Making the 30(b)(6) Witness Work for the Defense

By on September 19, 2019

Executive Summary of an article written by
Matthew D. Keenan, Shook, Hardy & Bacon L.L.P.

The plaintiff’s bar is enamored of Rule 30(b)(6). These days even the most basic lawsuits may see several 30(b)(6) notices. In multi-district litigation proceedings, they have become so prolific that some would say they are borderline abusive. However, the 30(b)(6) witness offers as much to the defense as any perceived advantage to the plaintiff. Enabling counsel to choose their best and most important witness is a gift to the defense. You can check the obvious boxes: be credible, confident and employ good judgment. The most important box to check, however, is this one: available time. This assignment demands a significant time commitment, often weeks.

The witness has the right to refer to whatever documents are required to answer questions. Offer a brief narrative of what a typical negligence jury instruction will contain so the witness understands how plaintiffs may spin their testimony, and collaboratively identify witnesses for the 30(b)(6) candidate to interview.

With a roadmap defined and the initial documents identified, let the witness go to work. The rule requires a good faith effort to gather all available information on the noticed topics, under penalty of sanction for failure to do otherwise.

The 30(b)(6) witness can tell the story that others can benefit from, particularly without the limitations of personal knowledge. We know that company witnesses — versus outside experts — win cases. Jurors want to know the company, and witnesses put a face on their efforts.

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