When you take a corporate-representative deposition, how closely must your questions be correlated to the topics in your deposition notice?
In many jurisdictions, you won’t be allowed to ask about other, unrelated topics. This is not the rule everywhere, however. See, e.g., King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). In King, the court suggested a framework for handling questions outside the scope of a corporate-representative notice. To quote from the case:
1) Rule 30(b)(6) obligates the responding corporation to provide a witness who can answer questions regarding the subject matter listed in the notice.
2) If the designated deponent cannot answer those questions, then the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions, etc. The corporation has an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are "known or reasonably available" to the corporation. Rule 30(b)(6) delineates this affirmative duty.
3) If the examining party asks questions outside the scope of the matters described in the notice, the general deposition rules govern (i.e. Fed.R.Civ.P. 26(b)(1)), so that relevant questions may be asked and no special protection is conferred on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6).
4) However, if the deponent does not know the answer to questions outside the scope of the matters described in the notice, then that is the examining party's problem.
Although King represents a minority view, it makes sense to check the court cases in your own jurisdiction before your next corporate-representative deposition. If your questions are not limited to the topics in the notice, this is something you will want to know ahead of time, in the event the deponent’s answers take you in new, unexpected directions.
Note: This post is a draft of a practice tip for the next supplement to my deposition book, Deposition Checklists and Strategies (James Publishing 2007). I have more on this same issue in my next post.