This is Part 4 of a four-part series on calling the judge during a deposition. Read Part 1 here
The first thirty minutes of a 30(b)(6) deposition are a contest. Defense counsel knows it. Aggressive defense lawyers will use the opening of the deposition to establish dominance — making repeated speaking objections, coaching the witness, blocking inquiry into the witness’s preparation. If you let it run, you’ll spend the rest of the day fighting for every answer.
This is the story of one such opening, where I called the judge ten minutes in, got a ruling that shut the obstruction down for the rest of the day, and then conducted six hours of clean examination.
After the case study, I’ve included a primer on Rule 30(b)(6) strategy in employment cases — purpose, advantages, and the four key legal principles from case law that every plaintiff-side lawyer should have in mind.
The case study
In a federal employment case in the Western District of Pennsylvania, I was taking the 30(b)(6) deposition of a hospital system. The corporate designee had been produced to testify on a defined list of topics, including the documents reviewed in preparing his testimony.
I asked, in substance: Are you prepared to produce the documents you consulted in this litigation?
Defense counsel responded — on the record, to me, not to the witness:
Okay. And we’re not going to do that. You have the documents already.
That was a flat refusal to allow inquiry into a topic that, under Rule 30(b)(6), is entirely fair game. The witness’s preparation, the documents the witness reviewed, and the source of the witness’s information are not privileged. They are foundational to the deposition.
I said I thought we should call the judge if we weren’t going to produce documents pursuant to the request. Defense counsel responded with a speaking objection. I asked them to stop with the speaking objections. They escalated. We were now arguing on the record about whether to argue on the record.
I told defense counsel: let’s call the judge right now.
We did.
The ruling
The judge came on the line after about twelve minutes of the deposition having been off the record. The off-record colloquy with the judge was brief — maybe ten minutes. When we came back on, the ruling went like this (stripped of identifying detail):
THE COURT: This is the judge presiding in the case. I had a brief discussion with counsel off the record to get a sense of what the nature of the dispute was.
From plaintiff’s perspective, the role of the counsel representing the witness is narrowly constrained by Hall v. Clifton. I have expressed the view that I don’t view Hall as any more than persuasive authority, and I think subsequent cases have retreated somewhat and do not put total strictures on an attorney’s right to interpose appropriate objections as the deposition is proceeding.
That having been said, however, I have cautioned counsel representing the witness that it’s certainly proper, particularly in the context of the 30(b)(6) deposition, for inquiring counsel to ask what the witness has reviewed, the source of information, and anything that would frustrate that, in my view, would not be a proper objection.
And needless to say, even though I have expressed the view that Hall v. Clifton went too far, any objection that in any way suggests an answer or coaches a witness as to the direction the witness should go would be improper, and I would view that as a violation of my protocols for conducting discovery.
So with those general guidelines, I will allow counsel on both sides to proceed in the hope that you can complete this inquiry without any further issues.
The court split the question. Yes, defense counsel could make objections — Hall v. Clifton doesn’t prohibit them. But — and this is the operative half of the ruling — coaching objections that suggest an answer or steer the witness are improper and a violation of the court’s protocols. And, specifically in 30(b)(6) context, inquiry into what the witness reviewed and the source of the witness’s information is proper. Frustrating that inquiry is not a proper objection.
What changed in the deposition after the ruling
Three things changed, all immediately.
1. Defense counsel stopped making speaking objections. Completely. For the next six hours of the deposition, every objection was a clean “objection to form” or a privilege objection.
2. The witness produced — and then sat for examination about — the documents he had reviewed. This was the original dispute. The judge had said the inquiry was proper, and defense counsel did not relitigate it.
3. The tone of the entire day flipped. When the judge cautions defense counsel on the record about coaching objections, defense counsel knows that any further violation is going to land them in a much worse position next time. I deposed the witness for six more hours with virtually no obstruction.
If I had not called the judge ten minutes in — if I had instead said “noted, let’s move on” and tried to fight it later — I would have been fighting speaking objections for the rest of the day, and probably for the rest of the case. The early intervention was the whole game.
What this ruling establishes
Strike fast, strike early. Speaking objections at the start of a 30(b)(6) deposition are an attempt to set the tempo of the day. If you let them run, they will run. If you call the judge in the first hour, you reset the day.
30(b)(6) inquiry into witness preparation is proper. What the witness reviewed, the source of the witness’s information, what informed the witness’s preparation — none of this is attorney-client privilege. Defense counsel will sometimes treat it as if it is. The court was explicit that it is not, and that blocking it is improper.
One ruling can shut down hours of obstruction. The court’s caution to defense counsel about coaching objections changed the behavior of the deposition for the rest of the day. The deterrent effect of a judicial caution on the record is significant — defense counsel does not want to be the one who got cautioned twice.
Get the ruling on the record. Off-the-record judicial guidance is useful but not enforceable. The judge in my case came back on the record and stated the ruling cleanly. That on-the-record statement is what governed the rest of the deposition and, ultimately, what would have governed any later motion practice.
Rule 30(b)(6) Deposition Primer for Employment Cases
The case study above is one slice of 30(b)(6) practice. For plaintiff-side lawyers who are newer to the rule, or who use it less aggressively than they should, here is the rest of what you should know.
Purpose and strategic value
A Rule 30(b)(6) deposition requires an organization to designate and prepare a witness to testify on behalf of the company about specific topics. Unlike a regular deposition, where you are limited to what one person happens to know, a 30(b)(6) witness must testify about what the organization knows or can reasonably ascertain.
This is one of the most powerful tools in federal civil discovery. It is particularly valuable in employment cases.
The core advantage: consolidating discovery
The 30(b)(6) mechanism lets you obtain the organization’s complete position on key issues in a single deposition. This is especially useful when:
- Multiple decision-makers were involved in the adverse employment action
- You need to understand company-wide policies and practices
- You need statistical or comparative data
- Individual witnesses might claim lack of knowledge
- You want to establish the factual basis for affirmative defenses
The practical benefit: instead of deposing HR, the supervisor, the decision-maker, and corporate compliance separately — each claiming they don’t know what the other knew — you get one witness who must synthesize the organization’s knowledge.
This is particularly useful in cases involving accommodation processes, leave policies, or pattern-and-practice claims where you need systemic information beyond any single witness’s knowledge.
Strategic advantages
- No “I don’t know” escape. The designee must prepare and must know the organization’s information. The organization is on the hook for failing to prepare.
- Binding admissions. Testimony binds the organization at trial.
- Exposes gaps. If the witness can’t answer, that itself is evidence — of missing documentation, missing training, or missing process.
- Discovery roadmap. Reveals what other depositions and documents you need.
- Forces consistency. The company must reconcile different departments’ accounts into a single corporate position.
Four key legal principles from case law
1. Documents don’t speak for themselves. State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 207 (E.D. Pa. 2008). A 30(b)(6) witness can be asked to elaborate on documents already produced. Production of documents doesn’t eliminate the need for testimony explaining and contextualizing them. The argument: we are entitled to understand what these documents mean and how they were applied in practice.
2. Discovery can be duplicative — burden is on the objecting party. Tri-State Hosp. Supply Corp. v. U.S., 226 F.R.D. 118, 125-26 (D.D.C. 2005), held that no principle of law precludes a party from pursuing during a deposition a topic about which it has already received information via other discovery devices. Carnegie Mellon Univ. v. Marvell Technol. Gr., Ltd., Civil Action No. 09-290 (W.D. Pa. Nov. 29, 2010), is the critical Western District of Pennsylvania holding: while duplicative discovery may be limited to avoid undue burden under Rule 26(b)(2), the objecting party bears the burden of showing specifically how the request is burdensome. When defense counsel objects that “we already answered this in interrogatories,” make them prove specific burden — general objections are not enough.
3. Statistical evidence is fair game in employment discrimination cases. Scott v. IBM Corp., 196 F.R.D. 233, 250 (D.N.J. 2000), held that statistical evidence is not limited to disparate impact cases — a plaintiff may present statistical findings as circumstantial evidence of intentional disparate treatment. You can demand statistical data about terminations, discipline, promotions, and demographics even in individual disparate treatment cases. Common 30(b)(6) topics: ages of terminated employees, racial breakdown of disciplinary actions, gender composition of promoted employees.
4. Contentions and affirmative defenses are fair game. State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., No. 03-6516, 2008 U.S. Dist. LEXIS 37571, at *32 (E.D. Pa. May 8, 2008), granted a motion to compel 30(b)(6) deposition where questions sought relevant, non-privileged facts learned from discussions with counsel and did not seek counsel’s mental impressions, conclusions, opinions, or legal theories. AMP, Inc. v. Fujitsu Microelectronics, Inc., 853 F. Supp. 808, 831 (M.D. Pa. 1994), granted a motion to compel 30(b)(6) deposition covering topics dealing largely with the contentions and affirmative defenses detailed in defendants’ answer and counterclaim. The key distinction: you can ask about the factual basis for defenses, not attorney strategy or legal theories. If they pled “legitimate non-discriminatory reason,” you are entitled to explore the factual basis.
Putting it together
The 30(b)(6) deposition, used well, is the single most efficient way to extract a federal employment defendant’s complete factual position. Aggressive defense counsel will try to obstruct it — speaking objections, refusal to allow inquiry into witness preparation, claims that previous discovery responses preclude further inquiry. Each of those tactics is legally weak. Each is also, in my experience, vulnerable to a real-time judge call when it happens.
This concludes the four-part series on calling the judge during a deposition.
- Part 1: When to Call the Judge During a Deposition: A Plaintiff’s Lawyer’s Playbook
- Part 2: “Instructions Not to Answer” Require Privilege — Not Inconvenience
- Part 3: How a Judge Call Got Us Comparator Discovery Without a Motion to Compel
- Part 4: Shutting Down Speaking Objections in a 30(b)(6) Deposition (this post)
If you’re an employee in Pennsylvania or New Jersey who believes you’ve been discriminated against, harassed, or wrongfully terminated, contact The Lacy Employment Law Firm LLC for a consultation.
