Parties can subpoena corporate entities to produce a witness for deposition who can testify “about information known or reasonably available to the organization” pursuant to Fed. R. Civ. P. 30(b)(6). This witness is commonly known as the “Person Most Knowledgeable,” PMK, or “30(b)(6) deponent.” The propounding party must describe with reasonable particularity the topics to be covered in the deposition. It is the corporate entity’s responsibility to produce a witness who can give complete, knowledgeable and binding answers on behalf of the corporation under the Rules. The implicit requirement for PMKs is they must review what is reasonably available to the corporate to prepare for the deposition. Parties get very upset if a PMK does not know what was listed in the deposition notice, because it is tantamount to failing to appear for deposition.

A Defendant brought a motion to compel a Plaintiff to produce a PMK witness competent to testify to the topics listed in the deposition notice, because the prior PMKs were unprepared for the deposition. The Plaintiff did not dispute their PMKs could not answer some questions and blamed the Defendants for not explaining with enough detail in their deposition notices. Radiologix, Inc. v. Radiology & Nuclear Med., LLC, 2018 U.S. Dist. LEXIS 86964, at *4-5 (D. Kan. May 24, 2018)

The Court saw right through the Plaintiff’s argument.

The deposition notice sought a witness who could answer how the Plaintiff maintained hard copy documents relevant to the lawsuit and their location. Radiologix, at *7-8. The first PMK could not answer what steps were taken to determine if hard copy documents existed or how they were stored. Id.

The PMK also could not answer what steps were taken to implement a litigation hold, including what was sent to employees on their preservation obligations. Radiologix, at *8. The witness did not know what happened to hard drives, if any data was collected from them, or if anyone’s hard drives were searched for relevant information. The witness did not know the decision making process for reviewing potentially relevant discovery and identifying what needed to be produced. Id. The Court stated that both witnesses did little to prepare for the depositions in order to answer questions about the preservation and search of ESI to identify responsive documents. Radiologix, at *9.

The Court granted the Defendant’s motion to reopen the Rule 30(b)(6) deposition on the unanswered topics with a time limit of four hours. Id.

Preparing for Deposition

Virtually every civil lawsuit will have a deposition. Preparing a PMK witness with a document production is very similar to responding to discovery requests. The PMK deposition notice can be uploaded to CaseFleet to find responsive documents for the different PMK categories.

There are several review strategies for preparing for deposition. One option is to select the “Search” feature to construct searches based on the PMK deposition notice. Once responsive documents are identified, selecting Launch Review and highlight the relevant text to create the Fact corresponding to the deposition notice. This Fact can then be linked to the specific section of the deposition notice with the “link to existing fact” option.

Preparing for depositions is universal in the practice of law. Being able to organize supporting documents with deponents is one way to ensure each deposition topic can be specifically answered and avoid motion practice over inadequate PMK depositions.

About the Author

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.