Episode 122 - Lessons from the Front Lines: The Overuse of An Underused 30(b)(6) Technique Leads to Severe Sanctions

In this episode, Jim Garrity talks about a new federal appellate decision that affirmed severe sanctions against a party whose lone designated 30(b)(6) representative largely read from lengthy, lawyer-scripted statements, and who was often unable to answer questions without regurgitating the prewritten information. The “scripts” ran hundreds of pages, and the witness sometimes read from them for as much as 45 minutes at a time. Memory aids or notes are an acceptable testimonial aid for 30(b)(6) witnesses – who are often called on to testify about matters for which they have no personal knowledge – but Garrity says there’s a better way to prepare and present 30(b)(6) testimony in cases involving multiple parties, complex claims and defenses, or both. (As always, the Show Notes contain pertinent cases on the topic.). Thanks for listening!

SHOW NOTES

Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468, --- F.4th ---- 2023 WL 3939432 (11^th Cir. June 12, 2023)

Plaintiff’s Response in Opposition to Defendants’ Consolidated Motion for Rule 37 Sanctions, CM/ECF Doc. 404, Consumer Financial Protection Bureau v. Brown, et al., Case No. 1:18-cv-0859-RWS (N.D. Ga. June 2, 2017)

Order Imposing Sanctions, Consumer Financial Protection Bureau v. Brown, et al., Case No. 1:18-cv-0859-RWS (N.D. Ga. Aug. 25, 2017)

Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11^th Cir. June 12, 2023) (issued August 25, 2017)

Brief of Appellee Electronic Merchant Systems, etc., Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11^th Cir. filed May 13, 2022) (CM/ECF Doc. 60)

Brief of Appellee Global Payments, Inc., Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11^th Cir. filed May 13, 2022) (CM/ECF Doc. 61)

Wausau Underwriters Insurance Company v. DanFoss LLC, 310 F.R.D. 683 (S. D. Fla. 2015) (a 30(b)(6) designee’s reliance on an outline is appropriate, especially since the outline was attached as an exhibit to the deposition)

GlobalTap, LLC v. Peterson Manufacturing Corporation, Inc., 2021 WL 3292261, No. 1:18-CV-05383 (N. D. Ill. July 29, 2021) (criticizing designee’s excuse for failing to be properly prepared, saying the witness had no reason to believe he could not bring documents, notes, or other aids, to the deposition)

Healthier Choice Flooring, LLC v. CCA Global Partners, Inc., 2013 WL 1210190, at *8 (N. D. Ga. Jan, 2013) (finding 30(b)(6) designee's request to see prepared written response before responding to questions should not be construed as refusal to answer, saying "It is not unreasonable or unusual for a corporate designee to be provided with written information in order to satisfy the duty of the corporation to produce information in order to satisfy the duty of the corporation to produce a knowledgeable witness in response to the topics noticed for deposition pursuant to Fed. R. Civ. P. 30(b)(6)").