Can a corporate party affirmatively use deposition testimony from its own 30(b)(6) witness at trial? It depends.

Corporate Witness Testimony at the Deposition Stage

A quick primer on corporate witnesses under Federal Rule of Civil Procedure 30(b)(6).^[1] If an organization, such as a corporation, receives a notice of deposition under Rule 30(b)(6), it must designate one or more individuals to testify at a deposition about information known or reasonably available to the organization. If the deponent has no personal knowledge of the subject matters of the deposition as designated in the notice, then the corporation must educate its designated witness using corporate documents and other information available to the corporation.

Different Treatment of Corporate Witness Testimony at the Trial Stage

At the trial stage, Federal Rule of Civil Procedure 32(a)(3) provides that an adverse party may use a corporate witness’s deposition testimony for any purpose. Courts are divided, however, on whether the corporate party can use its own non-adverse witness’s deposition testimony as evidence at trial.

Some courts do not permit corporate parties to admit their non-adverse witness’s deposition testimony and require witnesses to have personal knowledge of their testimony, as demonstrated by a recent decision out of the California Second District Court of Appeal.^[2] The plaintiffs alleged exposure to asbestos from cosmetic talc products starting in the mid-1970s. In response to a deposition notice, the defendant designated its vice president to offer testimony based on documents from the 1970s that she reviewed. The defendant succeeded at summary judgment based on the vice president’s deposition testimony and declaration. The Court of Appeal, however, reversed the district court’s grant of summary judgment. It ruled that the defendant’s vice president was not a corporate representative for purposes of summary judgment, but rather, just a lay witness. Therefore, her deposition testimony regarding documents from the 1970s was inadmissible because she lacked personal knowledge of those events. Thus, the defendant could not rely on her testimony and failed to meet its burden for summary judgment.

On the opposite side of the spectrum, other courts have held that if a corporate witness deposed under Rule 30(b)(6) is made available at trial, they should be allowed to testify as to matters within “corporate knowledge” already testified to in the deposition.^[3] In Brazos River Authority v. GE Ionics, Inc, the Fifth Circuit extended the deposition principle that a designated witness testifies “vicariously” for the corporation into trial. At the same time, the court did not open the gate for limitless testimony by a corporate witness. Rather, the court reasoned that any testimony that was within “corporate knowledge or subjective beliefs” could be the subject of testimony at trial. For example, the court proposed a scenario where a corporate witness could testify to what one party told another corporate party because that becomes corporate knowledge of how the corporation understood a statement.

Striking the middle ground, some courts have embraced limited admission of “corporate knowledge” as trial testimony but balance the purposes of 30(b)(6) deposition testimony against the possibility of admitting testimony on hearsay. For example, one court in the Northern District of Illinois held that testimony of a non-party, corporate witness could be admitted into evidence because both the Federal Rules of Civil Procedure and the Federal Rules of Evidence permitted admission of the deposition testimony of an unavailable witness.^[4] The court recognized that strict enforcement of the personal knowledge requirement cuts against the purposes of the 30(b)(6) witness, namely to introduce testimony of matters known to the corporate entity and not an individual. However, parties cannot rely on a corporate witness to repeat “rank hearsay.” Thus, the court distinguished Brazos’ suggestion that “collective knowledge or subjective belief” could be admitted. Instead, topics such as corporate policies and procedures or the corporation’s opinion about whether a business partner complied with the terms of a contract are more appropriately admissible into trial.

Lastly, corporate parties may respond to an adverse party’s introduction of parts of its witness’s deposition testimony by introducing other parts of the testimony at trial^[5] or for impeachment purposes.^[6]

Other Methods of Introducing Corporate Evidence

Corporate parties do not have to rely solely on deposition testimony to introduce evidence within corporate knowledge. For example, the same documents reviewed by the corporate witness may be admissible at trial under the hearsay exception for ancient documents,^[7] discussed in a prior alert. A corporate party may also designate an expert witness to review the same and testify to an opinion based on the documents reviewed or summarize the evidence at trial.^[8]

Quick Recap and Lessons Learned

Adverse parties (such as plaintiffs suing corporate defendants) may introduce deposition testimony from a 30(b)(6) corporate witness for any purpose. Corporate parties, on the other hand, may be limited in introducing that same deposition testimony. These cases shows that courts will treat non-adverse corporate witnesses differently at trial, but that does not spell out doom for corporate defendants. There may be other ways to introduce that same information into evidence, such as a hearsay exception for ancient documents. In all cases, a careful attorney should guide you to consider the best way to introduce evidence at trial.

FOOTNOTES

^[1] This alert focuses on the law and procedures applicable in federal courts; state laws and rules regarding corporate witnesses and the use of their deposition testimony may differ.

^[2] Fermin Ramirez, et al. v. Avon Products Inc., 87 Cal. App. 5th 939, 304 Cal. Rptr. 3d 179 (2023).

^[3] Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006).

^[4] Sara Lee Corp. v. Kraft Foods Inc., 276 F.R.D. 500 (N.D. Ill. 2011) (interpreting Fed. R. Civ. P. R. 32(a)(1) and Fed. R. Evid. R. 804).

^[5] Fed. R. Civ. P. R. 32(a)(6); see Meier v. UHS of Delaware, Inc., No. 4:18-CV-00615, 2021 WL 2043187, at *4 (E.D. Tex. May 21, 2021).

^[6] Fed. R. Civ. P. R. 32(a)(2); see Gonzalez Prod. Sys., Inc. v. Martinrea Int'l Inc., 310 F.R.D. 341, 344 (E.D. Mich. 2015).

^[7] Fed. R. Evid. 901(8).

^[8] Fed. R. Evid. 703; Fed. R. Evid. 1006.