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30 (B) (6) SchedulingTactics
30 (B) (6) SchedulingTactics
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Steven P. Caley
cases involving a second 30(b)(6) notice
do not address directly the question of
how many depositions have been noticed
for purposes of the presumptive limit on
the number of depositions. Typically they
have analyzed whether a second 30(b)
(6) deposition would be a deposition
of one alreadydeposed in the case,
requiring leave of court under Rule 30(a)
(2)(A)(ii). Most courts have answered
this question in the affirmative. See e.g.,
Ameristar Jet Charter Inc. v. Signal Composites
Inc., 244 F.3d 189 (1st Cir. 2001); Terry v.
Unified Government of Wyandotte Co., 2011
WL 795816, at *3 (D. Kan. 2011); State
Farm Mutual Automobile Insurance Co. v.
New Horizon Inc., 254 F.R.D. 227 (E.D. Pa.
2008); contra, Quality Aero Technology Inc. v.
Telemetrie Elektronik GMBH, 212 F.R.D. 313,
319 (E.D.N.C. 2002).
While not directly on point, the
reasoning of these cases that the second
30(b)(6) is a new deposition lends
support to the view that if a party notices
and takes two 30(b)(6) depositions, two
depositions have been taken for purposes
of the 10 deposition limit. However, one
DEPOSITION DURATION
Rule 30(d)(2) provides generally, that
[u]nless otherwise authorized by the court
or stipulated by the parties, a deposition
is limited to one day of seven hours.
With respect to 30(b)(6) depositions, the
Advisory Committee Note to the 2000
Amendment to Rule 30 states that, [f]
or purposes of this durational limit, the
deposition of each person designated
under Rule 30(b)(6) should be considered
a separate deposition. Committee Note,
192 F.R.D. 340 at 395. Thus, absent party
agreement or court order to the contrary,
each 30(b)(6) designee potentially may be
examined for up to seven hours.
Of course, persons noticed as
individuals are frequently designated 30(b)
(6) witnesses as well, which leads to the
question of how long such a witness may
be examined in total. Courts considering
this issue have found that the depositions
of an individual who is noticed as an
individual witness pursuant to Fed. R.
Civ. P. 30(b)(1) and who is also produced
as a corporate representative pursuant to
Fed. R. Civ. P. 30(b)(6) [is] presumptively
subject to independent seven-hour time
limits. Wesley v. Gates, 2009 WL 1955997,
at *1 (N.D. Calif. 2009); citing Sabre v. First
Dominion Capital LLC, 2001 WL 1590544,
at *1-*2 (S.D.N.Y. 2001).
This does not mean, however, that
an inquiring party has carte blanche
to depose a witness for seven hours as
an individual and seven hours as a 30(b)
(6) witness. Rather, the Court is called
upon in each case to make a fact intensive
inquiry as to whether a particular witness
should or should not be required to submit
to questioning which exceeds seven hours
in length. Forte Capital Partners LLC v.
Harris Cramer LLP, 2008 WL 4924724, at
*3 (N.D. Calif. 2008).
The possibility that a corporate executive could be deposed for 14 hours, or
more (if so ordered by the court), causes
many corporate litigants to seek to limit
examination time. Some parties have
sought to do so by claiming to adopt as
the corporations 30(b)(6) testimony, the
corporate designees prior deposition tes-