Commercial litigation by definition usually doesn't involve individuals; it involves corporations suing one or other corporate entities. However, a corporation can only act through its employees. Thus, for discussion purposes, a lawyer must attempt to determine which documents are relevant and which people within a corporation have relevant information. Two risks of commercial litigation are that an attorney can learn at the end of a discovery period that relevant documents exist that someone failed to request or that every corporate employee deposed answered "I don't know" to a critical question.
Federal Rule of Civil Procedure 30(b)(6) and comparable state rules provide commercial litigators with a tool to minimize these risks by allowing them to depose a corporation or other organization that is actually a party to a litigation. To maximize this discovery tool, though, a litigator must use Federal Rule of Civil Procedure 30(b)(6) or state the equivalent depositions strategically as part of overall discovery plans. The purpose of this article is to provide some insight into how a litigator can use a 30(b)(6) deposition to uncover a corporation's knowledge and to avoid litigation surprises. In doing so, this article will discuss cases decided under Federal Rule of Civil Procedure 30(b)(6). Most states, however, have enacted comparable rules so the principles articulated here will probably apply in either a federal or a state court. 'See, e.g., Mo. R. Civ. P.57.03(b)4);Ark. R. Civ. P.30(b)(6); N.C. R. Civ. P. 30(b)(6)
The full article, "Uncover Knowledge and Avoid Surprises," first appeared in For the Defense in March 2012.