Navigating the Benefits, Risks, and Limitations of Entity Depositions

A best-practices primer 

By Tom Tinkham and Ben D. Kappelman

Your opponent in this suit is a corporation. You don’t know the names of some of the corporate employees who may have the important facts and you can’t tell who made the critical decisions. Do you waste your limited number of depositions and your time by noticing depositions of all the likely corporate employees? No. You use Federal Rule of Civil Procedure 30(b)(6) or the Minnesota equivalent 30.02(f) to notice one deposition and require the corporation to produce witnesses who have all of the entity’s knowledge on subjects relevant to the suit.

As you are thinking about this approach, your opponent serves a 30(b)(6) notice on you that contains 70 separate topics, delves into your corporate client’s document retention practices, and sets the deposition for next week. Do you produce the witnesses next week? No. This is the time to begin both preparation and negotiation so that the entity deposition is manageable and the deposition can proceed appropriately.

These descriptions illustrate some of the benefits and drawbacks of the 30(b)(6) discovery device. The purpose of this article is to describe the benefits and drawbacks of the 30(b)(6) discovery procedure in detail, discuss the current case law on this procedure, and offer suggestions for more effective ways to use the device or manage the response.

The essentials of the rule and its uses

Federal Rule of Civil Procedure 30(b)(6) and its Minnesota equivalent 30.02(f) provide for a notice of deposition to an “entity” rather than an individual. An entity can include a corporation, partnership, association, or government body. The notice can be served on a non-party by subpoena, with an explanation of the respondent’s obligations.¹ The notice must identify the subjects of the deposition with reasonable particularity. The subjects can be any matters that are relevant to the suit. These can include questions requiring a factual response or a response requiring an application of law to fact as in contention interrogatories.

For the party seeking discovery from an entity, the 30(b)(6) notice avoids guessing at the identity of the entity employee who has knowledge of the relevant facts. Its use can avoid having to set multiple depositions to discover selected facts. Its use can often prevent the entity from hiding the facts by offering a series of witnesses who disclaim any knowledge.² It avoids the question of who is a managing agent of the entity and is thus speaking for the entity. The answers of the 30(b)(6) deponent will constitute admissions of the entity and can be used for that purpose at trial or in motions for summary judgment. Finally, the notice, when appropriately drafted, requires the entity to provide all information “known or reasonably available” to it, thus limiting the risk of missing a significant piece of information in discovery of the entity. A party may also notice the individual deposition of an officer, director, or managing agent whose testimony may also be an admission of the organization.³

There are no limits on the number of subjects in a notice or on the number of 30(b)(6) notices. However, the topics identified in the notice must solicit relevant information, not be unduly burdensome, and be proportional to the needs of the case. Taking a second deposition on topics identical to those previously taken is not permitted absent agreements of counsel or a court order.⁴ Some courts permit only a single 30(b)(6) deposition per entity.⁵ Careful counsel should thus include all potential topics in the first, single notice, absent agreement (or court permission) for a staged approach.

The 30(b)(6) deposition is frequently used to: 1) obtain all of the evidence available to an entity on a significant fact issue; 2) understand the roles of various corporate employees in the facts of the case; 3) force the organization to commit to a position on legal and fact issues; or 4) probe the entity’s compliance with retention and document production obligations. Some of these uses have become controversial.

Contention questions in a 30(b)(6) notice can be problematic. For example, the directive to a plaintiff to provide a witness to testify to “all facts supporting Plaintiff’s allegations in Count I of the Complaint,” when served early in the case, can be difficult to answer. These questions resemble contention interrogatories, and like those, courts have often delayed the obligation of a party to respond until after significant discovery has been concluded.⁶

Entity depositions as a discovery-about-discovery tool

“Process” discovery, or discovery about discovery, has also become controversial.⁷ A typical process discovery request in a 30(b)(6) notice might be: “identify all the entity’s systems and methods for storing electronic information.” When a party begins discovery with questions about process rather than the substance of the dispute, it risks increasing the costs of litigation as the parties dispute the extent of process discovery. As one court put it: “[S]uch an inquiry puts the cart before the horse.”⁸ Some courts have noted that discovery about process stretches the concept of relevance unless there is some showing that material information is not being retained or produced.⁹

The commentators to the 2015 federal rule amendments take a different view, however. Fed. R. Civ. P. 26(b)(1) was revised to delete language expressly permitting discovery into “the existence, description, nature, custody, condition, and location of any documents or other tangible things.” Far from prohibiting this discovery, the advisory committee believed that “[d]iscovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples, [which] should still be permitted under the revised rule when relevant and proportional to the needs of the case.”¹⁰ The committee acknowledged that
“[f]raming intelligent requests for electronically stored information, for example, may require detailed information about another party’s information systems and other information resources.”¹¹

In situations where discovery is clearly going to be a problem or where there have been deficiencies in a party’s discovery responses, process discovery is more likely to be permitted. Counsel concerned about the presiding judge’s reaction to process discovery should build a strong factual record of its necessity before making requests. For example, once an individual witness admits when deposed that relevant documents were created but not produced, a court is more likely to permit discovery requests directed to why those documents were not produced.

Even in a court receptive to discovery about discovery, discretion is always advised. Serving a long list of process requests at the start of the case may appear to be good aggressive strategy but it risks a negative reaction from the court that the discovery is overbroad, burdensome, and not proportionate to the needs of the case.¹² There is also a practical reason to attempt to obtain this information through counsel-to-counsel communications and written discovery before resorting to an entity deposition—many corporate designees will be simply incapable of answering detailed questions about storage and searching of electronically stored information, no matter how demanding a deposition notice the opposing party crafts. A more effective technique is to elicit the other party’s approach for finding, collecting, and producing documents in correspondence from that party’s counsel and then ask a party’s witness to testify to its accuracy on key points.

Preparing the 30(b)(6) notice and taking the deposition

The notice should explicitly reference Rule 30(b)(6) and it should be directed to the entity. If it is directed to a third party, it must be accompanied by a subpoena. For third party notices, the best practice is to draw the respondent’s attention to the language of the rule and, particularly, the obligation to provide a witness with all information known to or reasonably available to the entity. The notice period should be sufficiently long so that the respondent has a reasonable time to locate responsive information and educate a witness. There is a presumption, absent compelling facts, that the deposition of an entity should be taken at its principal place of business.¹³

The notice can cover multiple subjects limited only by relevance, proportionality, or undue burden. It is not unusual to see reported cases with over 40 separate areas of inquiry.¹⁴ The true art of drafting the notice is to create topics that elicit all information on a particular topic while clearly defining the topic so that the respondent can be confident about the information that must be provided. The rule requires the topics to be of reasonable particularity. This is interpreted to require discrete, specific topics that are not overbroad.¹⁵ One court refers to the requirement as designation “with painstaking specificity” so that the respondent understands the information to be provided.¹⁶ Despite your best efforts at specificity, it will often be the case that the respondent will have legitimate questions about the meaning of some topics. Be prepared to explain what you are looking for on those topics. Follow any explanation with a letter or amended notice.

Taking the 30(b)(6) deposition involves a somewhat different approach than with an individual deposition. At the outset, the examiner should make clear that this is a 30(b)(6) deposition and identify the responsive entity. The 30(b)(6) notice should be marked as the first exhibit and a copy put before the deponent. The deponent should be asked if she is there on behalf of the organization. The particular items this witness will respond to should be identified. As to each item, ask the witness what she did to prepare—what people she interviewed and what documents she reviewed. Did the witness bring notes summarizing pertinent facts? When asking the most central questions it is useful to phrase them such as: “Please identify all facts known to or available to the organization relating to the claim that my client lied.” This will make it clear to a jury that the testimony is not just some individual’s knowledge but the knowledge of the party itself.

Frequently, the witness will be unprepared to respond on some of the issues. Indications of lack of preparation include not having previously seen the notice, not interviewing any other persons, or not reviewing any documents. Even with a witness who has done some preparation, it is often the case that the preparation is incomplete. Perhaps the notice was not clear; perhaps it was simply misunderstood; or perhaps the preparation was poor. The appropriate steps for the examiner are to ask that the deposition proceed to the extent possible; identify each inadequacy; and then request that this witness or a substitute be provided at a future reasonable time to complete the deposition.¹⁷ Suspicions of lack of preparation should be confirmed with detailed questions. Why does the designee think he is being deposed today? For how long did the designee prepare? Did the designee inquire of other individuals to obtain relevant information? Did the designee review any documents? How long before the deposition did the designee learn he or she would be designated?

Reasonable counsel should be able to solve most of these issues without recourse to the court. In any event, a “meet and confer” is always a necessary precursor to a motion and there is no better time to have the discussion than when the issue arises. Any agreement of counsel should be documented as part of the deposition transcript. If there will be a further deposition, be clear that this deposition is expected to resume and is not terminated. Once terminated it can be difficult to resume the 30(b)(6) deposition on the same subjects.

One of the vexing problems in a 30(b)(6) deposition is whether the examiner can ask questions beyond the scope of the notice or whether the examiner must notice an individual deposition to ask these off-topic questions. There is a minority view that the examiner is limited to the scope of the notice.¹⁸ The majority view is that the examiner can ask off-topic questions but that the witness is then testifying as an individual and not as a corporate representative.¹⁹ The attorney for the witness should make clear that on off-topic subjects, the witness is only responding as an individual. The possibility of off-topic questions in a 30(b)(6) deposition should be considered by the respondent’s attorney in designating the 30(b)(6) witness and that witness should be prepared to answer individually on any relevant topic. Since it will be difficult to schedule a second deposition of a witness who has previously testified as an individual, the examiner should make a considered choice of whether to ask the individual questions during the 30(b)(6) deposition or notice and take an individual deposition later.

Another problem often encountered with 30(b)(6) depositions is determining the number of depositions for purposes of the 10-deposition limit of the rules or other limit imposed by court order.²⁰ Should there be one deposition counted for each notice?²¹ Should there be one deposition counted for each person designated to respond?²² Each of these alternatives is subject to manipulation by one or the other party. And how does the seven-hour rule relate to a 30(b)(6) deposition?²³ Given the lack of guidance on these issues, counsel should attempt to reach agreement before starting any extensive 30(b)(6) deposition, ideally when the scheduling order is being negotiated, a time when cooperation is more likely (and court-supervised).

Responding to the 30(b)(6) notice

When you receive a 30(b)(6) notice directed to your client, first make sure your client understands the obligation created by the notice. Its obligation is to present a witness or witnesses who will be able to testify to all responsive facts known to or reasonably available to the organization on the identified topics.²⁴ This can result in a huge effort that can approximate the time necessary to prepare for trial. The expense and management disruption may be substantial, requiring a full explanation from its attorney of why compliance is necessary.

Second, make sure you have adequate time to prepare before the scheduled deposition. Being rushed to present an inadequately prepared witness can result in mistakes in testimony that will be difficult to correct or inadequate testimony resulting in multiple depositions, motion practice, or sanctions. Negotiate an adequate time to prepare. Consider taking lengthy lists of 30(b)(6) topics in stages to make preparation achievable. If negotiation fails to result in adequate time, bring a motion for a protective order documenting the need for additional preparation time.

Consider whether there are topics in the 30(b)(6) notice that are subject to legitimate objection. Think of the notice as an opening offer in a negotiation. Negotiate to achieve a reasonable set of requests to which your client can reasonably respond.²⁵ Of course, consider what similar requests you may want to serve on the opposition, lest your objections undermine your ability to obtain commensurate discovery. Objections can include:

1. The item is vague. The rule requires specificity so that the responding party can identify the scope of information to provide.²⁶ Require and document an explanation that provides that specificity.
2. The item is overbroad, seeking information that is not relevant.²⁷
3. The items are directed at the respondent’s “process” (e.g., document retention or document production practices) for discovery rather than at information relevant to the merits.²⁸ Absent a showing of some defalcation in discovery, this process discovery is likely burdensome, not proportional, and seeks irrelevant information.²⁹
4. The notice fails to provide a reasonable time to prepare a witness.
5. Items in the notice are the equivalent of premature contention interrogatories and any response should be postponed until other discovery is completed.³⁰
6. Items in the notice call only for legal conclusions and will invade the attorney-client privilege or work product exclusion.³¹

Objections should be made long before the deposition is set to begin. Objecting at the deposition only will be insufficient to preserve the issue(s). After sending a written objection, the proper procedure is to schedule a meet-and-confer session. If that does not settle the dispute, the objecting party should proceed with a motion for a protective order. A party is not permitted to resist a deposition notice by merely objecting and forcing the noticing party to move to compel.³²

When circumstances narrow the issues in a case, a party may succeed in avoiding the burden of an entity deposition altogether.
When a court permitted “very limited additional discovery solely to address [remaining] issues” following appellate remand, the court rejected the plaintiff’s request for a 30.02(f) deposition, reasoning “[a] Rule 30.02(f) deposition is the antithesis of the narrow, focused discovery envisaged by this court.”³³

Review each separate 30(b)(6) topic with your client representatives to learn how to gather the required information and who can best respond on each point. The respondents can be officers, directors, agents, or other consenting persons. The burden is on the entity to designate and prepare witnesses.³⁴ The person designated may or may not have any direct knowledge of relevant events. Since the person chosen will be speaking on behalf of the entity, the most important consideration will be to choose a witness or witnesses who are great witnesses and will represent the entity credibly. Where the subject is highly technical, it will be most important to locate a witness with the required sophistication to understand the nuances of the subject.

All information known to or reasonably available to the entity must be made available to the persons who will testify.³⁵ Information held by a subsidiary or an outside consultant, including counsel, is reasonably available if the entity could obtain it in the ordinary course of business.³⁶ The witness can be prepared by reviewing documents or interviewing persons with knowledge. Where complex testimony is necessary, consider providing the witness with summaries to use during the deposition. Of course, these summaries will then be available to the adverse party, but they will permit the witness to testify more completely.

Keep in mind that you may be asking the 30(b)(6) witness to master a great deal of information. Make it easier by preparing materials that will assist. Although these materials may become discoverable if they refresh a witness’s recollection,³⁷ careful preparation will ensure any risk of disclosure is outweighed by the benefit of more considered and accurate testimony by your client’s designee.

As you prepare the 30(b)(6) witness, consider the issues of work product and attorney-client privilege. The 30(b)(6) witness can be required to identify the source of her information even where it is her counsel. Facts discovered by counsel are part of the corporation’s knowledge and must be provided when they are responsive to the notice.³⁸ However, when the notice is used as an indirect way to obtain work product or legal advice, it will not be permitted.³⁹ Questions of the 30(b)(6) witness asking for details of the preparation session with counsel will normally be subject to a work product and/or attorney-client privilege objection and an instruction not to answer. However, where counsel provides the facts for the testimony, the question requiring the witness to identify the source of the information as counsel is appropriate.

The 30(b)(6) witness often needs significant preparation. You will want to make sure the witness commits to the necessary preparation and understands the importance of her testimony on behalf of the organization. The witness may be asked questions off the 30(b)(6) topics and should be prepared to respond as an individual. The 30(b)(6) witness should become familiar with the legal issues in the case and appreciate how the 30(b)(6) topics relate to those issues. On all the 30(b)(6) topics, the witness should be comfortable with and able to articulate the organization position. If witness preparation reveals a significant disconnect between the view of the witness and that of the entity, it is necessary to find a different witness or amend the organization’s position on that issue. More than with most witnesses, the preparation should include a discussion of privilege and work product. Counsel and the witness should have a common understanding of where the lines will be drawn on testifying about information provided by counsel.

The responding party and its counsel should appreciate the risks of tendering an unprepared 30(b)(6) witness. An unprepared witness can be construed by the court as no appearance at all, exposing the party to the full range of Rule 37 sanctions.⁴⁰ A corporate designee who testifies that he did “very little” to prepare and that he “would be testifying based only on his personal knowledge” leaves the entity he represents exposed to sanctions.⁴¹ A court may limit the organization’s ability to offer additional trial testimony, or deem certain facts established.⁴² It may order additional preparation and a continued deposition as well as imposing monetary sanctions.⁴³ On the other hand, a reasonable effort is required—not a perfect effort. The inability to answer a few questions should not be considered being unprepared.⁴⁴ It should not be a surprise that disagreements will arise during the deposition concerning the scope of the questions and the extent of preparation. Most of the time these should be resolved by a refinement of the topics, some additional witness preparation, or both.

Concluding thoughts

Some discussions and some commentators take the position that the testimony of a 30(b)(6) witness is binding on the organization.⁴⁵ That paints with far too broad a brush. There are two circumstances where a 30(b)(6) witness’s testimony is essentially binding. First, there is a long line of federal decisions holding that when a summary judgment motion is premised on the deposition testimony of the other party, that party cannot offer an affidavit to vary the testimony and avoid summary judgment (the sham affidavit doctrine). That same proposition has been applied to 30(b)(6) testimony.⁴⁶ Second, there are cases holding that where an entity does not provide testimony on a requested topic, it will be precluded from later providing that testimony at trial.⁴⁷

In most situations, however, the testimony of a 30(b)(6) representative is not more binding than any other admission.⁴⁸ The 30(b)(6) testimony is an evidentiary admission and may be used for all evidentiary purposes if made by the opponent. However, it is not a judicial admission and it may be contradicted and explained.⁴⁹ The party offering the admission will ask the court to instruct the jury that the testimony was on behalf of the adverse party. The adverse party will offer testimony to clarify, explain, or refute the admission. The jury will decide whether to credit the admission or the later explanation.

Rule 30(b)(6) is a powerful tool. Able counsel can use it to efficiently reach the most significant information held by a large adverse entity. Like any powerful tool, it is subject to misuse. It can be used to force an entity to spend countless hours producing tangential information or its own legal strategy. It is up to able counsel to resist abuses of the process while accommodating the appropriate effort to obtain relevant information. 

BEN D. KAPPELMAN is a partner in the intellectual property litigation practice group at Dorsey & Whitney LLP in Minneapolis.  He focuses on patent, trade secret, and trademark disputes.

Notes

¹ Fed. R. Civ. P. 30(b)(6) expressly permits its application in a “notice or subpoena.” (Emphasis added.)

² Fed. R. Civ. P. 30, advisory committee’s note to 1970 amendment; Minn. R. Civ. Pro. 30.02, advisory committee’s note to 1975 amendment.

³ Fed. R. Civ. P. 30(b)(1). One Minnesota state trial court had no trouble permitting a 30.02(f) deposition of a corporate defendant even though the designee had already been deposed individually and “as a practical matter, [was] the only person with the information requested in the notice of deposition.” Jensen v. Elite Mechanical Systems, LLC, No. 08CV1533, 2015 WL 7429944, at *2-3 (Minn. Dist. Ct. 10/8/2015). The court reasoned the entity was being deposed, not the individual, and the topics of the deposition became relevant after the individual’s first deposition. Id.

⁴ Fed. R. Civ. P. 30(a)(2)(A)(ii). See Johnson v. Charps Welding & Fabricating, Inc., No. 14-cv-2081 (RHK/LIB), 2017 WL 9516243, at 12-15 (D. Minn. 3/3/2017); Rule 30(b)(6) Subcommittee, Advisory Committee on Civil Rules, Invitation for Comment on Possible Issues Regarding Rule 30(b)(6) at 3 (5/1/2017), available at https://www.uscourts.gov/sites/default/files/invitation_for_comment_from_the_rule_30b6_subcommittee_may_1_2017_0.pdf .

⁵ Heath v. Google LLC, No. 15CV01824BLFVKD, 2018 WL 4491368, at *2 (N.D. Cal. 9/19/2018) (collecting cases).

⁶ Trustees of Bos. Univ. v. Everlight Elecs. Co., No. 12-CV-11935-PBS, 2014 WL 5786492, at *4 (D. Mass. 9/24/2014) (holding contention topics not appropriate 30(b)(6) deposition topics); Milwaukee Elec. Tool Corp. v. Chervon N. Am., Inc., No. 14-CV-1289-JPS, 2015 WL 4393896, at *5 (E.D. Wis. 7/16/2015) (permitting contention topics).

⁷ Craig Shaffer, Deconstructing “Discovery About Discovery,” 19 Sedona Conf. J. 215 (2018).

⁸ Miller v. York Risk Servs. Grp., No. 2:13-CV-1419 JWS, 2014 WL 1456349, at *2 (D. Ariz. 4/15/2014).

⁹ See e.g., Orillaneda v. French Culinary Inst., No. 07 CIV. 3206 RJH HBP, 2011 WL 4375365, at *6-9 (S.D.N.Y. 9/19/2011).

¹⁰ Fed. R. Civ. P. 26, advisory committee’s note to 2015 amendment.

¹¹ Id. The Minnesota Rules of Civil Procedure now reflect the same amendment. See Minn. R. Civ. P. 26.02, advisory committee’s note to 2018 amendment.

¹² Fed. R. Civ. P. 26(b)(1).

¹³ Webb v. Ethicon Endo-Surgery, Inc., No. Civ. 13-1947 JRT/JJK, 2015 WL 317215, at *7-8 (D. Minn. 1/26/2015).

¹⁴ E.g., Mallak v. Aitkin Cty., No. 13-CV-2119 (DWF/LIB), 2016 WL 8607391, at *10 (D. Minn. 6/30/2016), aff’d, 2016 WL 8607392 (D. Minn. 9/29/2016).

¹⁵ Johnson, 2017 WL 9516243, at *16; Mallak, 2016 WL 8607391, at *7.

¹⁶ Klein v. Affiliated Grp., Inc., No. 18-CV-949 DWF/ECW, 2019 WL 246768, at *9 (D. Minn. 1/17/2019).

¹⁷ See Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75-76 (D. Neb. 1995); Adrian Felix et al., Deposition, Turning the Tables on Difficult Witnesses (And Counsel), 48 The Brief 30, 33 (Winter 2019).

¹⁸ Neil Lloyd & Christina Fernandez, Refining and Then Sticking to the Topic: Making Representative Party Depositions Under Fed. R. Civ. P. 30(b)(6) Fairer and More Efficient, 83 U.S.L.W. 1026 (1/13/2015).

¹⁹ Detoy v. City & Cty. of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000); Richard L. Marcus, 8A Fed. Prac. & Proc. Civ. § 2103 (3d ed. 2018).

²⁰ Fed. R. Civ. P. 30(a)(2)(A)(i). 

²¹ See Marcus, supra; 7 Moore’s Federal Practice - Civil §30.25[1] (2019). 

²² Fed. R. Civ. P. 30, advisory committee’s note to 1993 amendment (“A deposition under Rule 30(b)(6) should, for purposes of this limit, be treated as a single deposition even though more than one person may be designated to testify.”).

²³ Fed. R. Civ. P. 30(d)(1).

²⁴ Marcus, supra. See Concerned Citizens of Belle Haven v. Belle Haven Club, 223 F.R.D. 39, 43 (D. Conn. 2004); Arctic Cat, Inc. v. Injection Research Specialists, Inc., 210 F.R.D. 680, 686 (D. Minn. 2002).

²⁵ Indeed, proposed amendments to the rule would add a specific meet-and-confer requirement to Fed. R. Civ. P. 30(b)(6). Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure, and the Federal Rules of Evidence at 36 (Aug. 2018) available at https://www.uscourts.gov/sites/default/files/2018_proposed_rules_amendments_published_for_public_comment_0.pdf .

²⁶ Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000).

²⁷ Johnson, 2017 WL 9516243, at *16.

²⁸ Shaffer, supra at 12; Bombardier Recreational Prod., Inc. v. Arctic Cat, Inc., No. 12-CV-2706 (MJD/LIB), 2014 WL 10714011, at *14-15 (D. Minn. 12/5/2014).

²⁹ See, e.g., Whitesell Corp. v. Electrolux Home Prod. Inc., No. CV 103-050, 2015 WL 5316591, at *1-3 (S.D. Ga. 9/10/2015).

³⁰ In Re RFC & RESCAP Liquidating Tr. Actions, No. CV133451SRNJJKHB, 2017 WL 548909, at *4 (D. Minn. 2/10/2017).

³¹ In re Linerboard Antitrust Litig., 237 F.R.D. 373, 385 (E.D. Pa. 2006).

³² New England Carpenters Health Benefits Fund v. First DataBank, Inc., 242 F.R.D. 164, 164-66 (D. Mass. 2007); E.E.O.C. v. Thurston Motor Lines, Inc., 124 F.R.D. 110, 114 (M.D.N.C. 1989).

³³ State v. 3M Company, No. 27-CV-10-28862, 2014 WL 12802929, at *6 (Minn. Dist. Ct. 11/6/2014). The court continued: “This court cannot believe that, after the deposition of 70 witnesses and the production of over 6 million pages of documents, the State is not in a position to be specific as to the persons it wishes to interrogate.” Id.

³⁴ Hooker v. Norfolk S. Ry. Co., 204 F.R.D. 124, 125-26 (S.D. Ind. 2001).

³⁵ Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., No. 01 CIV. 3016(AGS)HB, 2002 WL 1835439, at *3 (S.D.N.Y. 8/8/2002).

³⁶ W. Virginia Pipe Trades Health & Welfare Fund v. Medtronic, Inc., No. CV 13-1686 (JRT/FLN), 2017 WL 9325026, at *6-7 (D. Minn. 10/12/2017).

³⁷ Sauer v. Burlington N. R. Co., 169 F.R.D. 120, 123 n.3 (D. Minn. 1996) (citing United States v. Sheffield, 55 F.3d 341, 343 (8th Cir. 1995)).

³⁸ Marcus, supra.

³⁹ In re Linerboard, 237 F.R.D. at 385.

⁴⁰ Johnson, 2017 WL 9516243, at 13-14; Moore’s, supra, §30.25[3].

⁴¹ Menard, Inc. v. Cty. of Anoka, 2018 Minn. Tax LEXIS 42, *6 (8/1/2018) (awarding costs and attorney fees as a sanction for an unprepared witness).

⁴² Anderson v. Premier Mgmt., 2012 Minn. Dist. LEXIS 79, *14 (4/26/2012) (sanctioning party’s failure to tender prepared 30.02(f) witness by deeming liability established).

⁴³ Marcus, supra.

⁴⁴ Mallak, 2016 WL 8607391, at *7.

⁴⁵ Thomas C. Nelson, Serving and Receiving 30(B)(6) Deposition Notices, 27 S. Carolina Lawyer 36, 39-40 (2016); Lloyd & Fernandez, supra.

⁴⁶ Daubert v. NRA Grp., LLC, 861 F.3d 382, 392 (3d Cir. 2017).

⁴⁷ Marcus, supra.

⁴⁸ R & B Appliance Parts, Inc. v. Amana Co., L.P., 258 F.3d 783, 786-87 (8th Cir. 2001).

⁴⁹ Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251, 1261 (10th Cir. 2016).