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Strategies for Responding to FRCP 30(b)(1)

By John C. Eustice

Your company is engaged in civil discovery and is served with a Rule 30(b)(1) notice identifying a specific corporate officer or director to be produced for deposition. The designee is busy, located overseas, knows little about the issues in the lawsuit, does not want to sit for a deposition, or some combination of the above. What are your options? Most in-house counsel know to argue that a high-level executive, such as the CEO, is an “apex” witness who should not be deposed until the noticing party has exhausted alternative discovery means. Another argument counsel may not know, however, involves using the text and intent of Rule 30(b)(1) to curtail these depositions.

Although most courts have interpreted Rule 30(b)(1) to allow such depositions, one particular well-reasoned opinion examining the rule provides a blueprint for counsel to resist convention and effect a better outcome for their companies. This uphill battle is often worth fighting, as it empowers institutional parties to preclude or at least place limits on an opposing party's ability to demand depositions of named officers, directors, and managing agents.

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