FALL 2019 TODAY’S GENER AL COUNSEL
M aking the 30(b)(6) Witness Work for the Defense By Matthew D. Keenan
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he plaintiff’s bar has fallen in love with Rule 30(b)(6). If this is news to you, congratulations on your recent law school graduation. Foremost is the ability to instruct these witnesses, with a foreboding tone, that their testimony will “bind the company.” These days even the most basic lawsuits may see several 30(b)(6) notices. In multidistrict litigation proceedings, they have become so prolific that some would say they are borderline abusive. In my practice, however, the 30(b)(6) witness offers as much to the defense as any perceived advantage to the plaintiff. Over the years, I have developed a successful paradigm that can turn
the tables with this discovery tool. The successful 30(b)(6) witness employs five basic components that fit into the acronym SOCKS: Select the right witness Organize the litigation-related documents properly Clear out the road Keep the lawyers away Show and tell Select the right witness. It is helpful to remember that the origin of this rule dates back to 1965 — plaintiffs wanted it to avoid defense witnesses who played “who’s on first” in response
to the most important discovery topics. Defendants, on the other hand, hoped it would reduce plaintiffs’ seriatim deposition of witnesses up and down the org chart. This background explains the widespread judicial hostility toward ill-prepared witnesses. Plaintiff journals unabashedly acknowledge that one goal of the 30(b)(6) is to “build a record to expose the adversary’s obstruction” — analogizing it to, of all things, jujutsu. “The power comes from deflecting the adversary’s obstructive conduct back upon them,” reported one attorney in Trial Magazine. So bear with me while I belabor the