By Niall A. Paul, Timothy D. Houston and Keith D. Fisher

The situation is this: you represent a manufacturer in a tort dispute. During discovery, plaintiffs notice a Rule 30(b)(6) deposition of your client’s representative, but elect to forgo the deposition in exchange for negligible admissions filed by your client. Discovery has closed. The trial date is looming. A month out from trial, plaintiffs’ counsel begins to call, begins to e-mail – he needs more concessions, more admissions, more disclosure. The desperation is clear – plaintiffs’ counsel assumed certain witnesses, including your Rule 30(b)(6) designee, would be at trial, and has fatally misjudged his ability to make a case on the evidence obtained to-date.  

The phone calls and e-mails all have the same flavor – plaintiffs need to depose your Rule 30(b)(6) designee (the same one they passed on during discovery), scheduling order notwithstanding, because this is a trial deposition, not a discovery deposition. If your client will not agree to the deposition, plaintiffs will have to compel his attendance (notwithstanding the fact the witness lives on the other side of the country) to testify on all matters identified in the Rule 30(b)(6) notice. But plaintiffs are kind, they are merciful. All this inconvenience can be avoided if your client stipulates to a laundry list of bad facts and even worse admissions, most aimed at the very elements plaintiffs have the burden to prove, and all revealing just how short of the goal line plaintiffs’ drive will fall if they proceed to trial with the evidence they do have. What, up until that point, had been a cordial (or at least civil) working relationship with plaintiffs’ counsel has turned into a full blown street fight. What started with a handshake has turned into a wrestling match. This article endeavors to explore your potential arguments to combat such a situation and, with a bit of luck, how you can prevail.

A.    Is there really a difference between trial depositions and evidentiary depositions?

Your first line of defense against an opposing party’s attempt to parse the concept of a deposition into different tools for different jobs is simple – argue that there is no legally significant difference between the two. Despite the contention that there is a distinction between discovery and trial depositions, a number of jurisdictions have recognized that the two are synonymous. For instance, in Bobrosky v. Vickers, the United States District Court for the Western District of Virginia noted that “[i]n federal court there is no distinction between discovery and trial depositions.”¹  170 F.R.D. 411, 416 (W.D. Va. 1997) (citing Henkel v. XIM Products, Inc., 133 F.R.D. 556, 557 (D. Minn. 1991)). The Southern District of New York has reached a similar conclusion. See Donk v. Miller, 2000 WL 218400, *4-5 (S.D.N.Y. Feb. 24, 2000) (finding that “[t]he federal courts have not drawn a distinction between discovery depositions and trial depositions for many years.”). 

Indeed, a “district court’s identical treatment (for timing purposes) of discovery and de bene esse depositions is consistent with the language of the Federal Rules of Civil Procedure, which draw no distinction between the two. The federal rules simply limit the instances in which a deposition can be used at trial.” Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1362 n. 8 (11th Cir. 2002); see Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 558 (S.D. Cal. 1999) (holding that “[t]he Federal Rules of Civil Procedure do not distinguish between depositions taken for discovery purposes and those taken strictly to perpetuate testimony for presentation at trial”).²   

“Based upon the lack of distinction in the Federal Rules between trial and discovery depositions, . . . there is no difference between the two,” and “a sound argument can be made that if a party wishes to introduce deposition testimony at trial, that testimony should  be procured  during the time set by the court to conduct discovery absent exceptional circumstances.” Integra, 190 F.R.D. at 559 (citing Henkel v. XIM Products, Inc., 133 F.R.D. 556, 557-58 (D. Minn. 1991)). In that regard, and because “the . . . Rules . . . make no distinction . . .[,] both types of depositions are governed by the [trial court’s] scheduling order.” Sanofi-Synthelabo v. Apotex, Inc., 2005 WL 469594, *1 (S.D.N.Y. Feb. 18, 2005) (citing Donk v. Miller, 2000 WL 218400, *4-5 (S.D.N.Y. Feb. 24, 2000)).³   

B.    Try looking to the scheduling order for leverage.

In the majority of instances, the clear language of a trial court’s scheduling order will evince an intent to treat all depositions the same for purposes of pre-trial case management deadlines or, at the very least, an absence of an intent to treat them differently. A cursory examination of the scheduling order will often reveal the generic use of “deposition” or “depositions,” rather than a drawn out distinction between discovery and trial depositions for scheduling deadlines. Such an omission, however, is consistent with an interpretation of the Federal Rules:

"[f]or a court to treat discovery deadlines as applying to all depositions is not an uncommon or inherently unreasonable kind of shorthand to say “be done with deposition taking by ‘X’ date.” So, parties who delay in taking a needed deposition and who assume that a district court will draw (when the Rules do not and if the pretrial order does not) a distinction, for pretrial scheduling purposes, between different kinds of depositions assume a risk: they cannot count on the trial court’s allowing a deposition to be taken closer to the trial date."

Chrysler, 280 F.3d at 1362 n. 8.  

C.    Use any distinction to your advantage.

What to do, though, if the trial court accepts the distinction between discovery and trial depositions? Well, as the saying goes, when life gives you lemons, make lemonade. Here, argue that the deposition is actually a discovery deposition in disguise and therefore untimely. In Estenfelder v. Gates Corp., the United States District Court  for the District of Colorado, a court willing to consider a distinction between a discovery and trial deposition, articulated the standard for distinguishing between the two:

"[a]ttorneys normally do not depose their own witnesses, or “friendly” witnesses, for purposes of discovery . . . [because] the attorneys already know what these witnesses will say when they testify. . . . Thus, when requests for “trial depositions” are presented which reflect these types of circumstances, the expressed need to preserve the testimony of the witness may be viewed much differently, for example, than an expressed need to preserve the testimony of an opposing party, or an un-friendly witness. The former are more likely to be true requests for “trial depositions,” while the latter are more likely to be discovery depositions attempting to pose as trial depositions."

199 F.R.D. 351, 355 (D. Colo. 2001).

Try framing plaintiffs’ request for a “trial” deposition on the issues delineated in the Rule 30(b)(6) notice, topics on which none of your client’s representatives has ever testified, as the type of foray into the unknown that typifies a “discovery” deposition. Having issued the notice in the first place, the plaintiff sought testimony clarifying your client’s position on various topics without even knowing who the designee might be, much less what they might say. A plaintiff is hard-pressed to claim (at least in good faith) that he knows or can predict your corporate representative’s testimony so as to infuse the deposition with the characteristics of a trial deposition aimed at preserving that which is already known. Such a “deposition [is thus] sought by the lawyers for ulterior purposes” – to discover factual evidence and establish evidentiary foundations that the plaintiffs neglected to address during discovery – and “such findings provide appropriate support for a decision to deny a request for a trial deposition.” Estenfelder, 199 F.R.D. at 355.⁴   

D.    Stick to the playbook or, in this case, the Scheduling Order.

Another possible route worth exploring is the absence of “good cause” under Rule 16(b) to justify modifying the scheduling order. In our fictional case, the “good cause” claimed by the plaintiffs is self-inflicted – plaintiffs’ decision to forgo deposing your corporate representative during discovery. A number of courts have rejected the proposition that this type of pre-trial tactical gamble (and attendant loss) constitutes good cause.
    
In the context of Rule 16(b), “the focus of the inquiry is upon the moving party’s reasons for seeking modification. If that party was not diligent, the inquiry should end.” Integra, 190 F.R.D. at 560 (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). “The fact that the [plaintiffs] unilaterally decided to participate only selectively in pretrial discovery,” for whatever reason, “is not a justification for allowing them to take additional depositions [after the close of discovery].” Donk, 2000 WL 218400 at *5. Clearly, where a party “makes a tactical decision during discovery to refrain from deposing a non-party witness who is beyond the subpoena power of the court, but who nevertheless has relevant information to offer in the case, that party takes the risk that the testimony will not be presented at trial if the witness does not voluntarily appear.” Integra, 190 F.R.D. at 559.

Here, our fictional plaintiffs “made a tactical decision not to depose [your Rule 30(b)(6) corporate designee] during discovery, but never confirmed that he would be able to testify live at trial.” Id. at 560; see Sanofi-Synthelabo, 2005 WL 469594 at *1 (recognizing that “[d]epositions of fact witnesses who reside beyond the subpoena range of this Court were to have been conducted prior to the close of fact discovery, not long afterward”). “Suffice it to say, [plaintiffs], along with every other party, . . . [will have] had ample opportunity to participate in the discovery process . . . [and] could have taken any depositions that they needed for trial during the period allotted for that purpose. That they chose not to notice such depositions, or once noticed . . . chose not to [go forward], does not provide a justification for additional depositions . . . at [a] late date.” Donk, 2000 WL 218400 at *5.  

Put simply, a plaintiff’s election to forgo a Rule 30(b)(6) deposition, for whatever reason, and subsequent dissatisfaction with their strategic decision should not manufacture “good cause” under Rule 16(b) to conduct a deposition months after the close of discovery.⁵ If plaintiffs cannot “ma[ke] the required showing that they will be unable to present their case without such deposition[ ],” only that putting on their case will be more difficult, Donk, 2000 WL 218400 at *5, they have failed to establish good cause and their attempt to modify the scheduling order should fail.

E.    Goal line stance – Keeping your out-of-state Rule 30(b)(6) designee off of the witness stand.

You won the battle over discovery and trial depositions – now what? Plaintiffs are pulling out all the stops – they now claim that Rule 30(b)(6) compels the trial appearance and testimony of your corporate designee on the specific topics delineated in the Rule 30(b)(6) notice. Plaintiffs have blurred two very distinct and very important concepts: (i) the framework for deposing a corporation under Rule 30(b)(6), and (ii) the subpoena power under Rule 45. Such confusion has, more than once, resulted in the arguably unsupported conclusion that the framework for Rule 30(b)(6) depositions somehow enlarges the effect of Rule 45. 

The proposition that a party can compel the attendance of a witness formerly designated under Rule 30(b)(6) has been taken up and rejected by a number of courts. In Brazos River Authority v. GE Ionics, 469 F.3d 416, 434 (5th Cir. 2006), the Fifth Circuit recognized that “there is no rule requiring that the corporate designee testify ‘vicariously’ at trial, as distinguished from at the rule 30(b)(6) deposition . . . .” Similarly, in Hill v. National Railroad Passenger Corp., 1989 WL 87621 (E.D. La. July 28, 1989), one of the leading cases on the interplay between Rules 30(b)(6) and 45, the district court recognized that:

"Rule 30(b)(6) specifically applies to the deposition of a corporation. Rule 45 of the Federal Rules of Civil Procedure provides the proper procedure by which a person may be compelled to testify at trial. There is no provision allowing the use of the 30(b)(6)-type designation of areas of inquiry or allowing service on a corporation through an agent for service of process in order to compel a particular person, who may be a corporate employee outside the subpoena power of the court, to testify at trial."

Hill, 1989 WL 87621 at *1.

The Ninth Circuit has similarly rejected the argument that “because [Rule] 30(b)(6) permits a party to depose a corporation . . . by simply describing ‘with reasonable particularity the matters on which examination is requested’ and . . . letting the agency designate the individual[,] . . . the same policy should apply to Rule 45 requirements for subpoenaing witnesses.” Donoghue v. County of Orange, 848 F.2d 926, 931-32 (9th Cir. 1987). The Donoghue court concluded that it had “discovered no authority, and [plaintiff] cite[d] none, for the proposition that Rule 30 standards should [somehow] govern Rule 45 subpoenas of witnesses.” Donoghue, 848 F.2d at 931-32. In Cipollone v. Liggett Group, the United States District Court of the District of New Jersey similarly stated that “[n]othing in Rule 30(b)(6) permits [Plaintiffs] to compel the appearance at trial of a witness outside of the Court’s subpoena power granted by [Rule] 45(e)(1). . . . The rule neither states nor implies that such designation also amounts to a waiver of any objection to that witness’ appearance at trial.”⁶

F.    Plaintiffs are on their fourth down and have 100 miles to go.

Another argument at your disposal involves the 100 mile limitation imposed on compelled trial attendance under Rule 45. Remember, our fictional corporate representative lives on the other side of the country, well outside of the trial court’s jurisdiction. Rule 45(b)(2) provides that “[s]ubject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place: (A) within the district of the issuing court; (B) outside that district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection; . . . .”⁷  

“[A] court’s subpoena power is subject to Rule 45(c)(3)(A)(ii), which is part of a broader subdivision of Rule 45 [providing] various protections for a person subject to a subpoena.” Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 214-15 (E.D. La. 2008). Rule 45(c)(3)(A)(ii) provides that, “[o]n timely motion, the issuing court must quash or modify a subpoena . . . [requiring] a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person . . . .” Permitting a plaintiff to subpoena a Rule 30(b)(6) corporate representative to trial on a nation-wide basis requires a court to read a negative implication into Rule 45(c)(3)(A)(ii), that because the rule only references witnesses who are neither a party nor a party’s officer, “parties and their officers are subject to compulsion to attend trials that occur outside the 100 mile limit otherwise available to non-parties.” In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664, 666 (E.D. La. 2006) (finding that a party’s corporate officer could be compelled to attend trial more than 100 miles away under the court’s Rule 45 subpoena power).⁸ However, as recognized in Armenian Assembly of America, Inc. v. Cafesjian, 2010 WL 4258900, at *2-4 (D.D.C. Oct. 22, 2010), “an increasing number of courts have questioned the wisdom of this interpretation.” See Iorio v. Allianz Life Ins. Co. of North America, 2009 WL 3415689, *3 (S.D. Cal. Oct. 21, 2009) (concluding that “Rule 45 does not expand the Court’s subpoena power beyond the 100-mile radius for party officers.”).

Read in context, “Rule 45(b)(2) defines the scope of a court’s subpoena power and the places where a trial subpoena may be properly served . . . [while] Rule 45(c)(3)(A)(ii) imposes a limitation on that power but does nothing to expand the scope of the power beyond the parameters set forth in 45(b)(2).” Johnson, 251 F.R.D. at 215-16.⁹ Nothing in the language of Rule 45(b)(2) provides for service at any place other than those locations specified in the rule itself. See Chao v. Tyson Foods, Inc., 255 F.R.D. 556, 557 (N.D. Ala. 2009) (stating that “Rule 45(b)(2) does not . . . permit the Court to compel any person, whether or not a party, to appear at trial if that person resides beyond its geographic reach”). The usage of “subject to” in Rule 45(b)(2), cross-referencing Rule 45(c)(3)(A)(ii), “commonly refers to a constraint, and there is no reason to believe that it does not do so here.” Mazloum v. Dist. of Columbia Metro. Police Dept., 248 F.R.D. 725, 728 (D.C.C. 2008).¹⁰ The contrary position, however, “appears to interpret the phrase [subject to] as if it read: ‘In addition to the provisions of Rule 45(c)(3)(A)(ii), a subpoena may be served at any place . . .’ That is an odd construction.” Mazloum, 248 F.R.D. at 728; see Johnson, 251 F.R.D. at 217 (concluding that plaintiffs’ position “does not logically follow from the wording of Rule 45(c)(3)(A)(ii) or its relationship with Rule 45(b)(2) . . . [and] the Court would have to turn a . . . limiting clause on its head and ignore the territorial restrictions on where a trial subpoena may be properly served.”).  

As discussed above, a growing number of district courts have rejected the position that Rule 45(c)(3)(A)(ii) expands the service provision of Rule 45(b)(2), making a party, a party’s officer, or even a party’s Rule 30(b)(6) deposition designee subject to nationwide service.¹¹ Furthermore, nothing in the clear language of Rules 45(b)(2) or 45(c)(3)(A)(ii) supports a contrary position, and a number of courts have rejected the overture to arbitrarily expand the subpoena power under Rule 45(b)(2).¹²  

G.    With a bit of luck, you will have a reason to dump Gatorade on a co-worker.

In sum, strong arguments can be made to hold wayward plaintiffs, seeking “trial” depositions out of turn, to the terms of the scheduling order. Similarly, inasmuch as a case can be made or broken by the testimony of a Rule 30(b)(6) corporate designee, every effort should be made to keep plaintiffs honest in honoring the trial court’s scheduling order and the letter and spirit of the Federal Rules of Civil Procedure.

¹ See also Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003) (recognizing that the discovery rules “draw[ ] no distinction between depositions taken for purposes of discovery and those taken for use at trial”); Tatman v. Collins, 938 F.2d 509, 510 (4th Cir. 1991) (stating that “[t]he Federal Rules of Civil Procedure make no distinction for use of a deposition at trial between one taken for discovery purposes and one taken for use at trial (de bene esse).”).  Any distinction between discovery and trial depositions was arguably eliminated in the 1970 revision to the Federal Rules of Civil Procedure “[w]hen the subject matter of Rule 26(a) was transferred to Rule 30(a) [and] the language authorizing depositions ‘for the purpose of discovery or for use as evidence in the action or for both purposes’ was omitted.”  Tatman, 938 F.2d at 511 (quoting United States v. Int’l Business Machine, 90 F.R.D. 377, 381 n. 7 (S.D.N.Y. 1981)).
² But see Mathews v. Denver Newspaper Agency LLP, 2009 WL 112819 (D. Colo. Jan. 15, 2009).
³ See Spangler v. Sears, Roebuck and Co., 138 F.R.D. 122, 126-27 (S.D. Ind. 1991) (recognizing that “no distinction was made in this court’s orders between discovery and trial depositions, nor is there an explicit authorization for such a distinction in the Federal Rules of Civil Procedure or reported case law”).
⁴ A plaintiff’s professed need to identify, authenticate, or otherwise establish an evidentiary foundation for the use of documents at trial is a fundamental purpose of discovery and alone should constitute grounds to deny the deposition.
⁵ Absent an “agreement of the parties, or some compelling circumstance that would cause a miscarriage of justice if a late deposition is not allowed, all depositions must be completed . . . by the discovery termination date of the pretrial schedule. . . . [Indeed], [i]f such a compelling circumstance exists, the burden is on the party seeking to take the untimely deposition to make a motion and to show good cause for granting relief . . . .”  Henkel, 133 F.R.D. at 558 n. 3.  
⁶ See Richard J. Oparil, “Procuring Trial Testimony From Corporate Officers and Employees: Alternative Methods and Suggestions for Reform,” 25 AKRON LAW REV. 571, 590 n. 111 (1992) (quoting Cipollone v. Liggett Group, No. 83-2864 (SA) (D. N.J. Jan. 27, 1988), Transcript, at 73 (Feb. 2, 1988)).  Square D Co. v. Breakers Unlimited,Inc., 2009 WL 1702078 (S.D. Ind. June 11, 2009), warrants a brief discussion.  In Square D, the corporate designees were deposed and testified on behalf of the defendant-corporation, and were subsequently compelled to attend and testify at trial. Square D, however, was not decided per strict adherence to the Federal Rules, but by the district court’s understanding and exercise of its inherent authority; specifically, to compel a defendant-corporation to produce witnesses who were outside of the district court’s subpoena power, but that had already testified on the corporate-defendant’s behalf, to offer that same testimony at trial to avoid a stirring recitation of deposition testimony by counsel under Rule 32(a)(3).  Square D, 2009 WL 1702078 at *2.  
⁷ Fed. R. Civ. P. 45(b)(2)(A), (B) (emphasis added).
⁸ A majority of courts align with the rationale articulated in Vioxx.  See Seiter v. Yokohama Tire Corp., 2009 WL 3663399 (W.D. Wash. Nov. 3, 2009);  Creative Science Systems, Inc. v. Forex Capital Markets, LLC, 2006 WL 3826730 (N.D. Cal. Dec. 27, 2006); American Fed. of Gov’t Employees Local 922 v. Ashcroft, 354 F. Supp. 2d 909 (E.D. Ark. 2003).  But see Lyman v. St. Jude Medical S.C., Inc., 580 F. Supp. 2d 719, 733-34 (E.D. Wis. 2008).
⁹ See Dolezal v. Fritch, 2009 WL 764542, *1-2 (D. Ariz. Mar. 24, 2009).
¹⁰ See Johnson, 251 F.R.D. at 216 (holding that “[t]he phrase ‘subject to’ ordinarily operates to limit a power or right, not expand it . . . . When a rule or statute defining a judicial power or a legal right is ‘subject to’ a cross-referenced rule or statute, the ordinary sense of that construction is that the power or right is limited by the cross-referenced provision.”).  
¹¹ But see note 8, supra.
¹² Chao rejected the proposition that Rule 45(c)(3)(A)(ii) extended the scope of 45(b)(2), finding that the use of “subject to” in cross-referencing Rule 45(c)(3)(A)(ii) “indicates that it is only intended to limit the court’s power, not expand it.  It is also too tenuous an inference to conclude that because a court is not required to quash a subpoena issued to a party or a party’s officer under Rule 45(c)(3)(A)(ii), it . . . has the power to compel the attendance of a party witness who was served beyond the explicit geographical limitations . . . .”  Chao, 255 F.R.D. at 559.