36 Trial Lawyer • Summer 2023 Deposing the Organization Continued from p 35 of the corporation. Taylor, 166 FRD at 361; accord Rosenruist-Gestao E Servicos LDA v. Virgin Enterprises Ltd., 511 F3d 437, 445 (4th Cir 2007) (“In a Rule 30(b)(6) deposition, there is no distinction between the corporate representative and the corporation”). Therefore, the rule requires designated witnesses “to review all matters known or reasonably available to [the corporation] in preparation for the deposition.” Couch v. Wan, CV F 081621 LJO DLB, 2012 WL 4433470 (ED Cal Sept. 24, 2012) (internal quotation marks and alterations omitted); accord T & W Funding Co. XI, L.L.C. v. Pennant RentBABCar, 210 FRD 730, 735 (D Kan 2002). The corporation must prepare its designated witnesses using all available sources of information, including “documents, present or past employees, or other sources.” Wilson, 228 FRD at 528; see also In re Indep. Service Orgs. Antitrust Litig., 168 FRD 651, 653 (D Kan 1996) (“[A corporation] cannot meet its discovery obligations by sticking its head in the sand and refusing to look for the answers and then saying it does not know the answer.”); Taylor, 166 FRD at 361 (requiring the organization to prepare its designated witness by using “documents, past employees, or other sources”). The organization's duty to prepare its witnesses applies even when doing so is “difficult” and “time consuming.” BuycksRoberson v. Citibank Federal Savings Bank, 162 FRD 338, 343 (ND Ill 1995); accord Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 FRD 33, 37 (D Mass 2001) (“Even if the documents are voluminous and the review of those documents would be burdensome, the deponents are still required to review them in order to prepare themselves to be deposed.”). Responsive knowledge In sum, “the organization is expected to create a witness or witnesses with responsive knowledge,” Wilson, 228 FRD at 528, and those witnesses will be the organization’s “official spokespersons” on those topic areas in the litigation, Sony Corp. of Am. v. Universal City Studios, Inc., 464 US 417, 444 n 24 (1984). An “I don’t know” response is appropriate when it truthfully indicates that the entire organization has no knowledge of the information called for by the question. In that situation, a plaintiff has a right to insist that the answers given by the corporation’s spokesperson during its deposition are binding on the corporation and the organization should be prohibited from offering contrary evidence at trial. Wilson, 228 F.R.D. at 530 (“[T]he testimony given by the non-responsive deponent (e.g., ‘I don’t know’) may be deemed ‘binding on the corporation’ so as to prohibit it from offering contrary evidence at trial”). Dorsey v. TGT Consulting, LLC, 888 F Supp 2d 670, 685 (D Md 2012) (“deemed ‘binding on the corporation’ so as to prohibit it from offering contrary evidence at trial.’”). Starlight Int’l, Inc., v. Herlihy, 186 FRD 626, 639 (D Kan 1999) (“binding answers on behalf of the corporation”). As a practical matter, not all Oregon trial court judges are familiar with this rule and the relevant case law. A motion in limine may be needed to raise these issues before trial. Some trial judges have taken a middle ground, allowing contrary evidence, but only by the same witness, so that the witness can be impeached with the transcript of their own testimony. On the other hand, if an “I don’t know” response does not reflect the actual knowledge of the organization, then the organization has violated the rules and produced an unprepared witness. “Producing an unprepared witness is tantamount to a failure to appear.” Taylor, 166 FRD at 363; accord Capers, 6:11-CV-457-ORL-28, 2012 WL 5830588 (“If that [designated] agent is not knowledgeable about relevant facts . . . then the appearance is, for all practical purposes, no appearance at all.”) (quoting Resolution Trust Corp. v. So. Union Co., Inc., 985 F.2d 196, 197 (5th Cir 1993)); see also Black Horse Lane Assoc., L.P. v. Dow Chemical Corp., 228 F3d 275, 304 (3d Cir 2000) (“‘[p]roducing an unprepared witness is tantamount to a failure to appear’ that is sanctionable”). If the defendant fails to adequately prepare a witness, the plaintiff may seek appropriate discovery sanctions. See, e.g., Taylor, 166 F.R.D. at 363 (“[I]nadequate preparation of a Rule 30(b)(6) designee can be sanctioned based on the lack of good faith, prejudice to the opposing side, and disruption of the proceedings.”); Mercado v. HFC Collection Ctr., Inc., 3:12-CV-122-J-12JBT, 2012 WL 4903312 (M Dist Fla Oct. 15, 2012) (“If the designated deponent cannot answer questions regarding the subject matter as to which he is designated, then ‘the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions.”); King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 FRD 475, 476 (S Dist Fla 1995) (same). Conclusion In Chuck’s case, the insurance company and its designated witnesses generally knew the answers to the key questions. Those answers were the backbone of Chuck’s trial, which resulted in a multi-million dollar verdict against his insurance company for needlessly exposing Chuck to a devastating judgment against him. Don Corson is a partner at The Corson & Johnson Law Firm, 940 Willamette St., Ste. 500, Eugene, OR 97401. He represents people injured or killed by defective products, industrial accidents, medical negligence, and trucking and other major vehicle collisions. He is a past president of OTLA and contributes to the OTLA Guardians of Civil Justice at the Guardians Club level. He can be reached at 541-4842525 or dcorson@corsonjohnsonlaw.com.
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