It can sometimes get messy when someone is deposed both in their individual capacity and as a Rule 30(b)(6) designee. Sometimes the parties specifically call out which sections of the transcript relate to 30(b)(6) topics or otherwise signpost for the record which bits of the deposition are meant to be binding on the corporation—but, frequently, the resulting transcript is less clear than one might hope. A discovery dispute earlier this week showcased an attempt at a novel solution to this problem that, unfortunately, doesn't work.
The defendants in Schwendimann v. Neenah, Inc., C.A. No. 19-361-LPS, noticed a deposition of the plaintiff's corporate head, Jodi Schwendimann, in her personal capacity, and also sent a 30(b)(6) notice for the corporation that listed more than 60 topics. In conferring on the topics and timing of the depositions, the plaintiff stated that it was likely to designate Schwendiman (the person) for all of the topics, and that it was "not opposed to designating the parts of Schwendimann’s personal deposition that cover the topics as 30(b)(6) testimony."
Following Schwendimann's (the person's) deposition, Schwendimann (the company) refused to produce a 30(b)(6) witness, on the grounds that Schwendimann (the person) had already been questioned on all of the non-objectionable topics in his personal deposition. Defendants complained that "they did not fully explore their 30(b)(6) topics during the 30(b)(1) depositions of Ms. Schwendimann so it would be unfairly prejudicial to permit Plaintiffs to retroactively and
unilaterally designate 30(b)(1) testimony as 30(b)(6) testimony" and the dispute was brought to Judge Stark.
Noting that Schwendimann (the company) "identif[ied] no authority for such retroactive action," Judge Stark ordered Schwendimann (the company) to produce a 30(b)(6) witness (potentially Schwendimann (the person)) to testify as to all of the defendants' topics. Notably, although Schwendimann (the company) had objected to various of the 30(b)(6) topics on other grounds, including that they were inappropriate contention topics, the Court held that these objections were waived as untimely.
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