Trial Rules can be your friend and your opponent’s worst enemy.
One of the better trial rules for a slip-and-fall attorney (premises liability) is the Rule 30(b)(6) deposition. Unlike other depositions, the questions are noticed in advance to the responding organization’s attorneys, who must then designate the appropriate witnesses who can give answers (after a dutiful search) to those questions presented. This can result in multiple designees at one setting giving answers to the various questions or it can result in one witness who gathers all the facts into a tidy package.
Unfortunately, the Rule 30(b)(6) isn’t often used (for whatever reasons) and defense lawyers are particularly devoid of practical knowledge (probably because they rarely use them due to the requirement that an “organization” and not individuals can be deposed in this manner).
This routinely results in baseless, meritless and annoying objections filed by defense lawyers in efforts to stymie acceptable, legitimate discovery by the plaintiff’s attorney. Ironically, defense lawyers don’t recognize in filing these objections that the Rule 30(b)(6) deposition can actually help them by reducing the number of depositions and settings.
Regardless, I get annoyed and frustrated by continuing attempts to misguide Judges in Indiana as to the Rule 30(b)(6) deposition and what it can and cannot be used for. So often, these defense lawyers posit evidentiary trial objections rather than discovery objections (which is much broader).
Consequently, I have attached below a common response I file when defense lawyers object to discovery based upon evidentiary objections (like “answers would call for a legal conclusion”) and pseudo-privilege arguments that “mental impressions” of counsel would be revealed.
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PLAINTIFF’S RESPONSE TO MOTION FOR PROTECTIVE ORDER
Comes now Plaintiff,(hereinafter ), by counsel, Jeff Shaw of Shaw Law, and files her Response to Motion for Protective Order filed by Defendant, CALHOUN STORE, INC., d/b/a GET 2 GO 16 (hereinafter “Calhoun”). For her Response, Plaintiff would state the following legal and factual support.
ISSUE PRESENTED
Is a Plaintiff permitted in a deposition under Indiana Rule of Trial Procedure 30(b)(6) to ask the corporate designee the factual basis for affirmative defenses, contentions and denials?
SHORT ANSWER
Yes. Asking questions about an organization’s basis for their affirmative defenses, denials, and contentions is appropriate in a Rule 30(b)(6) deposition. Facts and documents about an organization’s claims and defenses are relevant, thus parties are allowed to discover them under Rule 26 of the Indiana Rules of Procedure. Indiana courts look to federal case decisions for guidance in interpreting its own rules of civil procedure — and federal courts have universally held such inquiries to be permissible. In fact, federal courts have expanded permissible topics in a 30(b)(6) deposition to include more than just affirmative defenses, denials and contentions – legal positions, interpretations, subjective beliefs and opinions are discoverable, too.
BACKGROUND/LAW
Plaintiff adopts the Defendant’s “II. Background” portion of its Motion for Protective Order as if set forth herein as to the filings in this case.
A brief background of Rule 30(b)(6) of the Indiana Rules of Trial Procedure will help explain how Defendant Calhoun misunderstands the nature of a 30(b)(6) deposition and what is actually being sought by the Plaintiff. A 30(b)(6) deposition is unlike a deposition of an individual.
As explained succinctly in the book “30(b)(6), Deposing Corporations, Organizations & the Government” written by Mark Kosieradski (Trial Guides, LLC, 2016):
“Depositions typically ask any given witnesses what they know. The problem in litigation involving corporations…is that any given witness probably does not have the entire institutional knowledge of the corporation…As a result, the individual person’s testimony is often incomplete or conflicts with others’ recollections…Conflicting testimonies makes it impossible for (the lawyer) to know, until the time of trial, which version of the facts the organization will adopt. The solution lies in a special form of deposition: 30(b)(6) depositions by issue designation…focus(ing) on information…from the organizations as a whole, rather than knowledge of one person.”[1]
Further:
“The organization…may designate multiple people to respond to the matters…(and) has a duty to do so if they need multiple people to respond to all matters of examination…However, regardless of the number of witnesses this organization designates, the Rule 30(b)(6) depositions counts as a single deposition.[2]
And:
A deposition under Rule 30(b)(6) is substantially different from a witness’s deposition as an individual…a 30(b)(6) witness testifies as a representative of the entity. The 30(b)(6) witness’s answers bind the entity, and the entity is responsible for producing a witness who is prepared to provide all the relevant information that the entity knows or should know.[3]
Indiana Rules of Trial Procedure
Rule 30. Depositions Upon Oral Examination
(B) Notice of examination: General requirements–Special notice–Non-stenographic recording–Production of documents and things–Deposition of organization.
(6) A party may in his notice name as the deponent an organization, including without limitation a governmental organization, or a partnership and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, executive officers, or other persons duly authorized and consenting to testify on its behalf. The persons so designated shall testify as to matters known or available to the organization. This subdivision (B)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
Rule 26. General provisions governing discovery
(B) Scope of discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
RELIEF SOUGHT BY DEFENDANT
Defendant Calhoun applies for Protective Order in its motion (filed H.I.) and asks this Court for two separate and distinct remedies: (1) an order directing Risheg’s counsel to refrain from asking certain questions and (2) a pre-emptive ruling by this Court as to “legal obligations and duties of a corporation”. (Although this remedy is not within the purview of a Protective Order, but rather more akin to a Motion for Partial Summary Judgment, Risheg will address this request below).
LEGAL ARGUMENT
Defendant Calhoun asks this Court for a Protective Order prohibiting questions in a deposition regarding certain topics. The motion appears to allege five separate grounds:
- Topics concern improper areas of “pure legal issues”;
- Preparing a designee (or designees) above would be “extremely burdensome and onerous”;
- Topics would be an improper attempt to “obtain the mental impressions of Defense Counsel”;
- Topics would “drive a wedge between the Defendant and Defense Counsel”; and
- Topics are a “trick” and “another ploy” to limit evidence and “gamesmanship.”
Rule 26 of the Indiana Rules of Procedure Permits Questions about Affirmative Defenses and Positions and the Factual Bases for Them
To better understand Defendant Calhoun’s position, it is important we first dispense with overly-generalized descriptive terms that do not apply to objections to discovery. “Pure legal issues” is not a properly recognized objection to discovery under the Rules of Procedure in Indiana. Perhaps, Defendant Calhoun mistakenly conflates the well-known trial objection of asking a witness for a legal conclusion with the proper and permissible discovery examination of a corporate designee for the factual bases of its affirmative defenses. In fact, most of Defendant Calhoun’s Motion for Protective Order appears to make the same mistake throughout its analysis – wrongfully equating trial evidence objections with permissible topics of discovery.
For purposes of clarity, some definitions are needed to better understand the issues. “Contentions” are allegations or responses in pleadings that the parties base their claims and defenses upon. “Affirmative defenses” are legal positions in which the defendant says there is no basis to the claim. “Denials” are a denial of any fact set forth in a legal complaint.
With regard to the Indiana Rules of Procedure, discovery is considered liberal and questions about the bases for affirmative defenses are clearly relevant to the case. Consequently, when an organization’s defenses are relevant, parties are allowed to discover the facts underlying those defenses under Rule 26.
Although it is unclear if Defendant Calhoun actually claims a protective order is necessary because the answers might be inadmissible at trial, Rule 26 provides guidance to the contrary. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.[4] The scope of discovery is broader than whether the evidence will ultimately be admissible at trial. Trial Rule 26(B)(1) provides that “Parties may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action, …. [or] reasonably calculated to lead to the discovery of admissible evidence.” Consequently, Defendant Calhoun’s request for protective order must fail based upon any relevancy/inadmissibility grounds under Indiana law.
Federal Case Law Permits 30(b)(6) Questions about Affirmative Defenses and Much, Much More including Opinions, Beliefs and Legal Position of any Organization
Moreover, federal case law also supports the conclusion that 30(b)(6) examinations into the facts supporting an organization’s affirmative defenses is proper. Federal court cases have uniformly required corporate designees to testify about the factual bases for its affirmative defenses.[5] And it’s not just affirmative defenses — federal courts have required parties to name Rule 30(b)(6) designees to testify about denials in Answers. In fact, federal courts have ruled that the factual basis for an organization’s denials, affirmative defense, and contentions is permissible during a 30(b)(6) deposition.[6] (In the absence of specific case law interpreting any trial rule, Indiana courts look to federal decisions for guidance in interpreting its rules of civil procedure with similar language).[7]
And that’s just the beginning. For over 30 years, federal courts have not limited 30(b)(6) areas of inquiry into an organization’s affirmative defenses, denials and contentions. Even an organization’s positions, subjective beliefs, opinions and interpretations of facts or events can be inquired into. Ever since the landmark case of United States v. Taylor, courts have universally and without exception established that Rule 30(b)(6) witnesses must present the organization’s position on the matters of examination contained in the notice.[8] This extends not only to facts, but also to subjective beliefs and opinions.[9]
It isn’t just federal case law that supports inquiry into affirmative defenses. Indiana case law has ruled that other Indiana discovery methods, like Requests for Admissions, also allow this type of inquiry. In General Motors Corporation, Chevrolet Motor Division v. Aetna Casualty & Surety Company, the Supreme Court of Indiana held that “the Indiana rule [is] more expansive than the federal rule and permits a request for admission regarding an opinion, a contention, or a legal conclusion, if the request is related to the facts of the case.”[10]
Consequently, Defendant Calhoun’s Motion for Protective Order misses the mark by ignoring over 30 years of federal law contrary to its position (yet, curiously, Defendant Calhoun doesn’t mention any of these contrary cases in its motion).
Questions About the Factual Bases for an Organization’s Affirmative Defenses Does Not Divulge “Work Product” or “Mental Impressions” or “Attorney-Client” Privilege
But, the legal analysis does not stop there. Even though both Indiana trial rules and federal case law approve of discovery concerning corporate affirmative defenses and contentions, one must make certain the answers aren’t protected by “privilege.” Although, Defendant Calhoun does not specifically cite a “privilege” anywhere in its legal analysis, its motion does mimic some language that could be considered pertaining to privilege (i.e., “mental impressions,” “driving a wedge between defendant and Defense Counsel”). But, federal case law is again contrary to any position that a privilege exists in this context.
Federal courts have uniformly rejected defense objections to 30(b)(6) depositions upon grounds of “work product.” [11] (Once again, in the absence of specific case law interpreting any trial rule, Indiana courts look to federal decisions for guidance in interpreting its rules of civil procedure with similar language.)[12]
Additionally, attorney-client privilege does not exist in the context of a 30(b)(6) (because of the duty to prepare a designee) when answering corporate positions or the factual bases for affirmative defenses. Facts that a corporation communicates to its attorney are not protected by any attorney-client privilege.[13] When a corporation or organization produces an employee to testify about corporate knowledge in response to a Rule (30(b)(6) notice, the employee must provide responsive underlying factual information, even though such information was transmitted through a firm’s corporate lawyers.[14] In addition, clients cannot refuse to disclose facts which their own attorneys conveyed to them and which the attorneys obtained from independent sources.[15]
Moreover, Defendant Calhoun fails to cite a single case to support its allegation that “mental impressions” justify the issuance of a protective order in this situation. Such an allegation without accompanying legal justification cannot succeed.
Preparing a 30(b)(6) Designee to Answers Questions about Affirmative Defenses is Not Burdensome or Onerous
Being an attorney is hard work.
It can take hours of research and preparation to zealously represent a client. Defendant Calhoun argues that such preparation for a 30(b)(6) deposition justifies a protective order because the preparation would be too “burdensome” and “onerous.” (Once again, without any legal support for this position).
Defendant Calhoun’s argument is without merit for many reasons, but the main problem is its fundamental misunderstanding of the purpose of a 30(b)(6) deposition: a single deposition that takes the place of many depositions of individuals by offering “issues” to be answered, rather than a list of prospective individuals. Consequently, an organization can designate multiple persons (or a single person who gathers all information) to answer in one setting. The organization can marshal all known facts and present one person who has conducted a thorough investigation to answer as to all positions, opinions and beliefs of the organization.
Ironically, a 30(b)(6) deposition actually reduces the work for an attorney representing an organization by eliminating the need for multiple depositions and multiple preparations.
Moreover, Defendant Calhoun fails to produce one citation wherein any court in any jurisdiction has ruled that a 30(b)(6) deposition is burdensome or onerous. In fact, the law seems to favor such depositions as the benefits inure to both sides in any litigation. The rules apply to both parties equally – a corporate plaintiff can be quizzed about the facts that support the basis for claims in a Complaint.[16] Consequently, Defendant Calhoun’s protective order based upon the ground of burden is without merit.
“Rules” of a Deposition are not a Proper Subject of a Protective Order; It is Prematurely Trying to Have This Court Make Evidentiary Rulings Which is More Akin to a Partial Summary Judgment on Things That Have Not Occurred
The 30(b)(6) deposition notice attached a preface for “legal obligations” of the witness/designee based upon applicable laws. Defendant Calhoun takes a contrary position to this settled federal case law. The contest pertains to whether the testimony by a corporate designee at a 30(b)(6) binds the organization at trial; whether an organization can supplement incomplete, evasive or unknowledgeable answers given in a 30(b)(6) at trial; and other areas.
Such a request at this juncture is premature and not appropriate for a protective order.
Any trial evidence determination is not germane to a 30(b)(6) deposition – while it is true that a witness can reveal facts and positions, its admissibility at trial is for later determination. Moreover, such a legal determination is more akin to a Motion for Partial Summary Judgment (asking a trial court for evidentiary rulings). While this is a proper duty for a court, it is an impossible task at this time — because the answers have not yet occurred. There is simply nothing to rule upon. Defendant can preserve trial objections to questions that are flawed in form or foundation pursuant to the Indiana Rules of Procedure. Consequently, this trial court does not need to address these issues until after the 30(b)(6) answers have been given and at a more appropriate time (i.e., hearings on motions in limine or summary judgment).
By: /s/Jeff Shaw. Attorneys for Plaintiff, 56 Indiana Avenue, Valparaiso, IN 46383
[1] “30(b)(6), Deposing Corporations, Organizations & the Government,” by Mark Kosieradzki, Trial Guides, LLC, 2016 at p. 31.
[2] Id., p. 65
[3] Id., p. 72; Sabre v. First Dominion Capital, LLC, 2001 WL 1590544, *1 (S.D.N.Y. Dec. 12, 2001) (citing 8A Charles A. Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice & Procedure, Sec. 2103 (2d ed. 1994)).
[4] State of Indiana v. Hogan, 588 N.E.2d 560, 562 (Ind. 1992).
[5] Telephone and Telegraph Corp., 2004 U.S. Dis. LEXIS 28819, –15-17 (W.D. Tex. June 1, 2004).
[6] Security Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. 29 (D. Conn. 2003); E.E.O.C. v. Caesars Entm’t Inc., 237 F.R.D. 428, 434 (D. Nev. 2006); Ieradi v. Lorillard, Inc., No. 90-7049, 1991 WL 158911 (E.D. Pa. Aug. 13, 19910; Protective Nat’l Ins. Co., Commonwealth Ins. Co., 137 F.R.D. 267, 272-77 (D. Neg. 1989).
[7] Jackson v. Russell, 491 N.E.2d 1017, 1018 (Ind. Ct. App. 1986).
[8] United States v. Taylor, 166 F.R.D. 35, 362 (M.D. N.C. 1996); United States v. Massachusetts Indus. Finance Agency, 162 F.R.D. 410, 412 (D. Mass. 1995); Lapenna v. Upjohn Co., 110 F.R.D. 15, 21 (E.D. Pa. 1986); Toys “R” Us, Inc., v. N.B.D. Trust Company, No. 88C10349, 1993 WL 543027, at *2 (N.D. Ill. Sept. 29, 1993).
[9] Lapenna v. Upjohn Co., 110 F.R.D. 15, 21 (E.D. Pa. 1986) (citing Kendall v. United Air Lines, Inc., 9 F.R.D. 702 (S.D. N.Y. 1949)0. See also, 4 J. Moore, J. Lucas & G. Grotheer, Moore’s Federal Practice Para. 26.56{3}, at 142-43 )2d ed. 1984); See also “30(b)(6), Deposing Corporations, Organizations & the Government,” by Mark Kosieradzki, Trial Guides, LLC, 2016 at pps. 150-54.
[10] 573 N.E.2d 885 (Ind. 1991).
[11] U.S. v. McDonnell Douglas Corp., 961 F. Supp. 1288, 1290 (E.D. Mo. 1997).
[12] Jackson v. Russell, 491 N.E.2d 1017, 1018 (Ind. Ct. App. 1986).
[13] Upjohn Co. v. United States, 449 U.S. 383, 396-96, 101 S. Ct. 677, 66 L.Ed.2d 584 (1981).
[14] Sprint Communications Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 529 (D. Kan.2006).
[15] Great Am. Ins. Co. v. Vegas Const. Co., 251 F.R.D. 534, 541 (D. Nev. 2008).
[16] Resolution Trust Corp. v. Sands, 151 F.R.D. 616, 620 (N.D. Tex. 1993).