November 22, 2011

Online Feature

How limitations on number and duration apply

to corporate depositions
By Steven P. Caley
Various commentators have addressed
peculiarities and potential pitfalls of
depositions of corporations or other
organizations under Rule 30(b)(6) of the
Federal Rules of Civil Procedure. See,
e.g., Steven P. Caley, Looking at Rule
30, NLJ,, Sept. 11, 2000, at A14. Little
attention has been devoted, however,
to the interplay between the Rule 30(b)
(6) deposition and other subsections of
Rule 30 presumptively limiting the
number of depositions to 10 per side, and
the duration of each deposition to seven
hours. Rule 30(a)(2)(A)(1) and (d)(1).
Consistent with the other complexities of a
30(b)(6) deposition, a number of questions
are raised, not all of which have obvious
or definitive answers.
When a corporate deponent designates
one witness on all topics of a 30(b)(6)
notice, and the witness is examined only
on those topics, it is obvious that only
one deposition has been taken. But what
if, as frequently happens, the corporation
designates multiple individuals to testify
on different topics? Fortunately, this issue
is explicitly addressed by the Advisory
Committee Note to the 1993 amendment
to Rule 30 that created the presumptive
limit of 10 depositions per side, and the
answer is clear: A deposition under Rule
30(b)(6) should, for purposes of [the 10
deposition] limit, be treated as a single
deposition even though more than one
person may be designated to testify.
Committee Note, 146 F.R.D. 401 at 662.
The situation is less clear-cut, however,
when a party that has already taken a
30(b)(6) deposition, serves a second 30(b)
(6) notice on the same entity. Most of the

Steven P. Caley
cases involving a second 30(b)(6) notice
do not address directly the question of
how many depositions have been noticed
for purposes of the presumptive limit on
the number of depositions. Typically they
have analyzed whether a second 30(b)
(6) deposition would be a deposition
of one alreadydeposed in the case,
requiring leave of court under Rule 30(a)
(2)(A)(ii). Most courts have answered
this question in the affirmative. See e.g.,
Ameristar Jet Charter Inc. v. Signal Composites
Inc., 244 F.3d 189 (1st Cir. 2001); Terry v.
Unified Government of Wyandotte Co., 2011
WL 795816, at *3 (D. Kan. 2011); State
Farm Mutual Automobile Insurance Co. v.
New Horizon Inc., 254 F.R.D. 227 (E.D. Pa.
2008); contra, Quality Aero Technology Inc. v.
Telemetrie Elektronik GMBH, 212 F.R.D. 313,
319 (E.D.N.C. 2002).
While not directly on point, the
reasoning of these cases that the second
30(b)(6) is a new deposition lends
support to the view that if a party notices
and takes two 30(b)(6) depositions, two
depositions have been taken for purposes
of the 10 deposition limit. However, one

court that explicitly considered the issue

of how many depositions were taken,
held that two, separately noticed, 30(b)
(6) depositions taken on the same day on
different topics should count as only one
deposition. Loops LLC v. Phoenix Trading Inc.,
2010 WL 786030 (W.D. Wash. 2010).
Given the lack of certainty in the case
law, the safer practice is to include all
examination topics in one 30(b)(6) notice.
Otherwise, a litigant may require court
approval for a second notice, and, if leave
is granted, may be held to have taken two
separate depositions.
When a witness is examined as a
corporate designee on certain topics and
is separately noticed and examined as an
individual, then the individual examination
clearly would count as a separate
deposition, in addition to the one 30(b)
(6) deposition. However, most courts hold
that a witness not noticed individually, and
produced solely as a 30(b)(6) designee,
may, nonetheless, be examined on matters
beyond the designated topics. See e.g.,
King v. Pratt & Whitney, 161 F.R.D. 475
(S.D. Fla. 1995); Cabot Corp. v. Yamulla
Enterprises Inc., 194 F.R.D. 499 (M.D. Pa.
2000); contra, Paparelli v. Prudential Ins. Co.
of America, 108 F.R.D. 727 (D. Mass. 1985).
When that occurs, how many depositions
have been taken?
Unfortunately, there appears to be only
one reported decision explicitly addressing
this issue, and it does not provide a clear
answer. In Detoy v. City and County of San
Francisco, 196 F.R.D. 362 (N.D. Calif.
2000), the court held that Rule 30(b)
(6) does not limit what can be asked of
a corporate designee, but on the issue of
how many depositions should be counted,
the decision is confusing and arguably

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contradictory. On the one hand, it states

that when a designee is examined on
matters other than designated topics, the
general deposition rules govern, 196
F.R.D. at 366, and the witness is testifying
as an individual. 196 F.R.D. at 367.
Thus, it recognizes that such a procedure
constitutes both a 30(b)(6) deposition and
an individual deposition. On the other
hand, the decision states, Nor should
one witness count as two depositions for
purposes of thelimit on the number of
depositions to be taken by each party.
Id. Based on this, an aggressive litigant
might argue that the Detoy court meant
that because the witness was produced
solely as corporate designee in response to
a 30(b)(6) notice, the examiner took only
one deposition, irrespective of the scope of
the examination.
However, accepting that position would
undermine and, in some cases, nullify
entirely, Rule 30s limitation on the number of depositions. It would also penalize
litigants who make a good faith effort to
put forward the most knowledgeable witnesses on the noticed topics, and encourage tactical gamesmanship. Specifically, if
an examining party were able to question
most of the other sides key witnesses on
all relevant matters, while using only one
of its allotted depositions, the noticed corporation would have strong incentive to
produce, instead, a single, less knowledgeable witness to testify on all topics. There
may be some risk to the corporation in
doing so, given that the testimony of the
possibly insufficient designee will bind the
corporation. However, that risk is likely to
be minimal, given that most courts hold
that the testimony binds the corporation
only in the sense that the testimony is
admissible against the corporation; not
that the testimony constitutes a judicial
admission that formally and finally decides
an issue. W.R. Grace & Co. v. Viskase Corp.,
1991 WL 211647, at *2 (N.D. Ill. 1991).
But see Ierardi v. Lorillard Inc., 1991 WL
158911 at *3 (E.D. Pa. 1991).
Thus, whatever the Detoy court may
have intended, when a 30(b)(6) designee
is also questioned on matters beyond
the scope of her designated topics, the
deposition should be counted as an
individual deposition, in addition to the
30(b)(6) deposition. This common sense
approach comports with the language and

November 22, 2011

purposes of Rule 30s limitation on the

number of depositions and promotes a
rational and efficient discovery process.

DEPOSITION DURATION
Rule 30(d)(2) provides generally, that
[u]nless otherwise authorized by the court
or stipulated by the parties, a deposition
is limited to one day of seven hours.
With respect to 30(b)(6) depositions, the
Advisory Committee Note to the 2000
Amendment to Rule 30 states that, [f]
or purposes of this durational limit, the
deposition of each person designated
under Rule 30(b)(6) should be considered
a separate deposition. Committee Note,
192 F.R.D. 340 at 395. Thus, absent party
agreement or court order to the contrary,
each 30(b)(6) designee potentially may be
examined for up to seven hours.
Of course, persons noticed as
individuals are frequently designated 30(b)
(6) witnesses as well, which leads to the
question of how long such a witness may
be examined in total. Courts considering
this issue have found that the depositions
of an individual who is noticed as an
individual witness pursuant to Fed. R.
Civ. P. 30(b)(1) and who is also produced
as a corporate representative pursuant to
Fed. R. Civ. P. 30(b)(6) [is] presumptively
subject to independent seven-hour time
limits. Wesley v. Gates, 2009 WL 1955997,
at *1 (N.D. Calif. 2009); citing Sabre v. First
Dominion Capital LLC, 2001 WL 1590544,
at *1-*2 (S.D.N.Y. 2001).
This does not mean, however, that
an inquiring party has carte blanche
to depose a witness for seven hours as
an individual and seven hours as a 30(b)
(6) witness. Rather, the Court is called
upon in each case to make a fact intensive
inquiry as to whether a particular witness
should or should not be required to submit
to questioning which exceeds seven hours
in length. Forte Capital Partners LLC v.
Harris Cramer LLP, 2008 WL 4924724, at
*3 (N.D. Calif. 2008).
The possibility that a corporate executive could be deposed for 14 hours, or
more (if so ordered by the court), causes
many corporate litigants to seek to limit
examination time. Some parties have
sought to do so by claiming to adopt as
the corporations 30(b)(6) testimony, the
corporate designees prior deposition tes-

timony as an individual. Sabre suggested

that this may be a viable option, at least
in the case of a closely held corporation.
Most courts, however, have rejected this
approach, and held that the fact that a
companys employee was deposed under
Rule 30(b)(1) does not insulate the company from producing the same, or another,
individual as a corporate representative at
a (30)(b)(6) deposition. See Munich Reins.
America Inc. v. America National Ins. Co.,
2011 WL 1466369, at *26 (D.N.J. 2011);
New Jersey v. Sprint Corp., 2010 WL 610671,
at n.13 (D. Kan. 2010); Provide Commerce
Inc. v. Preferred Commerce Inc., 2008 WL
360588 (S.D. Fla. 2008).
Steven P. Caley is a partner in the litigation
department of New Yorks Kelley Drye
& Warren. His practice includes complex
commercial, false advertising and products
liability litigation. Associate Ila Kapoor assisted
in the preparation of this article.

Reprinted with permission from the November 22, 2011 edition of

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