may say to yourself, what does an organization have to do with this? Well, maybe you want to find out when the last time the traffic light at the intersection where the accident happened was serviced and whether or not there have been other accidents of similar type at that same intersection. Well, that's the kind of information that you'd want to get from an organization. And of course, you can serve interrogatories or document requests on the city that's responsible for the traffic light, but maybe you have some questions that you think could be better answered by an individual speaking on behalf of the city. And so there's an example of of where a 30B6 deposition might be incredibly useful. And sometimes there's litigation where there's not a contentious issue necessarily, but there's an issue nonetheless that you kind of need fleshed out and an organization or a representative of that organization might be the one who can do it best. And that might be another example of when you want a 30B6 deposition. So let's say that you have some kind of copyright dispute between a company you represent and another company, and you just want to know, how do they store emails at the opposing company? How often do they delete or overwrite them? That's the kind of information that might not be central to the actual issues being litigated, but nonetheless might be something that you want to find out to give context to the discovery that you're receiving. If you don't receive the emails that you're expecting, maybe you want to understand why that might be so. And so that's another example of when you might want to use a 30B6 deposition. So I would really encourage our listeners, whether they think that they're going to use it against an adversary or not to think about 30B6 depositions because they can be incredibly useful tools.
Marsi Mangan:Well, I'm glad that you provided all of that context for listeners so that they don't click out and go into Crime Junkie or some other podcast. We don't want that. How does deposing a corporate representative then differ from deposing a fact or an expert witness, which listeners may be more familiar with?
Veronica Finkelstein:Well, one major difference is that the deposition notice itself needs to look pretty different. And I'll explain what I mean when I say that. The second difference is that there's more of a back and forth with opposing counsel prior to the deposition happening than would be necessary for a fact or expert witness deposition. And then the third is that there are some limitations on what you can ask during a 30B6 deposition. So let me go through each of those one by one. So a traditional deposition notice of a fact witness or an expert witness, all you really need to do is give notice to the other side that you want to take the deposition of this individual and you have to state the time and place of the deposition the method in which it's being recorded, and the name of the person who you want to depose. So churning out a deposition notice for a fact or expert witness is kind of a straightforward matter. It doesn't require a lot of thought in advance. A 30B6 deposition notice is different. Because you're not deposing an individual and learning their personal knowledge, it's on you, the party who wants to take the deposition, to give notice to the responding organization about what topics you would like to question a representative on. So the deposition notice of a 30B6 designee or witness needs to have a list of topics. And those topics, of course, need to be covered by what would be allowed under the applicable rules of discovery. So in federal court, it would need to be topics within the scope of Rule 26. So you need to know as the person taking the deposition, what do I want to ask the organization about? And you need to boil that down to a series of topics. And then you need to check your And make sure those are all topics that would be the proper scope of questioning under discovery for the case. Then the final thing is that there's more of a back and forth prior to the deposition itself. So unlike a regular deposition notice where it's considered prior, courteous to reach out to opposing counsel and schedule it for a date and time that's mutually agreeable. The federal rules actually require a meet and confer back and forth between counsel on those topics before the deposition actually happens. So that if you have requested a topic and your opponent thinks it's outside the scope of discovery, that can be raised to the court's attention and litigated before it comes to a head during the actual questioning and a deposition. So there's a lot more legwork that you have to do before the deposition actually starts. Now let's talk a little bit about the deposition itself, because that's the third thing that I said was different. Generally, when we're talking about a fact deposition or an expert deposition, you can ask any question about any topic that is within the scope of discovery. So if you are questioning a doctor in a medical malpractice case, you can ask anything that might be relevant and within the scope of discoverable information. You don't have to flag these topics in advance and you have a considerable amount of leeway. And the reason why is you are questioning the witness based on the witness's personal knowledge. For a lay witness, that personal knowledge is based on their firsthand perception, what they saw and heard and smelled and tasted and felt. For an expert witness, it could be a combination of personal knowledge. Maybe that expert doctor examined the patient themselves. And it also could be based on hearsay. Maybe that expert doctor examined medical records from some other doctor as part of reaching the expert's conclusion. It's a little different with a 30B6 deposition because you are not asking what they saw and heard. what the person sitting across from you in the deposition room knows, you're asking what the organization knows. And so your opponent has had to educate the person who's coming to the deposition to represent the organization so that that person knows what the organization knows. And as a result, you generally are limited in your questioning during the deposition to things that are within the scope of the topics and the notice that have been agreed upon by both parties. So you can't go out in left field and ask about some new topic that you didn't think about at the time you were putting the deposition notice together. And if you do, you're probably not getting the organization's answers that you can use in the same way you could as if you had thought about that topic in advance, included it in the notice, negotiated it so it was part of the deposition, and then questioned about it. So there's really more legwork on the front end and the back end when you're talking about a 30B6 deposition.
Marsi Mangan:So how do you manage disagreement between the two parties on these specifications of what the topics to be discussed are?
Veronica Finkelstein:Well, for many, many years, 30B6 did not have as part of the rule this meet and confer requirement. That's relatively new. In fact, the most recent amendments to the federal rules of civil procedure included that addition. That's a relatively new amendment to rule 30B6. So there used to be a lot of disagreement. There used to be a lot of calling judges during depositions and instructing the representative not to give answers because it wasn't considered by one party to be part of the scope of the deposition. And as a result, a pretty robust circuit split arose where different courts in different circuits handled differently questioning that was outside the scope of the deposition notice. So in some circuits on one side of the split, that questioning was allowed. but it was not the testimony of the organization. So Marcy, if you were representing NITA and I was taking your deposition, in some circuits, if I strayed outside the notice and you answered the question, that would be an answer that Marcy gave, but NITA could disavow that answer because it wasn't in the notice and they hadn't prepared you to answer it. In other jurisdictions, there simply was no questioning allowed outside the scope of the notice, and that was essentially considered verboten. It was outside the scope of what was allowed for the deposition. And that, frankly, caused a lot of problems because then people would have to try to bring the deponent back and have a second 30B6 deposition. And that caused a lot of trouble. And then in some circuits, the answer was just part of the organization's answer. So the burden was on the organization to think 10 steps ahead and figure out any possible topic that could be questioned on and educate their designee, even on topics that were outside the scope of the notice, just on the off chance that they were brought up during the deposition to make sure that Marcy didn't say something that wasn't Nita's position on a particular topic. So the meet and confer requirement helps to deal with the problems on all the sides of the circuit split. Because now, you know, based on this meet and confer between you and opposing counsel, If there are any topics that counsel objects to, in which case you can litigate that before the judge prior to going into the deposition. And both attorneys understand the ground rules. They understand what the topics are and they're in agreement that it is just these topics and no others. And if your opponent feels that you strayed beyond those topics, they can then litigate that issue or instruct the witness not to answer during the deposition and then litigate the issue before the judge. So the meet and confer requirement has some out a lot of these problems. But I suppose you could always encounter obstreperous opposing counsel that is unfamiliar with 30B6 or takes a particularly strange interpretation of the topics that you've noticed. But hopefully you would identify that earlier because of the meet and confer. So you could deal with that prior to the deposition starting rather than having to deal with it during the deposition.
Marsi Mangan:I see. It sounds a little more complicated than the usual process. progression of a deposition. So are there any secrets that we should know about how to effectively draft specifications and figure out what the topics are?
Veronica Finkelstein:So I like to think about 30B6 topics a little bit like I think about requests for admission. What are the things that I would like to take off the table that are relatively straightforward that I just need somebody to tell me yes or no, is this true? Those are great topics for a 30B6 deposition What is the chain of command at the organization? Who is responsible for this policy? Which version of the policy was the one that was in effect at the time that the accident happened? You can craft topics around these sort of discrete areas. And that's really useful because if that is your opponent's position, if you're suing the organization, or that's the third party organization's position, you kind of affix it in a way where you can now build your litigation strategy around it And doing that in the 30B6 deposition allows you to do it during the discovery phase and have that known and identified before you go into dispositive motions or start preparing for trial. So that's kind of one category of topics that I might think about. Another category of topics that I think about are positions that the organization might have that haven't been boiled down into writing. So there might be a formal position on how often emails are purged Or how often video surveillance tapes are overwritten. But there also might be unspoken policies on those topics or any other topics. How do you decide how many people you're going to interview when you're hiring? That might be an unspoken policy. And so things that are not boiled down in writing are great to ask about during a 30B6 deposition. So I would think about all of the ways that an organization might function and all of the things that you have found in terms of gaps in the paper discovery. that you might want to ask about. That's another great series of questions that you might want for a 30B6 deposition. So think broadly. Think about everything that you've gotten in paper discovery, in your interrogatories and document requests. Look a couple steps ahead at where you see yourself wanting to be when it comes time for dispositive motions or trial and ask about the things that will help get you there. And then ask about all of the cracks in the facade of what the organization has presented to you in paper discovery? What might be reading between the lines things that you want to learn about?
Marsi Mangan:So what is the importance of, or maybe I should say the benefit to plaintiffs or defendants in taking 30B6 depositions?
Veronica Finkelstein:30B6 depositions are incredibly powerful because you are getting testimony that binds that organization. And when you're the plaintiff who's suing the organization, that's really powerful. Those statements are admissible. They're statements of a party opponent or admissions of a party opponent under federal rule of evidence 801. So they're admissible. You don't have to worry about how you're going to get them in around the hearsay rule. And they're also admissible and can be considered by the court at the summary judgment stage for the same reason. So it's super powerful when you're actually suing the organization. The flip side of the coin, when you're the organization, it can be really great to have identified before trial the person who can be your mouthpiece and representative on particular topics. If you have an employment discrimination case and you need somebody to explain how human resources does the hiring, you'd rather figure out who the best person who can put the best foot forward on behalf of the organization is during discovery and test that person out during the 30B6 deposition than to be scrambling before trial to try to figure out who from HR is the right person. And that's another benefit of Rule 30B6 that we didn't talk about. It's the organization that's responding to the notice that gets to choose who the designee or designees are. So if I think Marcy is the most eloquent and well-spoken person at NITA, I can choose her as my designee, even if she knows nothing about the topic, because I can and educate her as to what Nita's position and corporate knowledge is, and then I know I can put my best foot forward. Now, if I didn't put her up as my 30B6 designee and all of a sudden I notice her at trial, as a witness, maybe I'm gonna get some pushback that she doesn't have any personal knowledge and she shouldn't be testifying, but I've kind of fronted and preempted that issue by choosing her as a 30B6 designee. And I think I'm gonna feel a lot less pushback if I later wanna have her testify at trial. And then the third reason to think about 30B6 depositions is sometimes when you're not suing the organization or the organization is not a party, they're just a third party that has information, You don't want to drag them into trial to testify live. That car accident case between the two drivers, I don't know if you're going to get a representative from the city who's going to be really excited to come down and spend a full day sitting in the back of a courtroom waiting to testify. And who knows who that person will be and whether they're going to be any good live. They're kind of outside your control. And if you've gotten the 30B6 deposition and you have the recorded testimony, which could be recorded in a written transcript, but could also be a video deposition. deposition, you've got the possibility of trying to get the testimony in in the form of the transcript. And that might be advantageous and more beneficial than trying to drag somebody in to testify at trial. Look, if we're talking about a big corporation, Google, Facebook, something like that, I don't know that you're going to get them to come and testify at all in your little rinky dink trial in some county. But you might be able to do an online 30B6 deposition and capture their testimony. And then maybe that'll give give you an option to get the testimony in later.
Marsi Mangan:Right. That makes a lot of sense. I want to circle back to something that you just said about, for example, me being chosen as the designated... I choose you. Oh, thank you. Because allegedly I'm well-spoken. Are there other qualities then that would make for a desirable corporate representative?
Veronica Finkelstein:So this is one of my big tips and tricks. There's an awfully... big temptation when you're representing an organization to choose as the 30B6 designee somebody who already has personal knowledge about the case. And I understand where that temptation comes from. It's a big lift to put forward a 30B6 designee. You representing the organization are warranting essentially that you have educated this person and you have them fully aware of the organization's positions on whatever topics are in the notice. And that can be a big task. Getting somebody up to speed on every policy that an organization has about hiring or cleaning the floors or document retention, that can be a big ask. And that's a lot of work. And so the temptation is to pick somebody who already knows about those policies or who already knows about the underlying dispute in the litigation. The problem with somebody who already knows about the policies or already knows about the underlying dispute is they're not a clean slate. Somebody who already knows about the policies may be wrong, may know incorrect information, may have been doing things in a way that the organization did not want them done, and may have a difficult time unlearning what they already know. If you start with a clean slate, you can pick the most well-spoken person in the organization or even outside the organization. Doesn't have to be a current employee or a former employee. You can hire a spokesperson if you want, as long as you've educated them. And so you pick the person who's going to present the best.
Marsi Mangan:Okay. Well, that's all very interesting. You've talked a lot about what the pluses are for choosing a corporate witness or a corporate representative, but are there some minuses to picking a designee who might also be an individual fact witness?
Veronica Finkelstein:I don't, as a practice, like to pick a designee who's also a fact witness, and I'll tell you why. First of all, you have all of the same issues in picking a designee who already has some underlying information. They could be wrong. I mean, what they think they know could be based on secondhand knowledge, could be incorrect and you have to uneducate that for purposes of them acting as the 30B6 designee. But then the problem is they're also gonna get deposed as a fact witness. And as a fact witness, they have to testify based on their personal knowledge. So you really increase the risk that they're gonna be deposed twice, once as a 30B6 and once as a fact witness, and that they're gonna give inconsistent testimony. And while it's true that their testimony as a 30B6 was not on their own behalf, it was on behalf of the organization, Good luck explaining that to a jury when opposing counsel holds up two transcripts or two excerpts of a transcript. And in one transcript, the witness said the light was red, speaking on their own capacity. And in the other transcript, the witness says the light was green, speaking on behalf of the organization. That's just a hard sort of nut to crack in front of a jury trying to explain that one of these pieces of testimony was not from Marcy, it was really from Nita. That's just a hard thing to try to explain. The second reason that I wouldn't do this is that I think it's really important to keep the 30B6 deposition separate from all fact witness depositions. And the difficulty, if you put Marcy up as both Nita's designee and also a fact witness, what do you think opposing counsel is going to do? They're going to say, great. Let's bring Marcy in on Wednesday. In the morning, she'll be a fact witness. And in the afternoon, she'll be the designee or vice versa. And now I've got to educate Marcy to know some things in the afternoon that she didn't know in the morning and to keep all of this information straight. And opposing counsel is going to be very tempted to cross the line and ask about fact witness information during the 30B6 deposition. And how can I really fault opposing counsel? They're looking at the same person that they just finished questioning this morning who was speaking on the So I personally think it muddies the waters a lot. There's no prohibition on it. It's done all the time. But I think your best bet for a 30B6 designee is pick somebody who does not already have a lot of information, who is not going to be a fact witness in the case, somebody who is going to be well-spoken, somebody who is trainable. somebody who has the time and energy and intellectual capacity to become educated, and somebody who's going to be good to work with. Let me put it this way. This is one of the few times in litigation when you get to pick your witness. So pick somebody good. Don't pick somebody who's the CEO of the company who doesn't have time to get educated. Don't pick somebody in HR who's been following the policies wrong for the last 20 years and you're never going to unteach. Pick somebody who is going to be a really good mouthpiece on behalf of the company who you can educate properly.
Marsi Mangan:So how do you prepare for taking a 30B6 witness deposition? I want to break this down into, in whichever order you prefer, the difference in how corporate counsel prepares and how the deposing attorney prepares.
Veronica Finkelstein:So when I'm putting the designee up, so when I represent the organization or the corporation, my first step is to take that deposition notice and all of the topics there, and I start creating a binder. I've got a tab for every single topic, and I am going around the corporation or the organization asking, where are the documents that are the company's position on this particular topic? Who do I need to speak to to understand the company's position on that topic? And I'm taking notes when I'm doing those interviews so that I feel that I have truly amassed in one single location in this binder or binders all of the corporation's positions or information on that particular topic. And that's a big lift. Once I have that done, then I'm going to start identifying my designee. And once I have my designee identified, I need to schedule a series of sessions with the designee to go through this binder, explain the process of a 30B6 deposition, explain what's in the binder. And then I need to give the designee time to take the binder, study the binder, the material, learn the information. And then I probably need a series of sessions to get the deponent ready for the deposition. And of course, I'll have a session where I do all of the things I would do for a factor expert witness prep, tell them about where to show up and the other logistics, explain who's going to be in the room, talk about the ground rules, all of those usual things. But I also probably need some sessions where I practice the difference between a 30B6 deposition and a regular deposition so that the designee gets used to the idea of only answering questions within the scope of the notice and understands what happens when I object to a question that's outside the scope of the notice. And then I need some deposition sessions on the substance, because unlike Marcy, who is a fact witness, whose memory is what it is, and I can only do so much if she truthfully says that the deposition she doesn't remember. I can't have my corporate designee say, I don't remember. In some jurisdictions, that's viewed as discovery noncompliance. It's kind of tantamount to being the recipient of a deposition notice and not showing up with the deponent. And so I can't have my designee saying I don't know on any topic that was properly part of the notice. And I also make discoverable anything that I have brought to the deposition to educate the designee with. And so things like my notes of interviews with other people at the organization or corporation, I don't want that coming in the notebook or in the binder to the deposition. I need to get that So there's a lot more prep on the front end. It requires a significant amount of time to get a designee properly prepared for a 30B6 deposition. When I'm on the other side preparing to take the 30B6 deposition, I'm organizing my outline a little differently than I might for a fact witness deposition. So for a fact witness or even expert witness deposition, you often warm up slowly by asking background questions about the person's qualifications or education, and then you kind of wind into what is often a chronological exploration of issues. Some people People like to depose topically, I often do, but an order sort of comes to the forefront based on the issues in the case. But a designee deposition pursuant to 30B6 is not a deposition about all of the underlying substance in the case. It's not really a deposition about chronology. It's a deposition about discrete topics. And I don't want to deal with a bunch of objections during the deposition that I'm outside the scope of the notice. And I don't want to have to litigate a discovery dispute about whether or not some of my questions strayed too far outside those topics. So my deposition outline for a 30B6 deposition is organized topically. I go through each topic that's in the notice, and I funnel and ask my questions the same way, thoroughly exploring that specific topic. And I bring along with me as exhibits any document that I might want to ask about that's specific to that topic, and I organize my deposition exhibits by topic. And I just go topic by topic. I generally go in the order of the notice. You're not required to, but that makes it easier for opposing counsel and the judge to follow along if there's some sort of dispute. I consider every one of those notice topics to be a funnel. And I funnel completely on that topic. And that way, there can't be any argument during the deposition or later that I was asking for something that was outside the scope of what I had noticed. And so it's just a different thought process in terms of getting ready for the deposition. One thing that you really want to make sure that you're doing during a 30B6 deposition when you're the one asking questions is making sure that the witness has been properly prepared, that they're giving you the company or the organization's complete answers to any of these topics. So at the bottom of every funnel, I'm always asking, is there anything further about this topic that you haven't told me that you would need to in order for me to have your full, complete and accurate understanding of this topic? I ask that question at the bottom of every funnel, no matter the type of deposition I'm taking. But that's really important in a 30B6 deposition, because unlike a fact witness or an expert witness, a designee is required to be educated on the organization's position. And so they are supposed to be ready to give you full, complete, and accurate answers. They don't get to say, I don't remember, or I don't know, or I didn't prepare to answer that topic, as long as it's a properly noticed topic.
Marsi Mangan:I'm curious to know more about the relationship between designees and counsel. So I'll start by asking, whether in-house counsel represents designees or do the organizations typically bring in outside counsel?
Veronica Finkelstein:So this is a great question, and I'm going to give you a partial answer, but I'm also going to refer all of our listeners to the applicable rules of professional conduct where they practice, because the question here is really who represents the organization. For the most part, the designee should be represented by counsel for the organization. After all, when Marcy is speaking on behalf half of NITA, she's not speaking as herself. She's speaking as NITA. And so if NITA has counsel, counsel would represent Marcy when she's the 30B6 designee. So it shouldn't be too complicated. But where it starts to get complicated is if Marcy is the 30B6 designee and also a fact witness. Again, I advise against this, but it happens all the time. Then we have a much more prickly, thorny, difficult question as to whether or not corporate counsel represents Marcy is an individual. And that can be awfully confusing for poor Marcy, who on one hand is being told by Nita, you've got to get educated to know all these topics and speak on our behalf, and then is being told a few minutes later, oh, but when they question you about what you did and you know, you might want to get your own attorney. And the question as to whether or not an employee at a company is represented by corporate counsel, that's a more complicated question that's really going to be answered by the applicable rules of professional conduct and the way they've been interpreted in your individual jurisdiction, but it does muddy the waters when on one hand you're telling somebody, oh, we are totally covering you for this deposition, but this other deposition, I don't know. But the short answer to the question is for the 30B6 deposition, it's really the organization being deposed. And so if the organization has counsel, that counsel would represent the designee during the deposition.
Marsi Mangan:Okay. So Is the relationship between counsel and the designee one of actual legal representation, or is counsel just there to keep the corporate representative kind of coloring within the lines, so to speak?
Veronica Finkelstein:That's a great question. So if the corporation is the entity that is being sued as a litigant, so if this is a big corporation that's being sued in a slip and fall, then corporate counsel is actually defending the deposition. They're making objections. They're representing the corporation. They are there in the room being the ones to defend. So in most circumstances, corporate counsel or whatever outside counsel they've hired would be the ones defending the deposition. But you don't do sometimes run into weird situations. Let's go back to that car accident case where the two drivers sue each other. And we need a representative of the city to tell us what's the interval for this traffic light and was it functioning properly on the day of the accident? Pretty straightforward topic, but maybe a really important one. If the traffic light was malfunctioning, maybe neither driver was at fault for running the red light. And that's the kind of situation where it's the city and the city's council that would represent the third b6 designee but maybe they're not interested in participating they don't have a lot of skin in the game so they just sort of send the designee and now we're in a weird situation where I represent one driver and you represent another and neither one of us represent the city and we're both interested in learning the city's answer to this question and so you will often find yourselves in situations where a council in the room is acting like they are defending the deposition even though they are not really defending the organization that is speaking in the deposition. It certainly happens. I don't suggest that organizations send designees off into the wild without representation to be questioned at depositions. That seems like a dangerous thing to do, but it happens and it's a little bit weird.
Marsi Mangan:That sounds very weird and very complicated. I want to go back to something that you mentioned earlier about jerks. Um, Longtime listeners know that a couple of months ago, I spoke with Whitney Unteed about dealing with jerks at deposition. So I am curious to know what the effect of a corporate representative is when they are the jerk rather than counsel. Is there a consequence to being a jerk on them or is it on the organization or is it both?
Veronica Finkelstein:Well, the one benefit of a 30B6 deposition is once you've properly noticed it and you've properly met and confer and the topics are what the topics are, the organization has to send a designee to give the organization's position on those topics. And if the deponent is obstreperous or a jerk or getting in the way or not answering questions or saying they don't know or saying they don't remember, well, Unlike a fact witness deposition where you might be backed into a corner and have a difficult time doing anything with those non-responsive answers, there can be sanctions against a corporation or organization that does not properly educate and provide a designee for a 30B6 deposition. So it's actually shooting the organization in the foot to send a designee who's going to be a jerk Unlike a factor expert witness situation where, although I don't think it's a good litigation strategy, it certainly can be a litigation strategy to have witnesses who make life difficult for opposing counsel during a deposition. The consequences would certainly flow to the organization itself. I think there might be some circumstances where the individual designee perhaps could have some skin in the game. I mean, like, look, if the designee starts a fistfight, I think that's going to blow back on them as an individual. But for the most part, these sorts of non-responsive answers, they're going to fall on the organization because it's the organization that received the notice and had the legal obligation to present a designee to respond properly to that notice. And so there's no real benefit to sending a designee to a deposition who's going to be a jerk. So it sounds like it just doesn't happen that often. There's no excuse for it to happen. It doesn't happen that often, but you would be surprised how often a designee comes unprepared. And that's a problem too, because the reason that you're taking the 30B6 deposition is that there's information that you really need in discovery. But the rule is well balanced, in my opinion, because if the corporation does present a non-educated designee, you've got an avenue to litigate that very clearly before the court, and the court can issue a variety of sanctions, including, but not limited to, adverse inferences in the case. So if there's a topic that the designee should have been educated on and was not educated on, perhaps the organization will be prevented from presenting any evidence on that topic at trial. So in my opinion, having litigated under Rule 30b6, it really does do a nice job at striking a balance of providing notice to the organization that has to provide a designee and give answers, and also creating a pretty good avenue for the party who's seeking information to get that information and to litigate it if it's not properly turned over. You have at your disposal all of the tools that you would have for other discovery obstruction. So you can file a motion to compel, you can file a motion for sanctions, you can go to the court and get relief.
Marsi Mangan:When you are serving as the deposing counsel, what concerns might you have when questioning a 30B6 witness? What are things that you should be mindful of?
Veronica Finkelstein:I'm always mindful of staying within the notice. And I think organizing my outline by topic helps a lot. If I didn't organize that way, I'd be very tempted to ask follow-up questions that are sincere, genuine follow-up questions that are not meaning to stray outside the scope, but that might stray outside the scope. The other thing that I'm very mindful of is when I'm drafting the notice, I want to cast the right size net with the right size holes. So if I have a notice with too many topics that's too broad, I'm going to be outside the scope of Rule 26. I'm not going to get buy-in from opposing counsel. And when the court reviews that notice, it's going to look like I'm overreaching. But I also can't be too narrow because if I'm too narrow, I'm going to get into the deposition and realize that there were other important topics that I should have asked about that I really shouldn't be asking about because they were not included in my notice. So I'm kind of striking for baby bears porridge in that notice, not too hot, not too cold, just right. And sometimes that's tricky. So the third thing that I'd say I'm thinking about with a 30B6 is when is the right time to take this deposition? Because how am I going to know when I've got baby bears porridge? And my suggestion is, like many depositions, you want to do a lot of paper discovery first, but you also want to sequence the 30B6 deposition. in my opinion, after you have taken some fact depositions and you've gotten out of your system some of those fact-specific questions that might guide your decision as to what topics to include in the 30b-6 notice. So you're certainly able, under the rules, to make the very first deposition in the case the 30b-6. But my suggestion to you is that you don't, that you do as much paper discovery, you gather as much information as you can, and you take a few fact depositions and you make sure that you understand what you need to learn from the organization, and then you're in a better position to draft the notice, and you're probably less tempted to stray outside those topics during the deposition, regardless of how you structure your outline.
Marsi Mangan:Are there ever times when an interrogatory would be preferable to taking a deposition?
Veronica Finkelstein:Certainly. Sometimes what I want is a written answer to a question. There are straightforward questions where it's unlikely that any witness is going to really remember and be able to rattle off this long list of dates, for example, or full names of people who were in a meeting. And I just want to get it in writing. That might be the better way to do it. But remember that interrogatories are also mediated by counsel in a way that depositions are not. So it's not the fact witness who's writing the answers to interrogatories. It's counsel who's gathering information from the fact witness and then writing those answers. So there are some topics that I think are better for a deposition, some for paper discovery, and I pick and choose the tool that I think is going to be best for getting me the answers I need to tee my case up to end where I'm envisioning it will end at summary judgment or trial.
Marsi Mangan:There are a couple of consequential cases that involve the scope and depth of deposing corporate representatives. So I would like to get your feedback and thoughts on what we should know about them. The first case is called QBE Insurance Corporation v. Jorda Enterprises, Inc. Why is QBE so important?
Veronica Finkelstein:So QBE is an important... case when you're talking about 30B6 depositions because it's the case that really gave us the blueprint for how you litigate issues that might come up during a 30B6 deposition. So what happens if there's a designee who shows up but they can't answer questions on one of the topics? What happens if the designee shows up and gives answers that are not the answers that the organization is willing to stand by if the organization attempts to backtrack off those answers? And so QBE is a great case because it gives us the blueprint of how to litigate those issues, how to deal with it through motion practice, whether it should be a motion to compel or a motion for sanctions. And it's a really detailed explanation in the decision about how 30B6 is supposed to function. So it gives us a lot of good fodder. If we have any kind of problem during a deposition under 30B6, we can go back to QBE and see how did the court characterize rule 30B6? Is this something that I ought to litigate? And if I ought to litigate this problem, what would be the appropriate motion to use to litigate?
Marsi Mangan:And then the second case is Marker, the Union Fidelity Life Insurance Company. What do we need to know about Marker?
Veronica Finkelstein:Markers are really useful case as well, because it delves into a lot of what we talked about earlier, these questions about what do exactly we do with the testimony that we get in a 30B6? Is it binding as an admission by the company? What if it was outside the scope of the notice topics? What do we do with the testimony then? And so this is a really good exploration of how 30B6 functions and what the role of the designee is that can help, again, inform if you have some sort of issue that you have to litigate under Rule 30b6, what does it mean when certain things have happened during the 30b6 deposition? Now, of course, I would caution our listeners to go find cases that are binding in their own jurisdiction. But these two cases, if you've never litigated an issue relating to 30b6 before, would be a great place to start just to understand how the courts think about discovery disputes that arise out of Rule 30b6.
Marsi Mangan:Well, that's a great suggestion. And to make it easy on the listeners, I'm going to go ahead and paste the links for these two cases in the show notes. So if you're curious, please be sure to check that out. We have actually come to pretty much the end of the substantive part of this interview, and it's been absolutely fantastic. But I wanted to give you a moment to talk about the deposition course that you are going to be directing in Philadelphia in a few months. What do you have to say about that?
Veronica Finkelstein:Well, I'm hoping our listeners might want to come to beautiful Philadelphia and explore our great vibrant downtown and learn about deposition tactics from myself and my co-director, JC Lohr from Rutgers Law School. We are running the program in Center City. It's a great location. We've done it there for a few years. We're going to teach you Soup to nuts, everything you need to know about taking depositions and give you all of the tools that you're going to want to put in your tool belt so that you can be successful in the future when you're questioning witnesses. One thing that's kind of different about our program that listeners might find appealing is you can get two ethics CLE credits because we have two full sessions and they're fun sessions on the ethics of depositions. We've got one that's full of movies and television clips where we work through how the model rules of perfection would suggest difficult situations that could arise in depositions be handled. It's a lot of fun. I promise you, I've got some clips you haven't seen before. I have quite an array of movie and television clips that I use when I teach. So that's one hour of ethics. And then we do an hour of ethics vignettes where you get the opportunity to work through and troubleshoot some difficult ethical issues that could arise during a deposition. So you actually get to role play it with one of the faculty members. So I would really encourage anybody who wants to improve their deposition skills to think about our program. It's in person. It's a lot of fun. Philadelphia is a great city and we would love to see you there.
Marsi Mangan:And if you happen to practice in the tri-state area, Pennsylvania and New York both have that ethics CLE program. requirement, I think, each year. So this is a great way to get it out of the way for you before the year even really kicks off.
Veronica Finkelstein:Yes, I'm Pennsylvania Bard, and I check the box every year with these two hours of ethics credits. And I promise you, it is not just somebody droning on and on in front of the room. You're going to enjoy these movie clips and playing through the vignettes.
Marsi Mangan:Well, since you've mentioned movies, that is the perfect entree into my usual sign-off question. I know that you are a huge film buff. What movies have have you seen lately?
Veronica Finkelstein:I can't get Eddington out of my mind. or not masking guidelines are binding, but it's also got some criminal law issues wrapped in there. And I actually recently started doing a monthly series for Law360 where I take a movie that I saw in the theater and I talk about legal lessons that you can learn from it. And I can't get Eddington out of my head. So I think I'm going to have to talk about whether or not social media postings could be admissible in a criminal case against someone because that comes up during Eddington as well. So I'm going to have to talk about that. Last time we talked, I think I made a recommendation for a movie that I thought was terrific. This time, I'm just going to say, Eddington will give you a lot of food for thought and leave it at that.
Marsi Mangan:Well, the director's the same guy who did Midsommar, is he not?
Veronica Finkelstein:Midsommar and Hereditary and Bo is Afraid, yes.
Marsi Mangan:Yeah, not uplifting stuff for sure. So we're recording this during the summer, which is the traditional vacation time, even though this is airing in September. What is your dream vacation right now?
Veronica Finkelstein:You want to know the truth? The truth is my dream vacation is I stay home. I have nothing to do. I lie on the couch and there's always a cat lying on my feet. That is my dream vacation. But if you push me and say that I have to leave the house, which I'd almost always rather not do, I would say that my dream vacation for the summer is Austria and Germany. It's a beautiful place to go during the summer. Great hiking. I know a lot of people think of parts of Austria as being more of a Christmas vacation, skiing and the holiday markets. But honestly, there are some beautiful Well, thank you so much, Veronica. Yeah, my pleasure.
Marsi Mangan:As always, thank you so much for listening to today's episode, and maybe even re-listening because it's pretty packed with insider intel. If you would like to work with Veronica Finkelstein to enhance your deposition skills, do check out the link for the Philadelphia program in the show notes. She's also teaching at our Women in Trial program in November, which we are holding in Seattle, so the link for that one is listed as well. Please tune in again next month when Professor Bracha from Temple University Beasley School of Law joins me to chat about different generations of lawyers working together in the modern law office. It's a well-timed episode for this year's class of law grads who are onboarding this fall. Until then, we at NITA wish you the very best of luck in your depositions, motions, and trials. Happy lawyering! May the Record Reflect is a NITA Studio 71 production. NITA. We are advocacy enhanced, mentorship reimagined. Welcome to the community.