E-Discovery has raised role, importance of ‘30(b)(6)’ organizational witnesses

What happens when a litigant wants to determine the facts about an organization’s policies and procedures concerning electronically stored information, e-discovery and information technology? US Federal Rule of Civil Procedure 30(b)(6) provides a convenient tool to obtain testimony about these and other organizational practices and the vehicle by which an organization takes a position on relevant, sometimes controversial issues.

Rule 30 (b)(6) allows a party to "name as the deponent a public or private" organization "and must describe with reasonable particularity the matters for examination." The organization is required to designate one of its employees or "other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify." The persons who are designated "must testify about information known or reasonably available to the organization."

E-discovery fortifies role of "30(b)(6) witnesses"
E-discovery has given a whole new life to this investigative and discovery tool for the power that it gives to examine the policies and procedures of an organization concerning the electronically stored information, or ESI, that its units and employees originate, store, delete, move and produce. It is not uncommon for entire seminars and conference panels to be devoted exclusively to selecting, preparing, interrogating and cross-examining what are now commonly known as "30(b)(6) witnesses."

"In the old days when you had litigation, you’d depose the person most knowledgeable about the company. That’s what the 30(b)(6) person is all about, except here [in the e-discovery context] it’s being most knowledgeable about the request for production of documents. They are going to want to talk to the person who knows about e-discovery practices," said attorney Albert Barsocchini, Corporate Counsel - Litigation, E-discovery, Data Privacy & Protection and Digital Investigations, in San Francisco.

"Rule 30(b)(6) witnesses are there to tell the corporation’s story and defend it. It’s important to have a witness you can buy into and believe in and trust," he said.

In general, a 30(b)(6) witness can be called upon to testify about the organization’s information technology structure, which Barsocchini said is akin to creating a menu of the IT systems of the organization, and about the ESI preservation and collection practices in the case.

Scope of testimony must be prescribed
The notice of deposition or subpoena must specify whether ESI retention policies will be explored in the deposition. Failure to do so precludes it from being raised in the deposition.

The scope of Rule 30(b)(6) deposition is set in the notice of deposition. Where the scope of the deposition deals with e-discovery the organization will designate a witness who is familiar with the pertinent policies and practices, such as records management and the e-discovery process, such as where records are held.

Preparing Rule 30(b)(6) witness is vital for both sides
Because of the duty under Rule 30(b)(6) that the witness "must testify about information known or reasonably available to the organization," the designated person, whether it be an employee or an outside consultant, must become familiar with the subject to be covered in the deposition and be fully aware that the testimony – favorable and unfavorable – is that of the organization. Preparation of the 30(b)(6) witness this crucial from the organization's standpoint. Equally important, preparing to examine the witness is a vital duty for the opposing side.

"Sometimes the witness is internal, sometimes it’s a vendor. There’s no law or rule that says it must be an employee," said Barsocchini

Ronald Coleman, partner at Goetz Fitzpatrick LLP in New York says, "Let’s say there is spoliation of evidence in an e-discovery case. The person who does off-site email hosting for the company may be the most knowledgeable person to talk about the ESI procedures. If the company is noticed for a 30(b)(6) deposition and doesn’t have answers, it might use a vendor as the 30(b)(6) witness. But it should be careful about the appearance of trustworthiness since it’s not an employee but a paid outsider."

This testimony will bind an organization in other cases where it may be required to produce the Rule 30(b)(6) deposition that the employee or vendor gave. If the corporate witness is not sufficiently knowledgeable or is unprepared to address ESI practices, it could prolong the litigation and engender costly disputes over spoliation and other e-discovery issues.

Each side has different objectives with the 30(b)(6) witness
In the typical case, the defense tries to limit the testimony to topics mentioned in the notice of deposition, while the plaintiff attempts to broaden the scope to discredit an organization’s e-discovery practices and to lay the groundwork for further discovery on ESI practices.

"An attorney cross-examining a 30(b)(6) witness will try to show that the witness acted in bad faith, such as by hiding or destroying documents, and by displaying company practices show that documents slipped through the cracks," said Barsocchini.

"What you’re trying to do is to get admissions and in the deposition get their position on issues that they’ve avoided in written interrogatories," said Coleman.

"Without a 30(b)(6) deposition, you have the 'it’s not my job, I don’t know' response from company employees. The beauty of 30(b)(6) is that you nail down the company’s answers on issues they might have avoided in interrogatories or in other questioning," said Coleman.

An organization’s 30(b)(6) testimony can fan or calm flames
The 30(b)(6) deposition can calm or fan the flames that can engulf the organization in an e-discovery dispute. It is both dangerous and valuable as a tool for establishing an organization’s position on contested ESI and e-discovery issues. On both sides of the table preparation is the key. On the defense side, preparation of the witness and the documents and exhibits be produced are vital. On the plaintiff’s side doing the necessary homework to examine the witness, the qualifications, the practices and procedures often means the key to success or failure in an e-discovery battle.