Below is a sample 30(B)(6) deposition subpoena. This mechanism allows plaintiffs' lawyers to obtain discovery against a corporation by specifying topics on which testimony is sought, requiring the organization to designate witnesses to provide testimony on these subject that may bound the corporation at trial.
This same procedure is available under in Maryland state court under Maryland Rule 2-412(d) based on the federal rule.
You can find more example deposition notices for both plaintiffs and defendants here.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
JAMES T. KIRK,
I-FLOW CORPORATION, et al.
Case No ___________________
PLAINTIFF’S NOTICE OF 30(b)(6) DEPOSITIONPlaintiff’s Notice of F.R.C.P. 30(B)(6) Corporate Deposition(s) of Defendant I-Flow, Corporation
TO: DEFENDANT, I-FLOW CORPORATION
and ALL COUNSEL OF RECORD
FROM: JAMES T. KIRK
PLEASE TAKE NOTICE that, under Federal Rule of Civil Procedure 30(b)(6), Plaintiff James T. Kirk, notices the deposition of I-Flow Corporation as an organization on the topics detailed below. This deposition may be videotaped, and Plaintiff provides notice to Defendant I-Flow and the other parties to this action that the deposition may be used at the time of trial. Defendant I-Flow shall identify the persons who will speak on its behalf on each topic below at least seven days before the deposition(s). The taking of this deposition may be adjourned from day to day until completed, and may occur over several days if more than one person is necessary to provide the information requested.
DATE OF DEPOSITION: September 25, 2015
LOCATION OF DEPOSITION: MILLER & ZOIS, LLC
1 South St, #2450
Baltimore, MD 21202
COURT REPORTERS AND VIDEOGRAPHERS: LAD REPORTING
10 NORTH CALVERT STREET, SUITE 141
BALTIMORE, MARYLAND 21202
As used in this Notice, the term “document” means, without limitation, the following terms, whether printed or recorded or reproduced by any other mechanical process, or written or produced by hand: agreements, communications, State and Federal governmental hearings and reports, correspondence, telegrams, memoranda, summaries or records of telephone conversations, summaries or records of personal conversations or interviews, diaries, graphs, reports, notebooks, note charts, plans, drawings, sketches, maps, summaries or records of meetings or conferences, summaries or reports of investigations or negotiations, opinions or reports of consultants, radiographs, photographs, motion picture films, brochures, pamphlets, advertisements, circulars, press releases, drafts, letters, any marginal comments appearing on any document, and all other writings.
As used in this Notice, the term “Defendant” means, without limitation, the responding party.
As used in this Notice, the term “You” means the corporate defendant answering these requests, and any person acting on that corporation’s behalf.
As used in this Notice, the term “pain pump” shall mean a portable or disposable anesthetic drug delivery system with a medication reservoir, a pump and, at least, one catheter for medication delivery to a localized part of the body and which was intended or known by you to be used in orthopedic joint surgery, or which was sold by you to buyers who planned to use it in orthopedic joint surgery.
When you are asked to “identify” a particular employee or person, you are to provide that person’s full name, current or last job title, and current physical work address if still employed by you; if the person is not still employed by you, provide the last known address, phone numbers, e-mail address or other available contact information.
You are advised that you must designate one or more officers, directors, managing agents, or other persons who will testify on your behalf regarding the matters listed in Schedule A which are known or reasonably available to Defendant I-Flow Corp.
- The insurance policies and coverage (whether self-insurance, excess insurance, primary insurance, and secondary insurance) available to satisfy all or part of any claims brought against I-Flow Corporation for injuries caused by its pain pumps for all years from 1995 to present.
- The financial coverage available or remaining on any policy of insurance to the extent that any of the insurance policies are "wasting policies" (insurance coverage that is depleted by attorney’s fees), or otherwise have been reduced by the payment of claims, or for any other reason.
- The current net worth of the company, including but not limited to the assets and liabilities of the company.
DATED: ________ ____, 2015
Ronald V. Miller, Jr.
Miller & Zois, LLC
1 South St, #2450
Baltimore, MD 21202
(410) 760-8922 (Fax)
Attorneys for Plaintiffs
How a Rule 30(b)(6) Deposition Works
The Federal Rules and the Maryland Rules allow parties obtain discovery for trial with a variety of mechanisms. At the top of the food chain of these possible discovery tools is depositions.
Mitt Romney's famous quote in 2012 notwithstanding, corporations are not people. So when you depose company employees, you often get what the creators of Rule 30(b)(6) called “bandying.” This is when the company's employees all deny individual knowledge facts that are certainly known to the company. But you just do not have the right person. (Heads up: you can still face this problem in some cases where the "company" is an Enron-like maze of related corporations. In this case, you need to get deposition notices for every possible entity.)
Rule 30(b)(6) was devised 45 years ago to solve this problem. The Rule allows a part to name the corporation as deponent and identify the topics of inquiry for the testimony. So the deposing party must give a notice of deposition, like the one above, that sets forth the subject matter of the deposition with “reasonable particularity.”
The corporation could hire Leonardo DiCaprio to answer the questions. There are no restrictions on who it can designate. But, more typically, they will choose one or more employees to testify to speak to these topics. The answer given to these questions can bind the corporation at trial.
Some Key 30(b)(6) Cases
- Murphy v. Kmart, 255 F.R.D. 497, 506 (D. S.D. 2009). The court honed in on the reasonable particularity” we talked about above, noting the importance of discreet topics because companies can "face sanctions for failing to adequately produce and prepare its deponents.'
- Sanyo Laser Products v Arista Records., 214 F.R.D. 496 (S.D. 2003). The court stated that the rule is "designed to prevent ‘bandying,’ the practice of presenting employees for their deposition who disclaim knowledge of facts known by other individuals within the entity.
- Black Horse Lane v. Dow Chem., 228 F.3d 275, 304 (3d Cir. 2000). This case provides this epic line: "In reality, if a Rule 30(b)(6) witness is unable to give useful information he is no more present for the deposition than would be a deponent who physically appears for the deposition but sleeps through it.”
- Webb v. District of Columbia, 189 F.R.D. 180 (D.D.C. 1999). The court reinstated a default judgment in a racial discrimination case for a host of infractions, including the failure to produce Rule 30(b)(6) witnesses who could speak to the designated topics. . The court held that defendant “failed miserably in its duties under Rule 30(b)(6) to proffer witnesses capable of testifying to matters known or reasonably available to the organization."
- Thomas v. Hoffman-LaRoche, 126 F.R.D. 522, 525 (N.D. Miss. 1989). The court sanctioned the defendant because it did not produce witnesses to speak to designed issues in 30(b)(6) notice.
In this patent infringement action brought by Trustees of Boston University (“BU”), BU alleged that defendants infringed U.S. Patent No. 5,686,738 (the “‘738 Patent”), which centers on light emitting diodes (“LEDs”) and the technology behind them. BU moved for an order compelling defendant Epistar Corporation (“Epistar”) to designate new Rule 30(b)(6) deponents on certain deposition topics.
As explained by the court, Rule 30(b)(6) requires the noticing party to describe the topics of examination with “reasonable particularity.” Fed. R. Civ. P. 30(b)(6). If the noticing party does not describe the topics with sufficient particularity or if the topics are overly broad, the responding party is subject to an impossible task. McBride v. Medicalodges, Inc., 250 F.R.D. 581, 584 (D. Kansas 2008). To avoid liability, the noticed party must designate persons knowledgeable in the areas of inquiry listed in the notice. Id. Accordingly, if the noticed party cannot identify the outer limits of the topics noticed, compliant designation is not feasible. Id.; see also Newman v. Borders, Inc., 257 F.R.D. 1, 3 (D.D.C. 2009).
The court then found that various topics sought by BU were not proper. “Here, Topics 2, 3, 5, 6, 9, 20, and 22 are not described with sufficient particularity, and are vague and/or overly broad. For example, Topics 2, 3, 5 and 6 seek testimony regarding ‘all facts related to’ the relationship between Epistar and another entity. First, this Court has previously observed in this case that discovery requests seeking information ‘related to’ a particular topic are overly broad because they do not provide a basis upon which an individual or entity can reasonably determine what information may or may not be responsive.”
The court also found fault with additional topics that called for detailed factual information pertaining to profit margins, costs and revenues. “Topic 20 seeks testimony without date limitation regarding ‘[a]ll financial information, documentation, records and/or memoranda concerning and/or related to the ACCUSED Instrumentalities.’ Similarly, Topic 22 asks the designated witness to state, for each accused product, from 2006 to the present, the costs, expenses on an itemized basis, gross profit margin, operating profit margin, incremental profit margin, and revenues. It also asks the witness to identify all supporting documents. It is not reasonable to expect one or more witnesses to remember and testify about every one of these facts.”
Finally, the court denied the motion to compel on a topic where the information could better be obtained through interrogatory responses. “Topic 29 would require Epistar to produce a witness or witnesses to testify about the factual basis for Epistar’s contention that its products do not infringe. A party may properly resist a Rule 30(b)(6) deposition on the grounds that the information sought is more appropriately discoverable through contention interrogatories and/or expert discovery. SmithKline Beecham Corp., 2004 WL 739959, at *2. A Rule 30(b)(6) deposition is an overbroad, inefficient, and unreasonable means of discovering an opponent’s factual and legal basis for its claims.”
Trustees of Boston University v. Everlight Electronics Co., LTD., Case No. 12-cv-11935-PBS (D. Mass. Sept. 24, 2014)
The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.