Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation

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1 Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation N. Karen Deming Troutman Sanders LLP 600 Peachtree Street, Suite 5200 Atlanta, GA (404)

2 N. Karen Kay Deming is a partner in the Atlanta office of Troutman Sanders LLP. Ms. Deming has over 35 years of experience as a litigating attorney specializing in the defense of complex product liability actions involving personal injury claims, many of which concern specialized and technical areas of science and medicine. Her practice has required the development of knowledge and fluency in medical, epidemiological, and other scientific disciplines, as well as contacts with numerous reputable experts in these scientific fields. Ms. Deming has served as national counsel for one of the world s largest pharmaceutical companies regarding various of their products, and has also served on national trial teams for other of her pharmaceutical clients. These cases have required special admission to practice in various state and federal courts in jurisdictions outside Georgia, including Alabama, California, Florida, Illinois, Kansas, Kentucky, Minnesota, Mississippi, Nebraska, New Jersey, New York, Nevada, North Carolina, Tennessee, Texas, Virginia, and West Virginia. Ms. Deming is a member of DRI, where she serves on the Drug and Medical Device Steering Committee, a fellow in the American College of Trial Lawyers, and has been recognized as a leading lawyer in litigation by Chambers USA, as well as Best Lawyers in America. Ms. Deming has been named to Georgia Trend magazine s Legal Elite in personal injury ( , ). She has also been selected as a Super Lawyer in Civil Litigation by Law & Politics and Atlanta Magazine ( ); recognized in as a leading corporate counsel in Super Lawyers Corporate Counsel Edition (2010); Selected as a Top 100 Georgia Super Lawyer by Law & Politics and Atlanta Magazine (2010); selected as a Top 50 Female Georgia Super Lawyer by Law & Politics and Atlanta Magazine. ( , ). The author wishes to thank LeeAnn McCurry, former partner at Troutman Sanders LLP, and Lennon Haas, a Troutman Sanders associate for their contributions to this paper.

3 Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Table of Contents I. Requirements and Potential Pitfalls of the 30(b)(6) Deposition A. Analysis of the 30(b)(6) Notice The 30(b)(6) Notice Must Designate the Proposed Areas of Inquiry With Reasonable Particularity Limitations On the Designated Areas of Inquiry Pursuant To Rule 30(b)(6) B. Selecting and Preparing the Appropriate Corporate Representative Who Is the Appropriate Corporate Representative? Preparing For the 30(6)(6) Deposition C. The Slippery Slope Protecting Work Product From Discovery While Adequately Investigating and Preparing the 30(B)(6) Witness Application of Rule 30(b)(6) To Documents Normally Protected By the Attorney-Client and/or Work Product Privileges Compilations of Non-Privileged Documents Selected By Corporate Counsel For the Purpose of Preparing the 30(b)(6) Witness II. The 30(b)(1) Deponent A. Putting FRCP 30(b)(1) In Context B. Deposition of A Top Executive Or Apex Depositions Authority For Limiting Apex Depositions Strategy For Limiting APEX Depositions III. Conclusion Endnotes Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 169

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5 Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Rules 30(b)(6) and 30(b)(1) of the Federal Rules of Civil Procedure have long provided civil litigants the ability to notice the deposition of a corporate defendant, partnership, association, or government agency, as well as specific corporate witnesses. These rules are powerful discovery tools, which can be effectively utilized and can cripple a meritorious defense if counsel do not understand the very precarious position they present to their clients. Rule 30(b)(6) imposes an obligation upon such a party to investigate designated areas of inquiry and to educate and proffer an appropriate representative whose testimony will thereafter bind that entity. Various publications and positions urged in more than a few cases have sought to utilize this Rule as a means both to foist the cost of discovery onto the business entity, more often than not the corporate defendant in the context of products liability litigation, as well as to invade areas normally protected by the attorney-client privilege and/or work product doctrine. Properly noticed and executed 30(b)(6) depositions can provide a plaintiff with significant advantages, and at least one commentator has urged its use as the primary method of discovery, replacing... wasteful and inefficient preliminary interrogatories that plague most lawsuits See Cymrot, Mark A., The Forgotten Rule, Litigation, Vol. 18, No. 3, p. 6, 7 Spring 1993 (hereinafter referred to as Cymrot ). Mr. Cymrot posited that Rule 30(b)(6) has the further advantage of cutting off many of the usual refuges for the weak or trapped witness. I do not know and I do not remember are not adequate answers under Rule 30(b)(6). Cymrot at 7. The following discussion will seek to discuss the very precarious nature of Rule 30(b)(6) to the corporate defendant. The topics covered include (1) obligations of the corporation once a Rule 30(b)(6) deposition notice is filed; (2) measures necessary for adequate preparation of a Rule 30(b)(6) deponent and potential dangers associated with preparing a corporate representative for a 30(b)(6) deposition; and (3) available measures to protect the corporation from abusive, overly broad and burdensome 30(b)(6) designations. Also, discussed is the use of Rule 30(b)(1) to seek depositions of specific corporate representatives, more specifically, corporate officers often referred to as apex depositions and how to defend against such notices. I. Requirements and Potential Pitfalls of the 30(b)(6) Deposition Given the current litigation climate, counsel for a corporate party should anticipate and prepare for a potential 30(b)(6) deposition from the inception of the lawsuit so as not to be caught short when the deposition is ultimately sought. In anticipating such discovery, one must first be familiar with the specific requirements of Rule 30(b)(6) as well as its limitations. Upon actually receiving a 30(b)(6) notice, counsel for the corporate party should employ a three-step plan for addressing and meeting the Rule 30(b)(6) requisites: (1) analyze carefully the 30(b)(6) notice to ensure it complies with the requirements of Rule 30(b) (6), is not overly broad or burdensome and is not being sought for an improper purpose; (2) after ensuring the notice is proper, select, designate and prepare adequately the corporate designee; and (3) at all times ensure that attorney-client and work product privileges are maintained and protected. Each step is discussed more fully. Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 171

6 A. Analysis of the 30(b)(6) Notice 1. The 30(b)(6) Notice Must Designate the Proposed Areas of Inquiry With Reasonable Particularity Rule 30(b)(6) 1 imposes upon the examining party the duty of designating the areas of inquiry with reasonable particularity... United States v. Taylor, 166 F.R.D. 356, 360 (M.D.N.C. 1996). Clearly, when a 30(b)(6) notice fails to describe the subject matter of the proposed examination, it is defective. See Murphy v. Kmart Corp., 255 F.R.D. 497, 506 (D.S.D 2009). Similarly, when a notice is so broad as to be practically limitless, a notice may be quashed for insufficiently identifying the examination areas sought. See Gen. Foods Corp. v. Computer Election Sys., Inc., 211 U.S.P.Q. 49 (S.D.N.Y. 1980) (where Rule 30(b)(6) subpoena required non-party to produce competent witnesses and pertinent documents in response to 143 questions, and to recall every fact, conception, intention, understanding, belief and sense impression, with respect to various patents, court would quash deposition notice as entirely too broad and burdensome ); Skladzien v. St. Francis Reg l Med. Ctr., No MLB, 1996 U.S. Dist. LEXIS 20621, at *2 (D. Kan. Dec. 19, 1996) (request that defendant provide testimony, pursuant to 30(b)(6) notice, regarding any statement of fact set forth in the amended complaint that had been denied by corporation, did not provide with reasonable particularity the matters on which examination was requested; plaintiff was required to list specifically all subject matters for which a 30(b)(6) designation was sought). Courts have generally found Rule 30(b)(6) designations between these two extremes to be sufficiently particularized. 2 Accordingly, upon receipt of a 30(b)(6) notice, counsel for a corporate party must consider whether the designated areas of inquiry are sufficiently particularized. If the request is practically limitless or if, in order to prepare the corporate witness to respond fully to one or more designations, the deponent s counsel would be required to marshal all of its factual proof, the notice arguably lacks sufficient particularity, thus entitling the corporate deponent to the protection of a Rule 26 protective order. In re Indep. Serv. Orgs. Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996) (quoting United States v. Dist. Council of N.Y.C., No. 90 Civ. 5722, 1992 U.S. Dist. LEXIS (S.D.N.Y. Aug. 18, 1992)); see also Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000); Skladzien, 1996 U.S. Dist. LEXIS 20621, at *1 (notice calling for designation of witness to testify as to any statement of fact set forth in the Amended Complaint denied by the defendant, did not identify with reasonable particularity the proposed areas of inquiry) Limitations On the Designated Areas of Inquiry Pursuant To Rule 30(b) (6) Because Rule 30(b)(6) contains no express restriction on the scope of a proper corporate deposition, some proponents have claimed that the areas of inquiry that may be designated in a 30(b)(6) notice are very broad, limited only by Rule 23(b) s requirement that information be reasonably calculated to lead to the discovery of admissible evidence. Cymrot at 6. See also Massey at However, there are limitations to just how far Rule 30(b)(6) may be used. a. Availability of Reasonable and Less Burdensome Means of Discovery The limits that courts are willing to impose on the 30(b)(6) deposition will vary depending on the particular jurisdiction. Indeed, it appears that courts will consider on a case-by-case basis whether a given subject matter may be explored through a 30(b)(6) deposition, or is better suited to other discovery devices. The analysis often will depend on how subtle or complex the evidentiary and legal bases underlying a party s contentions are. See Taylor, 166 F.R.D. at 362 n. 7 (M.D.N.C. 1996); McCormick-Morgan, Inc. v. Teledyne Indus., 134 F.R.D. 275, 287 (N.D. Cal. 1991), rev d in part on other grounds, 765 F. Supp. 611 (N.D. Cal. 1991). For example, in In re Independent Service Organizations, the plaintiff (CCS) served Xerox with a 30(b)(6) 172 Defending Drug and Medical Device Litigation: A Primer for Young Lawyers September 2014

7 notice requesting testimony about facts supporting numerous paragraphs in Xerox s Answer and Counterclaim. Upon motion, the court granted Xerox a protective order, stating: Although we have no quarrel with CCS s contention that it has a right to discover the facts upon which Xerox will rely for its defense and counterclaims, CCS s attempt to discover those facts through a Rule 30(b)(6) deposition is overbroad, inefficient, and unreasonable. It also implicates serious privilege concerns... Even under the present-day liberal discovery rules, Xerox is not required to have counsel marshal all of its factual proof and prepare a witness to be able to testify on a given defense or counterclaim. We find the reasoning of the court in United States v. District Council of New York City, No. 90 Civ (CSH), 1992 WL , at *15 (S.D.N.Y. Aug. 18, 1992), particularly apropos: To provide the information defendants seek would in effect require the Government to marshal all of its factual proof and then provide it to [the 30(b)(6) designate] so that she could respond to what are essentially a form of contention interrogatories. Aside from any issues of privilege, this would be highly inefficient and burdensome, rather than the most direct manner of securing relevant information F.R.D. at 654; see also In re Enron Creditors Recovery, No , 2007 WL , at *3 (Bankr. S.D.N.Y. Sept. 6, 2007) (finding contention interrogatories more appropriate than 30(b)(6) deposition for inquiry into the defendants conclusions, opinions, and legal theory ); In re Tex. E. Transmission Corp. PCB Contamination Ins. Coverage Litig., MDL No. 764, 1990 U.S. Dist. LEXIS 2443, *7-8 (E.D. Pa. Mar. 6, 1990) (use of interrogatories, rather than 30(b)(6) deposition, was more appropriate mechanism for inquiring into opinions and/ or contentions that relate to facts or the application of law to facts in the context of defendant s affirmative defenses). Conversely, however, in Resolution Trust Corp. v. Sands, the defendants served an exceedingly broad 30(b)(6) notice upon the RTC seeking testimony as to the various bases of the RTC s claims F.R.D. 616, 620 (N.D. Tex. 1993). The RTC sought a protective order, contending that the topics of inquiry were oppressive and that less burdensome means were available to defendants to obtain such information. The court concluded, however, that because the designated topics sought only the factual basis for the RTC s claims, and would not mandate the production of expert testimony, the RTC would be required to designate a representative to provide testimony on the areas of testimony noticed by defendants. Id. at 620; see also Ierardi v. Lorillard, Inc., No , 1991 U.S. Dist. LEXIS 11887, *7-8 (E.D. Pa. Aug. 23, 1991) (defendant would be required to produce 30(b)(6) witness to testify as to whether and when it developed knowledge of harmful effects of asbestos and whether it ever warned the public about such effects). Accordingly, if faced with an exceedingly broad 30(b)(6) notice, counsel should (1) evaluate the specific subjects designated; (2) determine whether a 30(b)(6) deposition is the most appropriate device by which to discover the requested information; and (3) contemplate for purposes of supporting a motion for protective order, more reasonable, less burdensome and equally efficient alternatives to the 30(b)(6) deposition proposed. 5 In appropriate cases, courts have ordered that a party utilize other means of discovery in lieu of a 30(b)(6) deposition. See In re Enron Creditors Recovery, 2007 WL , at *3; PCB Contamination Insurance Coverage Litigation, 1990 U.S. Dist. LEXIS 2443, at *8; Taylor, 166 F.R.D. at 363 n. 7 ; McCormick-Morgan, Inc., 134 F.R.D. at 286. But see Ierardi, 1991 U.S. Dist. LEXIS b. Rule 30(b)(6) Deposition Sought For Improper Purposes When it appears that information sought pursuant to a 30(b)(6) deposition is duplicative or proffered as a means of harassment, or when an adequate response would require expert testimony, protection under Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 173

8 Rule 26 may be available. See, e.g., Schwarzkopf Techs. Corp. v. Ingersoll Cutting Tool Co., 142 F.R.D. 420 (D. Del. 1992); Gen. Foods Corp. v. Computer Election Sys., Inc., 211 U.S.P.Q. 49 (S.D.N.Y. 1980); Sands, 151 F.R.D. at 620. Counsel should scrutinize the designated areas of inquiry in light of discovery previously made to determine if Rule 30(b)(6) is being used for any improper purpose, such as an attempt to discover counsel s trial and discovery strategies. For instance, in American National Red Cross v. Travelers Indemnity Co., the court supported the defendant s refusal to respond to certain questions during its 30(b)(6) deposition regarding the facts and documents which [defendant] contends support its affirmative defenses. 896 F. Supp. 8, 13 (D.D.C. 1995). Prior to the 30(b)(6) deposition, the parties had exchanged over 200,000 pages of documents, deposed dozens of witnesses and exchanged hundreds of interrogatories over the course of discovery. Finding that the defendant s counsel had spent much of their time culling through hundreds of thousands of pages of documents, transcripts, and interrogatory responses, in an effort to select and compile the facts and documents relevant to each separate affirmative defense, the court concluded that the deposition inquiries intruded upon protected work product; in effect, what [plaintiff] was requesting was insight into [defendant s] defense plan. Id. at Similarly, in Coleman v. General Electric Co., the plaintiff filed 30(b)(6) notices seeking information regarding the defendant s search efforts to find documents and information responsive to the plaintiff s discovery requests, as well as the designation of witnesses to testify about certain employment circumstances. No. 94-cv-4740, 1995 U.S. Dist. LEXIS 8186, at *5-6 (E.D. Pa. June 8, 1995). In granting the defendant s motion for protective order, the court concluded that: [t]he problem in this case is distinguishing between questions which go to a deponent s knowledge of the facts, and those which seek the discovery of the theory of the defense or which invade the privacy of the trial preparation process... [citation omitted]. Questions about in-house counsel s view of the case, facts which counsel considers significant, or any specific questions to be asked about the investigation or search efforts to locate documents all fall under the category of questions about mental impressions. Id. See also EEOC v. Am. Int l Grp, No. 93 Civ. 6390, 1994 U.S. Dist. LEXIS 9815, at *8 (S.D.N.Y. July 18, 1994) (30(b)(6) deposition inquires regarding EEOC s view of the relevant facts can only be designed to explore the EEOC s determinations of how it intends to order its proof, denying defendant s motion to compel); SEC v. Morelli, 143 F.R.D. 42, 47 (S.D.N.Y. 1992) (where it was undisputed that all relevant, non-privileged evidence had been produced by plaintiff, defendant s 30(b)(6) notice, seeking specific information regarding inside information allegedly received and disseminated by defendant, could only have been for purpose of ascertaining how the SEC intends to marshall [sic] the facts, documents and testimony in its possession and to discover the inferences that plaintiff believes properly can be drawn from the evidence it has accumulated, granting SEC s motion for protective order); United States v. Pepper s Steel & Alloys, Inc., 132 F.R.D. 695, 699 (S.D. Fla. 1990) (plaintiffs questions during 30(b)(6) deposition seeking defendant s interpretation of Florida law falls squarely within the opinion work product doctrine... Revealing a party s interpretation of law presents a real nonspeculative risk of revealing the thoughts of [defendant s] counsel as well as the deponent ). Hence, when the areas of inquiry designated in a 30(b)(6) notice seek discovery relating to (1) subtle or complex evidentiary contentions that may be difficult for a layman to understand or articulate, (2) the legal basis for a claim or defense, or (3) counsel s trial strategy, an application for a protective order should be made either to narrow the scope of the 30(b)(6) notice or to have the examining party seek such discovery through other, more appropriate means such as contention interrogatories. 174 Defending Drug and Medical Device Litigation: A Primer for Young Lawyers September 2014

9 B. Selecting and Preparing the Appropriate Corporate Representative 1. Who Is the Appropriate Corporate Representative? a. The Corporation Must Make A Good-Faith Effort To Designate Individuals With Knowledge of the Matters Sought To Be Discovered Once the scope of the 30(b)(6) deposition has been adequately defined, the corporation must designate a representative who has the authority to speak on behalf of the corporation with respect to the areas within the notice of deposition. Estate of Thompson v. Kawasaki Heavy Indus., Inc., 291 F.R.D. 297, 303 (N.D. Iowa 2013). In designating a representative for the 30(b)(6) deposition, the corporate deponent is not limited to producing a single representative to testify on its behalf. Phillips v. Mfrs. Hanover Trust Co., No. 92 Civ. 8527, 1994 U.S. Dist. LEXIS 3748, at *15-16 (S.D.N.Y. Mar. 29, 1994). Rather, it may designate such number of persons as will satisfy the request. Taylor, 166 F.R.D. at 356. Significantly, the party seeking the deposition cannot demand or specify that a particular officer, director or employee of the corporate defendant be designated to testify pursuant to a 30(b)(6) notice. 7 See, e.g., Operative Plasterers & Cement Masons Int l Ass n v. Benjamin, 144 F.R.D. 87 (N.D. Ind. 1992). Rather, the corporate defendant has the right to determine which employees will speak on its behalf. See Fed. R. Civ. P. 30(b)(6) ( The named organization must... designate one or more officers, directors, or managing agents... to testify on its behalf. ); James C. Winton, Corporate Representative Depositions Revisited, 65 Baylor L. Rev. 938, 967 (2013). This right of designation, however, does not appear to be unlimited. Rather, in making its designations, the corporation must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the discovering party]. FDIC v. Butcher, 116 F.R.D. 196, 199 (E.D. Tenn. 1986), aff d, 116 F.R.D. 203 (E.D. Tenn. 1987). Courts have therefore frowned upon corporate parties who designate individuals having no independent familiarity with the topics on which they are proffered. For instance, in Butcher, the FDIC designated certain individuals to provide testimony regarding claimed losses for which it sought to hold defendants liable. Rather than designating the primary investigators, however, the FDIC chose representatives who it conceded were not expected to be trial witnesses and who had not participated in the FDIC s investigation of the defendants allegedly wrongful conduct. These individuals were provided with certain materials to review relating to the investigation prior to being offered as 30(b)(6) representatives. The proposed representatives were not, however, provided with a six-part memorandum: which had been prepared by the primary investigators and which the district court had ruled was protected from disclosure. Id. The court concluded that the FDIC s designation of these individuals was inadequate and ordered the FDIC to redesignate Rule 30(b)(6) witnesses to answer questions regarding the 13 areas described in defendants Amended Notice of Depositions. Id. at 202. In ordering the redesignation, the court chastised the FDIC for trying to reinvent the wheel by having examiners other than the ones who have already compiled the six-part memoranda look over the same work papers and related documents and testify about them... [when] the simplest, most economical thing to do would be to provide the defendants with the factual statements in the six-part memoranda and offer the examiner whose name appears on the six-part memorandum for discovery if there are questions which need to be asked. Id. at 201. See also Resolution Trust Corp. v. S. Union Co., 985 F.2d 196, (5th Cir. 1993) (where RTC possessed documents clearly identifying Jones as having personal knowledge of the subject of the deposition and Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 175

10 failed to produce those documents or designate Jones until after it had designated other, less knowledgeable, witnesses, RTC did not make a meaningful effort to acquit its duty to designate an appropriate witness, making award of fees and costs under Rule 37(d) appropriate). b. The Corporation May Be Required To Designate Non-Employees As 30(b)(6) Witnesses While a corporation clearly has the option of designating a former employee who consents to testify in response to a 30(b)(6) notice, see Kiryas Joel Local Dev. Corp. v. Ins. Co. of N. Am., No. 90 Civ. 4970, 1991 U.S. Dist. LEXIS 3407, at *6 (S.D.N.Y. Mar. 21, 1991), it also appears that courts have occasionally required that an individual other than a current corporate employee be designated and produced pursuant to a 30(b)(6) notice. For instance, in Sierra Rutile Ltd. v. Katz, plaintiff sought to depose the corporate defendants through a 30(b)(6) notice. No. 90 Civ. 4913, 1995 U.S. Dist. LEXIS 118 (S.D.N.Y. Jan. 11, 1995). The defendants, however, were dormant and inactive entities, having no current officers with knowledge of the transactions at issue. In response to the plaintiff s motion, the court ordered under the circumstances of that litigation that a director of a majority shareholder of one defendant s parent company, be designated as the defendants managing agent for purposes of the 30(b)(6) deposition. Id. at *23. See also In the Matter of the Arbitration between P.R. Mar. Shipping Auth. and Star Lines, Ltd., No. 79 Civ (Slip Op.) (S.D.N.Y. June 10, 1980) (court ordered that a former employee be designated as a managing agent for purposes of a 30(b)(6) notice where the corporate deponent had no officers, directors, agents or employees). But see Lapenna, 110 F.R.D. at 23 (where corporate defendant identified retired employee as the person responsible for animal and laboratory testing of Depo-Medrol, it was not required to produce him pursuant to Rule 30(b)(6)). To the extent a former employee has specific, relevant knowledge, or is more knowledgeable in a given area than any current employee, the corporation should consider whether it would be beneficial to have that individual designated as a corporate representative (with the concomitant ability, and duty, to prepare that individual to testify). Once proffered as a 30(b)(6) witness, however, the former employee s testimony will be binding on the corporation. 2. Preparing For the 30(6)(6) Deposition a. The Corporation s Duty To Gather Information Reasonably Available The designated corporate representatives must be prepared to testify as to matters known or reasonably available to the organization. Fed. R. Civ. P. 30(b)(6). Because the representative s duty is to testify as to the corporations knowledge, the corporation has the duty to gather reasonably available information...create a spokesperson and educate him or her in order to comply with the Rule 30(b)(6) subpoena. Elbein at 368. A Rule 30(b)(6) deposition is not limited to what a particular representative or the corporation knows at the time of the notice; nor is it limited to discovery of facts clearly known to the corporation which could not otherwise be obtained. Mitsui & Co. (U.S.A.). Inc. v. P. R. Water Res. Auth., 93 F.R.D. 62, 65 (D.P.R. 1981). Rather, it encompasses the information that is known to the corporate deponent after due inquiry. Id. at 66 (emphasis added). See also Biax Corp. v. Nvidia Corp., No. 09-cv-01257, 2010 WL , at *3 (D. Col. Oct. 14, 2010). 8 b. The Corporate Witness Must Be Prepared To Provide Complete and Binding Answers To the Designated Areas of Inquiry After the corporation has gathered reasonably available information responsive to the 30(b)(6) notice, counsel must prepare the designated witnesses so that they may give complete, knowledgeable and 176 Defending Drug and Medical Device Litigation: A Primer for Young Lawyers September 2014

11 binding answers on behalf of the corporation. Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989); see also Taylor, 166 F.R.D. at Some courts consider a party s failure to prepare a corporate deponent properly for a 30(b)(6) deposition to be tantamount to a failure to appear rendering the corporation subject to sanctions under Rule 37(d). Taylor, 166 F.R.D. at See also Pioneer Drive, LLC v. Nissan Diesel Am., Inc., 262 F.R.D. 552, 559 (D. Mont. 2009) (holding that [w]hile a physical body was present [at 30(b)(6) deposition], no person who satisfied the legal requirements of Rule 30(b)(6) was produced ); Barron v. Caterpillar. Inc., 168 F.R.D. 175, 177 (E.D. Pa. 1996) ( [W]hen the corporate designee lacks knowledge over the pertinent subject matter, courts find that the corporation has failed to make any appearance at the deposition. ). But is a 30(b)(6) witness unprepared simply because he or she may not be able to respond to one or more of the questions posed by the examining party? One commentator has concluded that the answer to this question is an unequivocal yes. See Cymrot at 7 (duty to investigate and prepare corporate designee s renders I do not know and I do not remember inadequate answers under Rule 30(b)(6)). While not all courts have imposed such an absolute rule, some cases suggest that I do not know or I do not remember may, in fact, be an insufficient response under Rule 30(b)(6). For instance, in Marker v. Union Fidelity Life Insurance Co., the plaintiff noticed the defendant s 30(b)(6) deposition and specifically designated that a person knowledgeable about claims processing and claims records, and... general file keeping, storage and retrieval systems of defendant should be produced. 125 F.R.D. 121 (M.D.N.C. 1989). The corporate representative provided, however, was unable to respond to specific questions concerning the retrieval of computerized data. Id. at 123. The court, granting the plaintiffs motion to compel additional 30(b)(6) testimony, stated: Even if defendant in good faith thought that the claims director would satisfy the deposition notice, it had a duty to substitute another person once the deficiency of its Rule 30(b)(6) designation became apparent.... Id. at 126 (emphasis added). Other courts have similarly found a duty to substitute when a 30(b)(6) designee is unable to respond fully to an examining party s questions. See In re Air Crash Disaster at Detroit Metro. Airport, 130 F.R.D. 627, 631 (E.D. Mich. 1989) (finding that if designee was unable to provide detailed testimony regarding the flight schedule exhibit, then Northwest must produce an individual who is competent to discuss the contents of the document. ); Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995) (stating that if corporate designee s testimony is deficient, corporation is obligated to provide a substitute ). 10 c. Examination of Corporate Designees On Matters Other Than the Topics For Which They Have Been Proffered Under 30(b)(6) Courts have disagreed as to whether a 30(b)(6) designee can be examined on topics beyond those listed in the deposition notice or for which he or she was proffered. In Falchenberg v. NY State Dep t of Educ., the district court held that if a party opts to employ the procedures of Rule 30(b)(6) to depose a representative of a corporation, that party must confine the examination to the matters stated with reasonable particularity which are contained in the notice of deposition. 567 F.Supp. 2d 513, 521 (S.D.N.Y. 2008). Questions and answers exceeding the scope of the 30(b) (6) notice will not bind the corporation, but are merely treated as the answers of the individual deponent. If a Rule 30(b)(6) deponent does not know the answer to questions outside the scope of the matters described in the notice, then that is the examining party s problem. Id. See also Paparelli v. Prudential Ins. Co., 108 F.R.D. 727 (D. Mass. 1985). 11 Many courts, however, have reached the opposite result. In King v. Pratt & Whitney, the district court concluded that Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 177

12 Rule 30(b)(6) should not be read to confer some special privilege on a corporate deponent responding to this type of notice. Clearly, Plaintiff could simply re-notice a deponent under the regular notice provisions and ask him the same questions that were objected to. However, Plaintiff should not be forced to jump through that extra hoop absent some compelling reason. 161 F.R.D. 475, 476 (S.D. Fla. 1995), aff d, 213 F.3d 647 (11th Cir. 2000). The King court therefore ruled that when an examining party asks questions outside of the topics described in the 30(b)(6) notice, the general deposition rules govern, i.e. Rule 26(b)(1)), so that relevant questions may be asked and no special protection is conferred... and, to the extent the corporate representative lacks knowledge regarding topics beyond those designated in the notice, then that is the examining party s problem. Id. See also Barron, 168 F.R.D. at 178 (where plaintiffs questioned designated corporate representative on topics beyond those specified in their 30(b)(6) notice and complained that corporate representative s deposition testimony was inadequate, on motion to compel, plaintiff would be allowed to conduct additional written discovery, but could only seek information that was within the purview of the topics listed in their 30(b)(6) notice). C. The Slippery Slope Protecting Work Product From Discovery While Adequately Investigating and Preparing the 30(B)(6) Witness Recognizing the corporate defendant s duty to gather information and prepare the 30(b)(6) corporate designee, some plaintiffs counsel may seek to use Rule 30(b)(6) to discover the corporate defendant s trial strategy and work product. A zealous advocate may even seek to discover under the auspices of Rule 30(b)(6) information otherwise shrouded by attorney-client privilege. As one commentator has noted: if counsel chooses to educate the witness, she must by necessity risk revealing knowledge of and strategy about the case. The spokesperson s testimony will necessarily reflect what counsel believes to be important. Counsel s analysis of the importance of facts, however, has always been considered privileged. The revelation is therefore an infringement of traditional work product protection. Elbein at 370. Without question, for the examining party, nothing could be more useful (even if excluded at trial) than the opposing counsel s trial strategy. Id. at 372. See Cymrot at 8. Attorneys work product, of course, is normally not discoverable in the absence of a showing that the party seeking discovery has substantial need of the materials in the preparation of the party s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Fed. R. Civ. P. 26(b)(3). This privilege can be undercut, however, when the examining party is permitted to discover the materials used in preparing the 30(b)(6) witness. Specifically, Federal Rule of Evidence 612 permits the discovery of preparatory materials if, prior to testifying, the witness uses a writing to refresh his memory for the purpose of testifying and the court in its discretion determines it is necessary in the interest of justice. 12 Because the purpose underlying Rule 612 is to provide a basis for cross-examination of testimony suggested by the documents, the examining party will often contend that it affords the absolute right to discover documents reviewed by a 30(b)(6) witness in preparing to give testimony. Bank Hapoalim, B.M. v. Am. Home Assurance Co., No. 92 Civ. 3561, 1994 U.S. Dist. LEXIS 4091, at *16 (S.D.N.Y. Apr. 6, 1994). Courts, however, have recognized the obvious potential for conflict [that] exists between Rule 612, which favors disclosure of materials used to refresh a witness recollection, and the work-product privilege. Redvanly v. Nynex Corp., 152 F.R.D. 460, 470 (S.D.N.Y. 1993) (quoting In re Joint E. and S. Dist. Asbestos Litig., 119 F.R.D. 4, 5 (E.D.N.Y & S.D.N.Y. 1988)). Hence, courts confronted by this conflict have often opted 178 Defending Drug and Medical Device Litigation: A Primer for Young Lawyers September 2014

13 to consider requests for discovery preparation materials on a case-by-case basis by balancing the competing interests in the need for full disclosure and the need to protect the integrity of the adversary system protected by the work-product rule. Id. First, in order for preparatory materials to be discovered, courts require the requesting party to show that the documents had an impact on the testimony of the deponent. Bank Hapoalim, 1994 U.S. Dist. LEXIS 4091, at *8-9. If so, the court: should weigh (1) any attempt at improper use of the work product doctrine to exceed the limits of preparation on the one hand and concealment on the other, (2) the degree to which the documents in question are composed of factual material rather than an attorney s legal analysis, and (3) whether the disclosure demand constitutes a fishing expedition. Id. 1. Application of Rule 30(b)(6) To Documents Normally Protected By the Attorney-Client and/or Work Product Privileges One must keep in mind that if documents protected by the attorney-client privilege or work product doctrine are used in preparing a 30(b)(6) witness for deposition, the privileges may be deemed waived, subjecting the privileged documents to discovery. See Reed v Advocate Health Care, No. 06 C 3337, 2008 WL , *1 (N.D. Ill. 2008) (citing James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 145 (D. Del. 1982)); Wheeling-Pittsburg Steel Corp. v. Underwriters Labs. Inc., 81 F.R.D. 8, 9 (N.D. Ill. 1978) (where documents protected by attorney-client privilege were reviewed by deponent prior to deposition, privilege was waived); Bank Hapoalim, 1994 U.S. Dist. LEXIS 4091, at *20-21 (attorney-client privilege waived as to documents reviewed by deponent in preparing for his deposition). Courts have justified such discovery finding that, it is disquieting to posit that a party s lawyer may aid a witness with items of work product and then prevent totally the access that might reveal and counteract the effects of such assistance... with the anticipation that these efforts should remain forever unknowable and undiscoverable. Redvanly, 152 F.R.D. at 470 (quoting Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 616 (S.D.N.Y 1977)). See also Wheeling-Pittsburg Steel Corp., 81 F.R.D. at 10. Extreme care should therefore be taken when determining which, if any, documents should be reviewed by the 30(b)(6) corporate designee. To the extent the witness reviews materials that have been withheld from production due to privilege, counsel should be prepared to produce those documents to the examining party. Even if the witness does not review privileged documents, however, counsel must ensure that the witness is educated as to any relevant, non-privileged facts contained in such documents. See FDIC v. Butcher, 116 F.R.D. 196 (E.D. Tenn. 1986) (counsel, in preparing 30(b)(6) witness, refused to permit witness to review privileged memoranda for fear its production would be required by Rule 612; but because factual contentions contained in memoranda were clearly discoverable, court ordered FDIC to redesignate 30(b)(6) witnesses and educate them as to all discoverable matters). 2. Compilations of Non-Privileged Documents Selected By Corporate Counsel For the Purpose of Preparing the 30(b)(6) Witness A closer question is presented when a witness is provided a selection of non-privileged documents compiled by the attorney for the purpose of deposition preparation. Most courts agree that the selection and compilation of documents by counsel... in preparation for pretrial discovery falls within the highly-protected category of opinion work product Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.) cert. denied, 474 U.S. 903 (1985). See also In re Allen, 106 F.3d 582, 608 (4th Cir. 1997). Indeed, in cases involving extensive document discov- Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 179

14 ery, the process of selection and distillation is often more critical than pure legal research. James Julian, Inc., 93 F.R.D. at 144. Some courts have concluded that [p]roper application of Rule 612 should never implicate an attorney s selection, in preparation for a witness deposition, of a group of documents that he believes critical to a case. Instead, identification of such documents under Rule 612 should only result from opposing counsel s own selection of relevant areas of questioning, and from the witness subsequent admission that his answers to those specific areas of questioning were informed by documents he had reviewed. In such a case, deposing counsel would discover the documents through his own wit, and not through the wit of his adversary. Sporck, 759 F.2d at (emphasis added and footnote omitted). See also Omaha Pub. Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615, 617 (D. Neb. 1986) (examining party may question witness as to which, if any, documents informed his testimony). II. The 30(b)(1) Deponent A. Putting FRCP 30(b)(1) In Context In addition to Rule 30(b)(6), plaintiffs may seek to depose corporations through specifically named officers, directors or managing agents pursuant to Rule 30(b)(1). 13 Bd. of Trs. of Leland Stanford Junior Univ. v. Tyco Int l, Ltd., 253 F.R.D. 524, 525 (C.D. Cal. 2008) (citing GTE Products Corp. v. Gee, 115 F.R.D. 67, 68 (D. Mass. 1987)). At such a deposition, the testimony is of the corporation and if the corporation is a party, the testimony may be used at trial by an adverse party for any purpose. Gee, 115 F.R.D. at 68. Significantly, in contrast to Rule 30(b)(6), Rule 30(b)(1) does not require that the subject matter of the noticed deposition be disclosed. Operative Plasterers & Cement Masons Int l Ass n v. Benjamin, 144 F.R.D. 87, 90 (N.D. Ind. 1992). Although nothing in Rule 30(b)(1) specifically obligates a corporate party to produce its officers, directors or managing agents pursuant to a deposition notice, where specifically named in the 30(b)(1) notice, courts generally agree that an appearance subpoena is unnecessary to compel the attendance of such witnesses. Stone v. Morton Int l. Inc., No 96-NC-006, 1997 U.S. Dist. LEXIS 2077, at *17 (D. Utah Feb. 24, 1997). See also 9A Charles Allan Wright & Arthur R. Miller et al., Federal Practice & Procedure 2460 (3d ed. 2010) ( A subpoena under Federal Rule 45 is unnecessary to take the deposition of a party or of an officer, director, or managing agent of a party. ). However, a corporate employee or agent who does not qualify as an officer, director or managing agent is not subject to deposition by notice; rather, the examining party must procure his or her attendance by subpoena pursuant to Rule 45. United States v. Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994); Gee, 115 F.R.D. at 69. Nor is the testimony of subordinate corporate employees binding on the corporation. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996) (testimony by mere corporate employee is not considered that of the corporation). Courts have struggled in determining whether a designated corporate employee is a managing agent such that his or her testimony will be binding on the corporation. See Massey at Generally, the examining party has the burden of establishing the status of a designated corporate employee, and whether an employee can be deemed a managing agent of the corporation is a fact-sensitive inquiry, to be answered pragmatically on an ad hoc basis. Afram Lines, 159 F.R.D. at 413 (quoting 8 Wright & Miller 2103). Such an inquiry is dependent upon several factors: 1) whether the individual is invested with general powers allowing him to exercise judgment and discretion in corporate matters; 2) whether the individual can be relied upon to give testi- 180 Defending Drug and Medical Device Litigation: A Primer for Young Lawyers September 2014

15 mony, at his employer s request, in response to the demands of the examining party; 3) whether any person or persons are employed by the corporate employer in positions of higher authority than the individual designated in the area regarding which the information is sought by the examination; 4) the general responsibilities of the individual respecting the matters involved in the litigation, [citation omitted]; and 5) whether the individual can be expected to identify with the interests of the corporation. Afram Lines, 159 F.R.D. at 413 (quoting Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 170 (S.D.N.Y. 1985)); see Terry v. Modern Woodmen of Am., 57 F.R.D. 141, 143 (W.D. Mo. 1972) (questioned on other grounds) (where proposed deponent was in complete charge of the negotiation and sale of insurance contracts at issue and had the duties and powers of an insurance supervisor, he was managing agent for purposes of testimony regarding manner in which he obtained approval to sell insurance contracts to base personnel); Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, (S.D.N.Y. 1968) (where proposed deponents were sent by defendant to assist in investigation of airplane crash, were the only employees of defendant to be present at investigation, were in complete charge of identifying minute pieces of wreckage, and had an identity of interest with their employer, employees would be considered managing agents for purposes of giving testimony regarding accident investigation). Although courts typically look to all factors, identification with interests of the employer often predominates. See 8A Wright & Miller 2103 (2010). Where an employee s deposition is noticed, individually, and not on behalf of the corporation, the employee s status with the corporation is a proper area of inquiry, and if, during the course of the deposition, sufficient evidence is produced to establish that the employee is a managing agent of his or her employer, then that deposition testimony maybe used against the corporation as provided in Rule 32(a)(2), just as if the examining party had noticed the deposition of the corporation through that individual. See Gee, 115 F.R.D. at 69. While protective orders prohibiting a deposition entirely are not favored, Conti v. Am. Axle and Mfg., Inc., 326 F. App x 900, (6th Cir. 2009) (citing Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)), at least one court has concluded that it may be appropriate to require the examining party to invoke Rule 30(b) (6) first, prior to deposing individual corporate representatives via 30(b)(1). See Stone v. Morton Int l, Inc., 170 F.R.D. 498, 504 (D. Utah 1997) (precluding plaintiff from deposing defendant s officer without first showing compliance with Rule 30(b)(6) or other discovery methods and reasonable exhaustion of the relevant subject matter through those means). Where the designated corporate employee has direct involvement or personal knowledge relating to the litigation, however, it is unlikely that the examining party will be required to utilize Rule 30(b)(6) or any other discovery method prior to noticing his or her deposition. See Mercantum (U.S.) Corp. v. Chilean Line. Inc., No. 90 Civ. 1103, 1991 U.S. Dist. LEXIS (S.D.N.Y. July 23, 1991). B. Deposition of A Top Executive Or Apex Depositions 1. Authority For Limiting Apex Depositions When a plaintiff notices the deposition of the defendant s chief executive officer or other top executive, defense counsel is forced into an immediate strategic decision: is the case too insignificant or the noticed deponent too far removed from the facts of the case for the deposition to proceed, or could the executive tell a story beneficial to the defense that could discourage plaintiff s counsel and bring the case to a quicker conclusion? Important considerations in deciding whether to proceed with the deposition of a top executive include the inability to prepare the executive properly due to his or her busy schedule, subjecting the executive to potential harassment, and causing detriment to the client s business by monopolizing the executive s time. In light of these considerations, in-house counsel may conclude that the inconvenience to the executive and Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 181

16 to the corporation outweighs any benefits that could be obtained from the deposition. Once that decision is made, defense counsel is confronted with the issue of how to respond to the deposition notice or subpoena. First, counsel for the corporation should always attempt to confer with opposing counsel regarding a top executive s deposition. It is possible that opposing counsel will agree to a less intrusive method of discovery, or agree to depose some lower-level employees prior to deposing the top executive. If, however, such counsel will not agree, the corporation s counsel will need to seek intervention of the court pursuant to Federal Rule 26. In Abarca v. Merck & Co., the court noted that [v]irtually every court that has addressed deposition notices directed at an official at the highest level or apex of corporate management has observed that such discovery creates a tremendous potential for abuse or harassment. No. 1:07-cv-0388, 2009 U.S. Dist. LEXIS 71300, at *22 (E.D. Cal. July 31, 2009) (citations omitted) (emphasis added). Accordingly, [w]hen a party seeks the deposition of a high-level executive (a so-called apex deposition), the court may exercise its discretion under the federal rules to limit discovery. Groupion, LLC v. Groupon, Inc., No MEJ, 2012 U.S. Dist. LEXIS 12684, at *5 (N.D. Cal. Feb. 2, 2012). See also Naylor Farms, Inc. v. Anadarko OGC Co., No. 11-cv , 2011 U.S. Dist. LEXIS (D. Colo. June 27, 2011) ( Under what has become known as the apex doctrine the Court may protect a high level corporate executive... ). Federal Rule 26(b)( 1) establishes the framework for discovery and provides that [p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party s claim or defense... The breadth of Rule 26(b)(1) is narrowed by 26(b)(2), which states, [o]n Motion or on its own, the Court must limit the frequency or extent of use of the discovery otherwise allowed by these rules... if it determines that (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome or less expensive; (ii) the party seeking discovery has had ample time to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering... the importance of the proposed discovery in resolving the issues. The Advisory Committee s Note states that [t]he [1993] Revisions to 26(b)(2) [were] intended to impose additional restrictions on the scope and extent of discovery. Rule 26(b)(2) gives a court greater discretion in structuring or limiting discovery and thus defendants have a greater chance of succeeding in opposing the deposition of a corporate executive officer Richard W. Davis, Difficult Task: Defending Defendant s President/CEO at Deposition or Trial DRI Trial Techniques Seminar. The appropriate procedural mechanism for seeking the relief enumerated in 26(b)(2) is a protective order, which a court may enter when justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). The Michigan Court of Appeals recently described the apex rule as acting not to shield high ranking officers, but to sequence discovery and encourage using less burdensome methods. Alberto v. Toyota Motor Corp., 289 Mich. App. 328 (2010). See also State ex rel. Mass. Mut. Life Ins. Co. v. Sanders, 724 S.E.2d 353 (W. Va. 2012). This interpretation presents an alternative understanding of the protections provided by Rule 26(b) (2), which narrows the scope of discovery, in that courts may begin to focus less reliably on protect[ing] a party or person from annoyance, embarrassment, oppression, or undue burden or expense when entering or denying protective orders for executives. Fed. R. Civ. P. 26(c). Rather than seeking to unburden a corporate officer, the court s language suggests that the key interest in denying an executive deposition is maintaining efficient discovery. As a strategy, counsel for the cor- 182 Defending Drug and Medical Device Litigation: A Primer for Young Lawyers September 2014

17 poration should consider characterizing opposition to an executive deposition as an attempt to streamline the discovery process instead of as an attempt to limit the plaintiff s discovery. J. Richard Moore and Paul V. Lagarde, Handling the Apex Deposition Request, FDCC Quarterly, Volume 57, Number 2, Winter 2007, 153. Counsel should also avoid focusing the response on how important the executive is or how inconvenient a deposition would be for the executive, as these details may not capture a judge s sympathies. Id. at Strategy For Limiting APEX Depositions Depending on the jurisdictions, four primary arguments exist for barring or limiting the scope of an executive s deposition: the executive s lack of personal, unique or superior knowledge about the facts of the case; the availability of less intrusive or alternative discovery methods to obtain the same information; the duplicative nature of the executive s testimony with discovery already obtained in the case; and improper motives of the plaintiff for noticing the deposition. Charles F. Press and Erika C. Collins, How To Avoid, Control, Or Limit Depositions Of Top Executives. Defense Counsel Journal, Vol. 63, No. 2, p. 214 (April 1996). a. Lack of Personal, Unique or Superior Knowledge The most common ground for limiting or barring a deposition is that the executive lacks any personal knowledge about the facts of the case. See Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir. 1989) (upholding district court s grant of protective order to bar plaintiff from deposing defendant s chief executive officer who lacked knowledge of any relevant facts); Conti, 326 F. App x at 905 (reversing grant of protective order because record demonstrated CEO had personal knowledge of discoverable matters); Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995) (upholding district court s grant of protective order on grounds that, inter alia, defendant s president submitted an affidavit that he lacked personal knowledge of the facts of plaintiff s case). The executive s lack of knowledge should be demonstrated to the court with an affidavit from the executive. Colonial Capital Co. v. Gen. Motors Corp., 29 F.R.D. 514, 518 (D. Conn. 1961). 14 In some jurisdictions, courts require not only that an executive have personal knowledge regarding circumstances for which he or she is being deposed, but also that the executive s knowledge be superior to, or unique from, that of more accessible potential deponents. Reif v. CNA, 248 F.R.D. 448, 451 (E.D. Pa.2008) (recognizing and accepting other courts rulings disallowing depositions of corporate executives because the executives lacked superior or unique personal knowledge ); Baine v. Gen. Motors Corp., 141 F.R.D. 332 (M.D. Ala. 1991). Specifically, the court in Baine noted: When a party seeks to depose high-level decisionmakers who are removed from the daily subjects of the litigation, the party must first demonstrate that the would-be deponent has unique personal knowledge of the matter in issue. Moreover, the unique personal knowledge must be truly unique, a deposition may not be allowed where the information could be had through interrogatories, deposition of a designated spokesperson, or deposition testimony of other persons. 141 F.R.D. at 334 (finding that plaintiffs had not demonstrated the executive s superior or unique personal knowledge ). See also, Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259 (N.D. Cal. 2012) (either denying or severely limiting the depositions of several major executives, finding that courts consider whether the depo- Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 183

18 nent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and whether parties have exhausted other less intrusive discovery methods); Guzman v. News Corp., No. 09 Civ. 9323, 2012 U.S. Dist. LEXIS (S.D.N.Y. June 29, 2012) (finding that an executive, even as a direct supervisor, does not necessarily have unique knowledge and should therefore not be deposed). But see Conti, 326 F. App x at 905 (finding that an executive could be deposed because he had personal knowledge, with no discussion of whether there were other, non-executive, potential deponents with the information); Carr v. Double T Diner, 272 F.R.D. 431 (D. Md. 2010) (allowing an executive deposition because the executive may have relevant knowledge with no consideration of whether the knowledge is unique or superior to that of other potential deponents). b. Public Statements When particular, potential litigation is anticipated, the corporate client must anticipate the likelihood in today s climate that an APEX deposition will be sought. Thus, it must weigh carefully the pros and cons of an APEX witness making public statements about the subject matter of the litigation as such statements can be used to rebut any argument that such witness has no personal or unique knowledge about the subject matter of the litigation. While many courts recognize that being the public face of a corporation requires making statements that may not be representative of an executive s personal knowledge, other courts have used an executive s public statements to support a deposition request. In Doble v. Mega Life & Health Ins. Co., the court found that an executive s public statements were part of his job as the public face of the company, and did not represent personal participation in relevant events. No. C CRB, 2010 U.S. Dist. LEXIS (N.D. Cal. May 18, 2010). See also Naylor Farms, Inc. v. Anadarko OGC Co., No. 11-cv-01528, 2011 WL , at *4 (D. Col. June 27, 2011). Additionally, the Doble court rejected the argument that the executive s ceremonial signature on certain documents and generalized motivational admonitions were representative of any unique knowledge. Id. at *5. Alternatively, granting a motion to compel an executive deposition, the court in In re TVA Ash Spill Cases found that an executive s public statements could be used as evidence of his specialized knowledge in determining whether a deposition was appropriate WL , at *1 (E.D. Tenn. July 13, 2010). The court found that the executive s testimony to a congressional committee on the plant ash disaster at issue, along with a declaration admitting generalized knowledge of TVA operations, were sufficient evidence to allow the executive to be deposed. Id. Executives regularly make public statements regarding their organizations, but they should remain guarded with respect to the content of those statements because plaintiffs attorneys may seek to argue that an executive s public statements are evidence of the executive s personal knowledge, thereby making the executive available for deposition. c. Alternatives to APEX Depositions While lack of personal knowledge, as well as the other above-enumerated grounds are viable bases for opposing the deposition of a top executive, [i]t is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error. Salter v. Upjohn, 593 F.2d 649, 651 (5th Cir. 1979). Thus, corporate counsel should always present the court with alternatives to prohibiting entirely a requested deposition. Reasonable alternatives may include an order that the executive first be served written interrogatories to determine if the information can be provided in written form. Coleman v. Gen. Elec. Co., No. 94-cv-4740, 1995 U.S. Dist. LEXIS 8186, *9 (E.D. Pa. June 8, 1995). The court can also require that the plaintiff depose lower level executives or other employees to determine if the same information is available without deposing the top executive. The court can always control the schedule of depositions, and can require plaintiff to take other depositions of persons with knowledge before the executive. Salter, 593 F.2d at 650. If the deposition is to occur, the court can limit the length of the deposition. 184 Defending Drug and Medical Device Litigation: A Primer for Young Lawyers September 2014

19 Dynapower Sys. Corp. v. Ross, 1966 WL (S.D.N.Y. Oct. 31, 1966). The court can also limit the subject matter and the areas of inquiry. Tri-Star Pictures, Inc. v. Unger, No. 88 Civ. 9129, 1997 U.S. Dist. LEXIS 2458, at *25 (S.D.N.Y. Mar. 6, 1997) (citing Werthheim Schroder & Co., Inc. v. Avon Prods. Inc., 91 Civ. 2287, 1995 U.S. Dist. LEXIS 79, (S.D.N.Y. Jan. 9, 1995)). It is incumbent upon counsel opposing the deposition to develop a defense strategy reasonably calculated to protect the interests of the executive and the corporation while recognizing that the party seeking the deposition is probably entitled to the discovery in some form. If a good faith conference with plaintiff s counsel affords no relief, counsel should apply for a protective order with a motion that sets forth reasonable alternatives to the requested discovery. III. Conclusion In the absence of proper preparation and precautions, the 30(b)(6) deposition presents a potential, significant hazard for a corporation. Deposing parties often attempt to shift the cost of discovery to a corporation by noticing a 30(b)(6) deposition, designating areas of inquiry covering all aspects of the litigation, in an attempt to force the corporation to investigate both the claims and defenses in the action, and to report the results of such investigation in the course of the corporation s deposition. The answers provided by the corporate designees will be binding on the corporation. Therefore, counsel for the corporate party must be able to identify these tactics and take appropriate action in order to prepare and defend a 30(b)(6) deposition properly. Counsel must also be cognizant of obligations to investigate the designated areas of inquiry and to educate the corporate designee to testify as to these subjects. This process should begin well before a 30(b)(6) notice is received. Indeed, from the very beginning of any litigation involving a corporation, counsel should begin the tasks of (1) investigating the claims and defenses, not just from current employees, but from all sources that might be considered reasonably available and (2) identifying corporate employees with relevant knowledge who may be utilized as a 30(b)(6) witness. In complex cases, preparation of corporate witnesses likely should begin before the notice of deposition is received. Upon receipt of a 30(b)(6) notice, counsel must make a determination as to whether a protective order should be sought. In the absence of a protective order, a corporate designee is obligated to respond to questions on the areas of inquiry for which he or she is proffered. Where the designated areas of inquiry lack sufficient particularity, would require counsel to marshal all of its factual proof in order to prepare a witness adequately to testify, or seeks discovery that is either improper or is better suited for other discovery devices, counsel must seek a protective order. Finally, counsel must be cognizant that, once the process of investigation and witness preparation has begun, he or she is teetering on a slippery slope that may allow discovery of one s work product. Hence, in preparing and educating a corporate witness, as required by Rule 30(b)(6), counsel must be vigilant in protecting otherwise privileged information. As to attempts to depose APEX corporate witnesses, resisting such depositions will likely be more successful if the motion is characterized as an effort to streamline discovery instead of as a way to prevent an executive from being inconvenienced. Executives should make public statements with caution to avoid creating the impression that they possess unique personal knowledge, which would open them up to deposition. Affidavits attesting to lack of knowledge should explicitly and unequivocally state that the executive lacks knowledge, otherwise they may be deemed insufficient. Finally, corporate counsel should emphasize that the knowledge requirement to depose an executive is more than simply personal knowledge but is superior or unique knowledge; Potential Pitfalls of FRCP 30(b) (6) and 30(b) (1) in Drug & Device Litigation Deming 185

20 BIBLIOGRAPHY (not necessarily definitive) In preparing this paper, the author has referred to the following articles and cases. While not exhaustive, they provide additional pertinent information regarding discovery directed to the corporate defendant. ARTICLES: Campbell, James M., Corporate Responses To Massive Discovery Demands, DRI Seminar Materials Products Liability (February 1996). Cymrot, Mark A., The Forgotten Rule, 18 Litigation No. 3, p. 6 (Spring 1992). Davis, Richard W., Difficult Task: Defending Defendant s President/CEO at Deposition or Trial, Dill Trial Techniques Seminar. Elbein, Bradley M., How Rule 30(b)(6) Became A Trojan Horse: A Proposal For A Change, FICC Quarterly 365 (Spring 1996). Harkins, P.N., Ill, How To Mount An Effective Defense Of Company Employee Depositions, 58 Defense Counsel Journal No. 2, p. 153 (April 1991). Herlihy, Thomas M., Some Further Thoughts On Preparing Company Witnesses For Depositions, Dill Life & Health News p. 5 (May 1993). Massey, M. Minnette, Depositions of Corporations: Problems and Solutions - Fed. R. Civ. P. 30(b)(6), 1986 Ariz. St. L. J. 81(1986). Preuss, Charles F. and Collins, Erika C., How To Avoid, Control Or Limit Depositions Of Top Executives, Defense Counsel Journal, Vol. 63, No. 2, p. 213 (April 1996). Schoemaker, Donald K., Document Collection, Review, and Production, For The Defense, p. 9 (January 1995). Winton, James C., Corporate Representative Depositions Revisited, 65 Baylor L. Rev. 938 (2013). Endnotes 1 This Rule currently provides that: 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... The persons designated must testify about information known or reasonably available to the organization... Fed. R. Civ. P. 30(b)(6). 2 Jacobs Vehicle Equip. Co. v. Pac. Diesel Brake Co., No. 96-MC-128, 1996 U.S. Dist. LEXIS 17776, at *6-7 (E.D. Pa. Nov. 27, 1996) (where 30(b) (6) notice would require non-party to identify documents responsive to 40 separate requests and provide testimony on 8 broad topics of inquiry, notice was not lacking in particularity although the areas of inquiry may have been overbroad); Graco Children s Prods. v. Century Prods. Co. No. CIV. A , 1996 U.S. Dist. LEXIS 10356, at *96-97 (E.D. Pa. July 23, 1996) (Rule 30(b)(6) notice was sufficiently particularized which requested (1) testimony regarding steps taken by defendant in obtaining counsel s opinions respecting patents, documents and things supplied by defendant to counsel in making evaluation of infringement, (2) communications with counsel regarding preparation of counsel s opinion regarding infringement, and (3) reliance on counsel s opinion); Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, (M.D.N.C. 1989) (plaintiff s 30(b)(6) request for person knowledgeable about defendant s claims processing and claims records, general file keeping, storage and retrieval systems 186 Defending Drug and Medical Device Litigation: A Primer for Young Lawyers September 2014