The Rule 30(b)(6) deposition is the process by which a litigant may depose a corporation or other business entity. While it is impossible for a corporation to be deposed in the literal sense, the corporation must designate one or more representatives who will testify on its behalf.
The 30(b)(6) discovery device is being increasingly utilized by litigants because of its unique features. For instance, the testimony of a 30(b)(6) witness is binding upon the company, regardless of the designee’s personal knowledge of the subject matter or relationship to the company. Great Am. Ins, Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 538 (D.Nev. 2008). The designee must also be prepared with all information reasonably available to the company on the topics specified in the deposition notice. Bd. Of Tr. of the Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008)(holding that Rule 30(b)(6) explicitly requires an organization to have persons testify on its behalf as to all matters known or reasonably available to it and, therefore, implicitly requires persons to review all matters known or reasonably available to it in preparation for the deposition). Further, sanctions are frequently imposed if a witness has been inadequately prepared. Most frequently these sanctions are monetary, but they may event take the form of evidence preclusion. Great Am. Ins, Co. of N.Y., at 542-543 (D.Nev. 2008)(discussing the range of typical sanctions); Pacificorp v. Northwest Pipeline GP, 2012 WL 613155, *14 (D.Or. 2012)(requiring the corporate deponent to adequately prepare its witness and pay the legal fees associated with a second 30(b)(6) deposition); Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2013 WL 4101811, 8-9 (D.Nev. Aug. 13, 2013)(ordering preclusion of evidence as a sanction for having failed to adequately prepare a rule 30(b)(6) deponent).
With binding testimony, an obligation to thoroughly prepare, and sanctions readily available to redress a failure in preparation – it is hardly a surprise that use of 30(b)(6) depositions is on the rise. Yet, the ability to take advantage of these benefits hinges upon the existence of a proper Rule 30(b)(6) notice. A deficient notice will often trigger a motion for protective order, but even if it does not, it can give the deponent an argument that its otherwise shoddy preparation was adequate given the lack of clarity in the notice. This article discusses considerations in properly drafting, as well as responding to, a Rule 30(b)(6) notice.
I. Considerations in Drafting the Rule 30(b)(6) Notice
A. Issue One 30(b)(6) Notice per Business Entity
A common mistake for a lawyer issuing a 30(b)(6) notice is to assume that because there is no limit on the number of topics, there is also no limit on the number of times you can notice and take the deposition of a corporation. That is not so. The “one bite at the apple” rule applies to Rule 30(b)(6) depositions.
Several courts have considered whether Rule 30(a)(2)(A)(ii), which requires leave of court before taking a deposition of the same person twice, applies with the same force to corporate defendants. Numerous courts have held that the “one bite at the apple” rule applies to corporations just as it does to natural persons.
“The policy against permitting a second deposition of an already-deposed deponent is equally applicable to depositions of individuals and organizations. Taking serial depositions of a single corporation may be as costly and burdensome, if not more so, as serial depositions of an individual. In both cases, each new deposition requires the deponent to spend time preparing for the deposition, traveling to the deposition, and providing testimony. In addition, allowing for serial depositions, whether of an individual or organization, provides the deposing party with an unfair strategic advantage, offering it multiple bites at the apple, each time with better information than the last.”
State Farm Mut. Auto Ins. Co. v. New Horizont, Inc., 254 FRD 227, 233-235 (E.D. Penn. 2008). See also In re Sulfuric Acid Antitrust Litigation, 2005 WL 1994105, *2 (N.D. Ill. 2005); Groupion, LLC v. Groupon, Inc., 2012 WL 359699, *5-6 (N.D. Cal. 2012). These cases stand for the proposition that if a party notices and takes a 30(b)(6) deposition at an early stage of a case, that party will not automatically be able to notice and take another 30(b)(6) deposition on different topics later in the case.
The result in these cases suggests that preparing one, comprehensive Rule 30(b)(6) deposition notice with all potential topics is the best practice. If in response to such a notice the corporation has to designate several witnesses, it will still be counted as only one deposition. New Horizont, Inc., at 233-235 (citing the Advisory Committee Notes to the 1993 amendments to Rule 30(a)(2)(A)). Once a consolidated notice is prepared, the parties can decide if certain topics should be covered at an early stage of the case, and others at a later stage.
B. The Topics Must Be Described with “Reasonable Particularity.”
Rule 30(b)(6) provides that the noticing party “must describe with reasonable particularity the matters for examination.” Fed.R.Civ.P. 30(b)(6). While the question whether a particular topic has been stated with “reasonable particularity” will depend on the particular facts of each case, some courts have more generally interpreted the phrase to mean “painstaking specificity.” Kalis v. Colgate-Palmolive Co., 241 F.3d 1049, 1057, Fn 5 (7th Cir. 2000) citing Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D.Minn.2000) (“[T]he requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.”).
In addition to definitional refinements like “painstaking specificity,” courts have also provided express examples of pitfalls to avoid. The most overarching prohibition is: “Where…the defendant cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible.” Reed v. Bennett, 193 F.R.D. 689, 692 (D.Kan. 2000). Accordingly, a notice must avoid phrases such as “including but not limited to.” Such a topic would put the corporation to the impossible task of preparing for an open-ended, and theoretically infinite subject. Id. Where possible, the 30(b)(6) notice should “be limited to a relevant time period, geographic scope, and related to claims” that are at issue in the case. Young v. United Parcel Serv. of Am., Inc., 2010 WL 1346423, *9 (D.Md. Mar. 30, 2010).
The text of the rule and above authorities make clear that it is better to err on the side of greater specificity when issuing a Rule 30(b)(6) notice. This is particularly so because there is no set limit for 30(b)(6) topics. In one recent case, a district court permitted 50 topics:
“At first blush, the number of topics raises the question of whether the notices are unduly burdensome. Upon closer examination, the large number of topics results from the fact that Plaintiff was quite specific in her topic descriptions. Plaintiff could have grouped them into a smaller number of topics while still meeting her duty under Rule 30(b)(6) to describe the areas of testimony with reasonable particularity. The deposition notices are not unduly burdensome, oppressive or harassing based on the number of identified topic areas.”
Tamburri v. SunTrust Mortg. Inc., 2013 WL 1616106, at *2 (N.D. Cal. April 15, 2013). Courts frequently allow 30 or more topics. See e.g. Krasney v. Nationwide Mut. Ins. Co., 2007 WL 4365677, *4 (D.Conn. Dec. 11, 2007)(upholding 35 of 40 topics).
There are far more benefits than detriments to articulating your 30(b)(6) topics with a high degree of specificity. For instance, in Tamburri, the court held that 50 topics were not unreasonable, in part, because of the great specificity of the topics. Highly specific topics will also deny any refuge to an unprepared witness. There will be no legitimate argument that the topic was ambiguous, so when the unprepared witness cannot answer, sanctions of some kind will be more likely.
II. Obtaining Protection from an Improper Notice.
As a practical matter, the responsibility for ensuring that the Rule 30(b)(6) notice is sufficiently specific and clear rests as much with the prospective deponent as it does with the noticing party. No lawyer should permit her client to spend hours of unnecessary time preparing for deposition based upon a vague 30(b)(6) notice. No lawyer should expose her client to potential sanctions when the client inevitably cannot answer all questions that theoretically fall within an overly broad and open-ended topic. If upon reviewing the 30(b)(6) notice lawyer and client cannot ascertain what must be done to prepare, or, if preparation would be overly burdensome because of the unreasonable breadth of the topic, the lawyer should confer and then move for a protective order if necessary.
It is a common misperception – even among seasoned lawyers – that serving written objections to a 30(b)(6) notice is sufficient to protect the client from an improper notice. It is not. Such objections are essentially useless. “The proper procedure to object to a Rule 30(b)(6) deposition notice is not to serve objections on the opposing party, but to move for a protective order.” Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 406 (E.D.N.C. 2014). A corporate deponent cannot simply make “objections and then provide a witness that will testify only within the scope of its objections.” Id. “Unlike the procedure with respect to interrogatories, requests for production of documents and requests for admissions, there is no provision in the rules which provides for a party whose deposition is noticed to serve objections so as to be able to avoid providing the requested discovery until an order compelling discovery is issued.” New England Carpenters Health Benefits Fund v. First Databank, Inc., 242 F.R.D. 164, 165-166 (D.Mass. 2007).
The first step in protecting the prospective deponent from an improper 30(b)(6) notice is to confer with opposing counsel in an attempt to clarify or limit the objectionable topics. For this purpose, written objections may certainly serve as a starting point. The defending lawyer should push for as much clarity and precision as possible, as that will enable the prospective deponent to engage in focused preparation and will also decrease the chance that the witness will be unprepared.
If conferring with opposing counsel does not result in a proper 30(b)(6) notice, then moving for a protective order under Rule 26(c) is the only reasonable option. Fed. R. Civ. P. 26(c). The motion may seek to have the entire notice quashed, or to have specific topics modified or quashed. If the notice generally lacks specificity or is otherwise replete with defects that are susceptible to correction, then courts often quash the entire notice and provide leave for the notice to be re-issued consistent with the court’s opinion. See Murphy v. Kmart Corp., 255 F.R.D. 497, 518 (D.S.D. 2009); Reed v. Bennett, 193 F.R.D. 689, 693 (D.Kan. 2000); Gulf Production Co. Inc. v. Hoover Oilfield Supp., Inc., 2011 WL 2669294 (E.D. Louisiana 2011). If, however, the protective order is being sought on grounds that cannot readily be cured with an amended notice – then the court may quash the notice in its entirety, and without leave to re-issue the notice. See SEC v. Buntrock, 217 F.R.D. 441, 444, 448 (N.D.Ill. 2003)(quashing a 30(b)(6) notice which was “an inappropriate attempt to depose opposing counsel…”). If only specific topics are problematic, then consider moving to quash only those specific topics in the hope that they will be excised from the notice without leave to re-issue them in a modified form. See e.g. Chechele v. Ward, 2012 WL 4383405, *4 (W.D.Okl. Sept. 25, 2012).
Pitfalls in Rule 30(b)(6) Depositions of Civil Law Enforcement Authorities
Defendants find many ways to make mischief in our enforcement cases. This article explores the special problems that arise when a defendant notices the deposition of a civil enforcement plaintiff under Fed. R. Civ. P. 30(b)(6) seeking information about the government’s case. While depositions of government agencies are explicitly permitted under Rule 30(b)(6), unique problems arise when the agency happens to be a government law office serving as trial counsel in an enforcement action and also conducted or supervised the underlying investigation. The stakes can be high: work product and other privileges are placed at risk because trial counsel is often the only person with complete knowledge of all the facts and, therefore, the only person in a position to testify or prepare a witness to testify.
The good news is that many courts refuse to permit Rule 30(b)(6) depositions of law enforcement authorities under such circumstances. Many courts recognize that such depositions “amount to an attempt to depose the adversary’s attorney” because they necessarily “involve the testimony of attorneys assigned to the case, or require those attorneys to prepare other witnesses to testify.” Work product can bleed into 30(b)(6) testimony because the facts are often intertwined with trial counsel’s mental processes and legal strategies. The bad news is that, over the years, sophisticated defendants have managed to carve out exceptions to the general approach of prohibiting Rule 30(b)(6) depositions of enforcement plaintiffs; other courts have required these depositions to proceed as noticed. While these courts’ reasoning varies, it usually boils down to the view that defendants have an absolute right to depose the government under Rule 30(b)(6).
When faced with a Rule 30(b)(6) deposition, the likelihood of prevailing in a motion to quash or for a protective order increases if a defendant was previously provided with overlapping discovery or a less burdensome means of discovery can generate the same information. Even courts that are unwilling to rule that the Rule 30(b)(6) deposition equates to a deposition of trial counsel may be willing to view the deposition as cumulative or duplicative under Rule 26(b)(2). With careful planning, this Rule 30(b)(6) minefield can be effectively navigated and defused by expert and novice attorneys alike.
I. The Basics of Rule 30(b)(6) Depositions and Attorney Deposition
A. The government is an “organization” subject to deposition under Rule 30(b)(6).
As an initial matter, it is beyond dispute that government offices may be deposed just like any other entity. Rule 30(b)(6) permits depositions of “organizations” and explicitly lists “government agency” as one of the entities subject to deposition:
Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a government agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify….
Such a rule makes sense. Government agencies should be subject to deposition where a witness must be produced, for example, to testify about an agency’s normal operations. While this aspect of Rule 30(b)(6) is likely familiar to most readers, things become trickier when the government office being deposed happens to be a law office (such as an attorney general’s office), which is prosecuting the underlying enforcement action that it also investigated. In the latter situation, the stakes can become high — the deposition can implicate concerns ranging from waiver of work product, attorney client, or other privileges to placing trial counsel in the untenable position of being directly deposed. None of these options play out well for the government. For this reason, it is important to have a general understanding of the rules regarding depositions of attorneys in general, and of opposing counsel in particular, before attempting to resist a 30(b)(6) deposition.
B. There is no prohibition against attorney depositions.
Contrary to popular belief, attorneys enjoy no blanket immunity from being deposed. The law recognizes that attorneys, including trial counsel, may be deposed just like “any person” under the rules of civil procedure. Generally, the party seeking to prevent any deposition from proceeding bears a heavy burden of demonstrating why it should not proceed. When the potential deponent is opposing counsel, however, the burden shifts back to the party seeking the deposition to establish its necessity. Litigants are often unable to carry this burden, and courts recognize such depositions can “embroil the parties and the court in controversies over the attorney client privilege and more importantly, involve forays into the area most protected by the work product doctrine—that involving an attorney’s mental impressions or opinions.” Noticing a Rule 30(b)(6) deposition where plaintiff’s counsel must effectively serve as the designee only leads to endless disputes over whether the questioning invades privilege and work product, delaying the progress of the case to the government’s detriment and the defendant’s advantage.
Depositions of opposing counsel are disfavored. When a deposition is directed to an attorney who is also serving as trial counsel in the underlying case, courts have recognized these circumstances can present “unique opportunities for harassment.” As one court observed, “because deposition of a party’s attorney is usually both burdensome and disruptive, the mere request to depose a party’s attorney constitutes good cause for obtaining a Rule 26(c), Fed. R. Civ. P., protective order, unless the party seeking the deposition can show both the propriety and need for the deposition.”
The leading case on the standards for deposing opposing counsel is the Eighth Circuit case of Shelton v. American Motors Corporation. In Shelton, the court reaffirmed the widespread disfavor of attempts to depose opposing counsel, establishing a three-part test for situations in which a deposition of opposing counsel is implicated. To take such a deposition, a party must establish that: “(1) no other means exist to obtain the sought information; (2) the information is relevant and nonprivileged; and (3) the information is crucial in the case.” The Shelton standard is difficult to meet, resulting in the prohibition of attorney depositions or their equivalents under Rule 30(b)(6) in many cases.
II. Rule 30(b)(6) Depositions of Enforcement Authorities that Investigated the Underlying Case—The Current Landscape.
Rule 30(b)(6) requires the responding organization to designate persons who will “testify as to matters known or reasonably available to the organization.” Because an enforcement authority’s only knowledge of its enforcement case often resides exclusively with its attorneys, a Rule 30(b)(6) deposition of the plaintiff in an enforcement case can arguably amount to an actual or practical deposition of the government’s trial counsel. Unsurprisingly, the case law is inconsistent.
A. Many courts have held that deposing the plaintiff under Rule 30(b)(6) in a civil enforcement case constitutes the practical equivalent of deposing trial counsel.
A number of courts have granted protective orders to the government or denied defense motions to compel in cases where defendants have attempted to depose enforcement plaintiffs under Rule 30(b)(6). Several leading cases that have ruled in favor of the government are discussed below.
Securities and Exchange Commission v. Rosenfeld
In Securities and Exchange Commission v. Rosenfeld., the defendant served a Rule 30(b)(6) deposition notice that listed 11 categories or topics purportedly relating to the SEC’s investigation of the defendant and the resultant civil enforcement complaint. The SEC initially asked the defendant to retract the deposition notice on the grounds that the designated topics involved the SEC’s secondhand knowledge and delved into protected work product, but the defendant refused. The SEC also stressed that the defendant had not made the showing required under Rule 26(b)(3) for accessing work product because he had only conducted limited discovery, had not shown a substantial need for the deposition, nor first sought the discovery from other sources. The defendant argued he was not seeking to depose opposing counsel. The SEC was free to designate whomever it wished and the SEC designee was not required to have firsthand knowledge of the facts. The court rejected the defendant’s arguments in rather terse fashion, rebuking him for
[D]isingenuously avoid[ing] the fact that this action is an SEC enforcement proceeding seeking a determination as to whether defendant has violated the security laws of this country, and that because such investigations are conducted by the SEC’s legal staff, a Rule 30(b)(6) deposition of an SEC official with knowledge of the extent of that investigative effort, amounts to the equivalent of an attempt to depose the attorney for the other side.”
The court held that, because Rule 30(b)(6) requires the designee be prepared to answer questions fully, completely, and without evasion, a Rule 30(b)(6) deposition of the SEC would impermissibly intrude upon the SEC’s attorney’s work product:
Thus the witness designated would have to have been prepared by those who conducted the investigation and, since the investigation was conducted by the SEC attorneys, preparation of the witnesses would include disclosure of the SEC attorneys’ legal and factual theories as regards the alleged violations of the security laws of this country and their opinions as to the significance of documents, credibility of witnesses, and other matters constituting attorney work product.
The court took the added step of examining and rejecting each topic of testimony sought by the defendant, noting that certain topics involved protected communications with the SEC’s trial counsel, could be addressed through preliminary interrogatories and document requests, or involved premature contention discovery. The court also held that a Rule 30(b)(6) deposition of the SEC could compromise the common prosecutorial interest it shared with the Ontario Securities Commission because certain topics sought information obtained from the latter agency. The court recognized that a Rule 30(b)(6) deposition of the SEC “would undoubtedly place an undue burden on the SEC and the court, which would have to make a multitude of otherwise unnecessary decisions about issues of attorney work product and law enforcement privilege.”
The court concluded by holding that the information the defendant sought was derived from the investigation conducted by SEC attorneys and staff working under them, and the only way that the SEC could comply with the deposition notice would be to designate its attorneys as the deponents or other personnel who would have to be taught the case by the SEC attorneys. This, the court held, would inevitably constitute an improper invasion of the attorneys’ work product, because the deposition necessarily would delve into “how the SEC intends to marshal its facts, documents, and testimonial evidence, and . . . the inferences the SEC believes can be drawn from that evidence.”
Securities and Exchange Commission v. Buntrock
Securities and Exchange Commission v. Buntrock involved a civil fraud enforcement action brought by the SEC against individual corporate officers of Waste Management, Inc. The SEC alleged that the corporate officers manipulated the stock price of the corporation over a course of five years, resulting in a $1.7 billion accounting restatement — the largest in history at the time —along with significant profits for themselves from inflated bonuses and insider trading.
During the course of discovery, one of the defendants noticed the SEC’s deposition and listed 12 topics of testimony relating to the results of the SEC’s investigation. The SEC sought a protective order arguing that the deposition effectively required it to produce its attorneys for deposition, which constituted an impermissible invasion of attorney work product and other privileges. The defendant argued that the SEC was free to designate whomever it wished, that he was only seeking “facts” underlying the SEC’s case, and that no other means existed for him to obtain the requested information.
The court noted that the SEC had already produced 200 boxes of documents, a 12-page witness list, investigative testimony and related exhibits from 49 witnesses, a seven-page explanation of the elements and calculation of the disgorgement sought from each defendant, and evidence summaries from previous investigations and proceedings involving Waste Management, Inc. The parties also agreed to a deposition list of 20 witnesses, designating five priority witnesses each. Defendants did not identify the SEC in their witness lists.
The court granted the protective order. The court held that, because the SEC and its employees conducted the investigation at the direction of attorneys, the defendant’s Rule 30(b)(6) deposition notice was “an inappropriate attempt to depose opposing counsel and to delve into the theories and opinions of SEC attorneys.” According to the judge, “the notice seeks, if not the deposition of opposing counsel, then the practical equivalent thereof.” [T]he 30(b)(6) notice would necessarily involve the testimony of attorneys assigned to the case, or require those attorneys to prepare other witnesses to testify.” The court also rejected the defendant’s attempt to distinguish the Rosenfeld case, holding that “[h]ere, we are dealing with the results of an attorney-conducted and -directed law enforcement investigation.”
Buntrock also sheds light on two common defense arguments made in Rule 30(b)(6) deposition challenges: a defendant’s claim it is merely seeking “facts,” not work product and the claim that no other means exist by which the defendant can obtain requested information. The court noted that, as to the argument that defendant was only seeking “facts,” that defendant was seeking not just “facts,” but also was seeking the SEC’s theories about the facts, how the SEC intends to marshal those facts, and the SEC’s belief as to the inferences to be drawn from those facts. The defendant’s claim that he had no other means to learn these “facts” also failed given the large volume of discovery that he had already received from the SEC.
Buntrock thus demonstrates that civil enforcement attorneys would do well to answer discovery requests promptly and comprehensively early in the case, especially before a Rule 30(b)(6) deposition is attempted by the defense.
Securities and Exchange Commission v. SBM Investment Certificates, Inc.
Securities and Exchange Commission v. SBM Inv. Certificates, Inc. involved an attempt by the defense to depose the SEC on 10 topics. The SEC moved for a protective order to quash the deposition. Citing Fed. R. Civ. P. 26(b)(2), the court noted that “discovery requests . . . may be limited,” and reviewed the work product standard set forth in Rule 26(b)(3). The court quoted from the central ruling in Securities and Exchange Commission v. Rosenfeld, noting in particular that the Rosenfeld court “gave particular emphasis to the fact that the SEC is a law enforcement agency, and the deposition sought would have involved inquiry into the law enforcement investigation conducted by the SEC’s legal staff.” The court observed that the Rosenfeld court “considered it significant that the defendant had not attempted to use other means of discovery . . . and had also not demonstrated how he would be prejudiced by being required to use these discovery tools instead of the notice of deposition.” The court concluded that “[t]he reasoning expressed in Rosenfeld is persuasive, and applies with equal force to this case, which presents a nearly-identical factual situation.”
Equal Employment Opportunity Commission v. Evans Fruit Company, Inc.
In Equal Employment Opportunity Commission v. Evans Fruit Co., the EEOC filed a motion for a protective order seeking to prevent the defendant’s Rule 30(b)(6) deposition. The court granted the protective order and observed that the 20 “broad and wide-ranging categories of inquiry” listed in the defendant’s Rule 30(b)(6) notice,
[E]ffectively seek information regarding [the] EEOC’s interpretation or evaluation of how particular facts support or refute the allegations in the EEOC’s First Amended Complaint. More fundamentally, the categories of inquiry seek information as to how and why the EEOC determined it should proceed with this case. As such, they impermissibly seek attorney work product and/or information which is subject to the government’s deliberative process privilege.
Equal Employment Opportunity Commission v. McCormick & Schmick’s Seafood Restaurants, Inc.
In Equal Employment Opportunity Commission v. McCormick & Schmick’s Seafood Restaurants, Inc., the EEOC objected to defendant’s Rule 30(b)(6) notice which listed 15 topics to be covered by the deposition, seeking information about employees and witnesses, and the EEOC’s allegations and policies. Relying heavily on its opinion in Securities and Exchange Commission v. SBM Inv. Certificates, Inc., and quoting Rule 26(b)(2), the court observed that,
On its own initiative or in response to a motion for protective order under Rule 26(c), a district court may limit “‘the frequency or extent of use of the discovery methods otherwise permitted’” under the Federal Rules of Civil Procedure if it concludes that “(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit.”
The court also reviewed various defense arguments made in light of similar arguments rejected in SBM Inv. Certificates, Inc., including the judge’s discussion of the work product doctrine under Rule 26(b)(3) and his reliance on Rosenfeld, and concluded that opinion work product was implicated. The court also rejected the defendant’s contention that the EEOC could designate someone other than counsel, noting that the EEOC “had no independent knowledge of the events at issue and could only speak to matters known through attorney involvement in anticipation of litigation, which would inevitably invade opinion work product.” Noting that SBM Inv. Certificates, Inc. expressly rejected the argument that the deposition could proceed “subject to objections and assertions of privilege regarding individual questions because the noticed subject areas facially sought attorney work product,” the court held that SBM Inv. Certificates, Inc.’s “persuasive reasoning applies equally here where the subjects outlined in the 30(b)(6) deposition notice on their face seek attorney work product and would require the deposition of EEOC counsel or a proxy prepared by counsel.”
Notably, the court recognized that the EEOC would suffer undue burden by “[t]he need to prepare a proxy … particularly where the underlying factual information is readily obtainable through other discovery means,” and the individual objections “would likely involve recourse to this Court and a significant burden on this Court’s time that would be lessened by other means of discovery.” The court rejected the contention that defendants were only seeking “factual information,” ruling that the defendants’ notice “does not ask for the underlying facts, but EEOC’s counsel’s interpretation of the facts and how they have chosen to proceed in preparing their case.”
Equal Employment Opportunity Commission v. Source One Staffing, Inc.
In Equal Employment Opportunity Commission v. Source One Staffing, Inc., the court granted a blanket protective order to EEOC on the grounds that certain topics related to the EEOC’s pattern and practice claims were not appropriate for deposition because the defendant had only recently produced its payroll data and job assignment information, which the EEOC’s expert was reviewing. “Until the process is completed, the EEOC cannot provide Source One with the information it wants.” The court also ruled that a topic geared toward ensuring the EEOC had produced all non-privileged material collected during its investigation was duplicative because the EEOC had already produced its investigative file. A topic that sought information about the EEOC’s policies, procedures and/or practices” was deemed off-limits because it improperly delved into the sufficiency of the EEOC’s investigation, which was prohibited under Seventh Circuit law.
B. Many courts have ordered Rule 30(b)(6) depositions of enforcement authorities to proceed as noticed.
Many courts have been unsympathetic to enforcement plaintiffs’ arguments regarding the perils of proceeding with their Rule 30(b)(6) depositions. While some cases present arguably distinguishable facts, others do not. For example, courts often cite the plain language of Rule 30(b)(6) stating “a party may name as the deponent . . . a government agency” as the primary reason such depositions should proceed, offering little additional analysis. Discussed below are some of the leading cases that have required Rule 30(b)(6) depositions of enforcement authorities to proceed as noticed.
Securities and Exchange Commission v. Kramer
In Securities and Exchange Commission v. Kramer, the court reviewed prior trial and discovery rulings and overturned the magistrate judge’s ruling denying the defendant’s motion to compel the SEC to submit to a Rule 30(b)(6) deposition.” The defendant’s 30(b)(6) notice sought testimony about,
The specific facts, information, documents, and/or other evidence specifically relied upon by the [SEC] which support a specific cause of action and claim(s) for relief asserted by the [SEC], specifically against Mr. Kramer … which asserts, inter alia, that Mr. Kramer violated the Broker Dealer Registration provisions of the Exchange Act.
The court reviewed the general rules regarding Rule 30(b)(6) depositions, observing that “Rule 30(b)(6) expressly applies to a government agency and provides neither an exemption from Rule 30(b)(6) nor ‘special consideration concerning the scope of discovery, especially when [the agency] voluntarily initiates an action.’” The court seemed persuaded by the defendant’s argument he was only seeking to “discover facts underlying the claim against him” and the SEC “could designate any person (i.e., someone other than counsel) to depose in response to Kramer’s request.” The Kramer court did not provide insight into why it was unwilling to consider the SEC’s arguments regarding its role as a government enforcement plaintiff.
Securities and Exchange Commission v. Merkin
In Securities and Exchange Commission v. Merkin, the trial court upheld a magistrate judge ruling that the SEC was not categorically exempt from a 15 topic Rule 30(b)(6) deposition noticed by the defendant. The Merkin court relied heavily on Kramer in its analysis, noting that none of the parties had submitted “any binding Supreme Court or Eleventh Circuit opinions involving civil litigants’ efforts to obtain 30(b)(6) depositions from the SEC or any other federal agencies.”
The court reviewed a number of authorities which concluded that the government enjoyed no special status or exemption as a litigant or deponent, including Judge Sheindlin’s opinion in Securities and Exchange Commission v. Collins & Aikman Corp., where she noted that the government (in a document production dispute) “is not entitled to special consideration concerning the scope of discovery, especially when it voluntarily initiates an action.” The Merkin court further observed that “[t]he mere fact that it might be an SEC attorney preparing a government investigator as the designee instead of a private attorney preparing the client’s current or former employees is not a meaningful distinction.” Ordering that the deposition proceed on a question-by-question basis with privilege objections to be interposed by the SEC as needed, the court streamlined the deposition by eliminating eight topics it deemed “irrelevant and/or overly broad.”
Securities and Exchange Commission v. McCabe
In Securities and Exchange Commission v. McCabe, in denying the motion for a protective order, the court simply focused on the fact that “Rule 30(b)(6) expressly applies to a government agency and provides neither an exemption from Rule 30(b)(6), nor ‘special considerations concerning the scope of discovery, especially when [the agency] voluntarily initiates an action.’”
Federal Trade Commission v. DIRECTV , Inc.
Federal Trade Commission v. DIRECTV , Inc. is a case worth noting, because, while the court condemned the defendant’s attempt to directly depose the FTC’s trial counsel, it cited the prospect of a Rule 30(b)(6) deposition of the FTC as a viable alternative to trial counsel’s deposition. In DIRECTV , the defendant attempted to depose the FTC’s trial counsel regarding his alleged communications with the state attorneys general of all 50 states in connection with a multistate settlement the states reached with DIRECTV in 2011. The defendant argued the discovery supported an affirmative defense related to the preclusive effect of the 2011 settlement in the present case. The FTC argued that such depositions were permitted only in extraordinary circumstances which were not present in the case, because the defendant already had all the information regarding such communications. Relying on the three-part analysis for attorney depositions set forth in Shelton, the court concluded that the defendant had “not met its burden to overcome the strong presumption against deposing counsel during active litigation.” The court held that “given that DIRECTV ’s own counsel were party to those communications, it is clear that DIRECTV knows what was said during conversations between its lawyers and FTC counsel.” However, the court observed that “DIRECTV has not shown why it cannot seek the same information directly from the FTC through a Rule 30(b)(6) deposition.” Concluding the appropriate course of action was for the defendant to seek discovery about the communications directly from the FTC itself, the court remarked that “it appears DIRECTV has already done precisely that, as it noticed the FTC’s Rule 30(b)(6) deposition.”
C. Courts have also ordered limited Rule 30(b)(6) depositions of enforcement plaintiffs to proceed.
Some courts have ruled that enforcement authorities may only be deposed as to certain topics listed in a Rule 30(b)(6) deposition notice, while quashing or restricting other topics.
For example, in EEOC v. Honeybaked Ham, the court granted the majority of the EEOC’s protective order, but ordered the deposition to proceed to the extent there might be some information the defendant did not yet have. One of the EEOC’s main areas of objection concerned the relevance of several Rule 30(b)(6) topics that related to a later-filed administrative proceeding. Although the court recognized that the defendant was entitled to such information to the extent it related to double recovery or claim preclusion defenses, it held the defendant had to obtain such discovery through the administrative proceeding, not through the present case. The court also held that, if the other proceeding generated relevant admissions of a party opponent, those admissions would have to be produced to the extent proper discovery requests had already been made.
The court declined to order the EEOC to provide 30(b)(6) testimony about “all” facts and information underlying its allegations in the case, concluding such topics were not appropriate for inquiry under Rule 30(b)(6). The court observed that “[e]ven under the present-day liberal discovery rules, [a party] is not required to have counsel ‘marshal all of its factual proof and prepare a witness to be able to testify on a given defense or counterclaim.’” The court declined to grant the EEOC’s motion in its entirety, but “amend[ed] each of the topics only insofar as the documents in the case, and the testimony provided by the witnesses in this case, do not already address and provide sufficient information concerning the particular topic.” In this way, “[i]f the deponent is not aware of any additional information on a particular topic, then the Defendant will have achieved the goal of assuring that the EEOC has produced all the evidence it has on that topic.”
III. ARGUMENTS THE GOVERNMENT SHOULD MAKE TO AVOID SUBMITTING TO A RULE 30(b)(6) DEPOSITION.
A. Begin by emphasizing the distinctions between private lawsuits and civil enforcement proceedings.
It is often helpful to orient your judge early in the case to the fact that she is not dealing with a typical lawsuit between private parties, especially if your judge is new or has little experience with civil law enforcement cases. Educating the court early in the case helps send the message that your proceeding is special and helps establish the groundwork for the many unique law enforcement-only arguments that will come into play later in the case.
For example, in private litigation, both sides typically represent clients that are knowledgeable about the facts of the case. Enforcement plaintiffs, on the other hand, often do not represent clients, nor do they have first-hand knowledge of their facts. The entire case must be developed and prosecuted under trial counsel’s direction and investigation. In private litigation, the parties typically are not strangers, but previously interacted in some way, through a contract, tort, statute or the common law. In enforcement litigation, the parties are usually strangers with no previous history or relationship.
Courts frequently recognize that, by their nature, civil law enforcement proceedings must be treated differently in the context of Rule 30(b)(6) depositions, because the proceeding seeks to establish that a public statute has been violated. Thus, courts acknowledge that an enforcement plaintiff’s investigation is typically conducted by its legal staff; under the direction of counsel, and the plaintiff has no knowledge of the facts independent of its attorneys’ investigations. Enforcement attorneys should especially emphasize these distinctions in cases where they or their staff conducted the underlying investigation that led to the enforcement complaint.
B. When defendants argue they are merely seeking “facts,” show the court how the deposition notice invades work product or other privileges.
Enforcement defendants frequently try to avoid the argument that their Rule 30(b)(6) notice of the government seeks the actual or practical equivalent of the deposition of the government’s trial counsel by arguing that their notice seeks only “facts” and does not demand that an attorney appear for the deposition. But when a defendant’s 30(b)(6) notice asks the government to explain what facts it considers important to the case, or how it intends to prove its case at trial with respect to the allegations in the complaint, such topics can constitute an impermissible invasion of attorney work product. Courts have consistently held that merely cloaking a request for a Rule 30(b)(6) deposition under the guise of a request for “facts” does not change the true nature of the request.
For example, in Securities and Exchange Commission v. Morelli, the defendant’s Rule 30(b)(6) notice purported to designate factual topics such as the time and place of defendant’s alleged receipt of inside information. But, because the defendant had already received ample fact discovery, the court was “drawn inexorably to the conclusion that [defendant] intended to ascertain how the SEC intend[ed] to marshal the facts, documents and testimony in its possession, and to discover the inferences that [the SEC] believes properly can be drawn from the evidence.”
Sometimes defendants will carefully craft their 30(b)(6) topics by including terms like “factual basis” or “nature and details,” to avoid a facial intrusion into work product. Courts have recognized that defense attempts to recast their notice of deposition in this way does not change that defendants really seek protected work product. For example, in Buntrock, the court rejected the defendant’s attempt to avoid a work product objection by claiming his notice was only seeking facts:
[T]he “facts”— if that is truly what [the defendant] is after— are available elsewhere and through other means. . . . [Defendant] seeks knowledge a step beyond “factual knowledge alone;” he seeks, as his own submissions reveal, what the SEC’s attorneys brought to bear having discovered those facts.
Similarly, in Securities and Exchange Commission v. Jasper, the court noted it was “unpersuaded by [the defendant’s] assertions that he seeks only the factual content of [the third-party’s] statements.” The court recognized that “it appears that what defendant really seeks is a probing examination as to the [third party’s] (reconstructed) statements through the recollections of the SEC counsel who are prosecuting this matter—recollections which this court finds are not easily segregated from those attorneys’ thoughts, mental impressions, opinions or conclusions about this case.” The court noted defendant acknowledged he was seeking to discover “[t]he SEC’s state of knowledge at the time it filed the Maxim and Jasper complaints,” concluding, “[s]uffice to say that for discovery purposes and on the record presented, this court is unpersuaded that the stated need for the SEC’s deposition outweighs the SEC’s interest in protecting its attorneys’ work product.”
In Equal Employment Opportunity Commission v. HBE Corp., the court granted a protective order to the EEOC where the only person with knowledge of the facts was the EEOC’s trial counsel. The court rejected the defendant’s claim that it was merely seeking to “explore the factual bases of the claims made by Plaintiff,” and noted that “[a]s defendant well knows, it is the selection and compilation of the relevant facts that is at the heart of the work product doctrine.”
In McCormick & Schmick’s, the defendants sought a Rule 30(b)(6) deposition of the EEOC for “factual information and documents that support or rebut the EEOC’s allegations set forth in the Complaint,” as well as factual information and documents that supported or rebutted various specific allegations in the EEOC’s Complaint. In response to the EEOC’s objection that the deposition notice would require the testimony of counsel, the defendants made the argument that they were
simply seeking to discover factual information that directly relates to the claims and defenses in this case from the EEOC and that if the EEOC “has created a case that depends solely on the ‘facts’ known by counsel, that is a product of its own making, and one that should not prejudice [Defendants’] ability to obtain discovery.”
Relying on SBM Inv. Certificates, Inc., the court granted a protective order to the EEOC because “the subjects outlined in the 30(b)(6) deposition notice on their face seek attorney work product and would require the deposition of EEOC counsel or a proxy prepared by counsel.”
In Securities and Exchange Commission v. Monterosso, the court recognized that “any question on the ‘factual basis’ for an allegation [by the SEC] implicates attorney work product.”
The problem with this line of inquiry is that the SEC has stated that it has already produced all the documents it has in support of its action, and the SEC has no independent knowledge of these documents. Thus, the only remaining knowledge as to the ‘factual basis’ of the SEC’s claims is the importance the SEC gives to each document. How the SEC intends to marshal facts, documents and testimony in its possession is protected from disclosure, pure and simple.
Using the guidance provided by these cases, trial counsel should be prepared to explain to the court exactly why the defendant’s argument that it is only seeking “facts” is improper and that a protective order is warranted.
C. Reject defense suggestions that the Rule 30(b)(6) deposition proceed on a question-by-question, objection-by-objection basis.
Some courts have ruled that the government should produce a Rule 30(b)(6) witness to testify on the objectionable topics, and the government’s counsel could then interpose objections on a question-by-question basis, instructing the witness not to answer where appropriate. Other courts have rejected this suggestion, recognizing such situations called for a complete protective order because a party was effectively seeking to depose another party’s attorney. The practical effect of the question-by-question approach is the impermissible intrusion into work product and a host of other privileges and protections. One court observed, “[t]his approach risks the disclosure of privileged information, it would increase the burden on the [government] to prepare a witness, and it would increase the burden on this Court which would likely have to make many otherwise unnecessary decisions about issues of work product privilege.” Another court rejected the idea outright:
It is appropriate to make this ruling now rather than allowing the deposition to proceed with EEOC reserving the right to object to questions on the basis of privilege. There is little doubt the EEOC would be lodging numerous such objections which would require eventual resolution either during the deposition or subsequent thereto. This would be an inefficient use of the parties’ time and the court’s time.
This manner of inquiry has repeatedly been recognized as burdensome for the court. For example, in Rosenfeld, the court recognized that a Rule 30(b)(6) deposition of the SEC “would undoubtedly place an undue burden on the SEC and the court, which would have to make a multitude of otherwise unnecessary decisions about issues of attorney work product and law enforcement privilege . . . .” Similarly, in McCormick & Schmick’s, the court held that “the attendant objections as to individual questions during the deposition on attorney-client privilege and work product grounds would likely involve recourse to this Court and a significant burden on this Court’s time that would be lessened by other means of discovery.”
In some cases, where defendants have attempted to depose the enforcing authority under Rule 30(b)(6), courts have held that the defendants can conduct the required discovery by reviewing documents and serving interrogatories, which provide information without intruding on the work product of the government’s attorneys. If the government has already produced all relevant evidence to the defense, courts have generally been more willing to conclude that the Rule 30(b)(6) deposition is unnecessary.
When defendants claim that they remain unable to understand some aspect of the government’s allegations, even after reviewing all the discovery available to them, the appropriate vehicle to seek information from the government would be a limited number of narrow, carefully drafted contention interrogatories. Like all litigants, defendants have the opportunity to flesh out contentions and prepare for trial, and courts have been clear that contention interrogatories allow for fair discovery without intruding upon the work product of an enforcement authority’s attorneys. Even if a defendant could show a sufficient reason for needing additional information, that does not mean that the floodgates should be opened for overuse of inappropriate contention interrogatories.
D. In complex cases, argue it is unduly burdensome to require the Rule 30(b)(6) designee to memorize thousands of facts.
Courts have been sympathetic to the fact that a Rule 30(b)(6) deposition of an enforcement authority can be extremely burdensome, especially in complex cases. For example, in SEC v. Nacchio, the court recognized that the SEC’s representative would have to spend weeks, if not months learning the case, which would be “inefficient in the extreme” and that even agency counsel might not have all the facts “immediately at her fingertips.” When appropriate, trial counsel should bring this fact to the court’s attention, as unduly burdensome discovery need not be provided as requested.
E. Argue the defendant has failed to show that no other means exist by which to obtain the requested information and, when appropriate, demonstrate that the government has provided or will provide defendants with responsive information through other means of discovery.
The government is not obligated to provide multiple cumulative examples of the same facts. Courts have held that there is no duty to provide additional information through a Rule 30(b)(6) deposition of the enforcement agency if the pertinent information was previously produced to the defendant through discovery responses or other disclosures. Notably, to the extent a defendant is already in possession of all the discoverable material and facts because they were previously produced by the government, “defendants are not entitled to explore opposing counsel’s thought processes as to which facts support these contentions (and which do not), or what inferences can be drawn from the evidence that has been assembled so far.”
IV. STRATEGIES FOR HEADING OFF CERTAIN RULE 30(b)(6) TOPICS.
A. Seeking information about allegations in the complaint or the government’s position about affirmative defenses is usually not appropriate under Rule 30(b)(6).
Many courts have ruled that Rule 30(b)(6) depositions are not the proper vehicle for discovering facts about the allegations in a civil enforcement complaint, especially in cases where the government previously provided the defendant with all underlying facts. Unsurprisingly, other courts have ruled to the contrary. With respect to the former category of cases, many of those courts have commented that contention interrogatories, not Rule 30(b)(6) depositions, are the more appropriate vehicle for discovering facts concerning the allegations in an enforcement complaint.
For example, in American International Group, Inc., the defendant sought to discover information related to the EEOC’s investigation including “(1) who was interviewed; (2) what the [Rule 30(b)(6)] deponent did to refresh his recollection of the facts in the case; and (3) what facts [the] EEOC considered concerning the defendants’ defenses.” While the court held the first two categories of inquiry were permissible, the “questions seeking to discover what facts were considered with respect to the defendants’ defenses face the same problem as questions about the allegations in the complaint.” Because the defendants already had the EEOC’s investigative file, “[d]eposition inquiries concerning the EEOC’s view of the relevant facts can only be designed to explore the EEOC’s determinations of how it intends to order its proof.”
B. Prevent defendants from seeking information the government does not have or defendants already possess.
Defendants sometimes attempt to depose the government about information only they possess or have failed to produce to the government in response to discovery. While such a practice is disingenuous, defendants may persist in seeking such information from an enforcement authority through a motion to compel. Courts have recognized it would be impossible for the government to prepare a designee to testify under such circumstances. As one court held,
The Court is not inclined to order the State to produce a Rule 30(b)(6) representative at this point because the areas of inquiry identified in Defendants’ Rule 30(b)(6) notice cover areas for which Defendants have not produced relevant documents that form the bases of the State’s claim. The State could not prepare a witness to address those areas where discovery has not been forthcoming.
Courts have also been persuaded to grant protective orders prohibiting Rule 30(b)(6) depositions of the enforcement authority in cases where the government has been able to demonstrate that the defendant is already in possession of the relevant facts sought by the deposition.
C. Avoid providing unnecessary duplicative discovery.
Like any discovery request, a deposition under Rule 30(b)(6) “is subject to limitations under Rule 26, which requires that discovery not be unduly burdensome or duplicative.” Thus, when the first six topics designated in a Rule 30(b)(6) deposition notice of the State overlapped with a defendant’s previously served interrogatory, a court concluded “it would be premature to require the State at this time to designate a Rule 30(b)(6) representative when Defendants’ discovery issues may very well be resolved through other means of discovery to which they have resorted.”Similarly, in Equal Opportunity Commission v. Evans Fruit Co., in addition to granting a protective order to the EEOC preventing a deposition from going forward on the basis of the deliberative process privilege, the court further held that defendant’s Rule 30(b)(6) inquiries into the EEOC’s investigation “seek information which would be cumulative or duplicative of information contained in the EEOC files already provided to Defendant.” 
D. Avoid revealing the government’s investigative thoughts and strategies.
Courts have also held that 30(b)(6) topics that inquire into the government’s investigation “would require the investigating attorneys’ thought processes and opinions.” The Rosenfeld court recognized that inquiry into the government’s investigation “would inevitably tend to disclose the investigating attorneys’ preliminary positions and legal theories concerning the suspected conduct of defendant . . . and those factual areas which were of particular interest to the SEC investigators.”
Another court concluded that a defendant’s attempt to inquire into an attorney general’s “relationship” with government regulators and public and private consumer complaint organizations “purporting to investigate any Defendant, including but not limited to the nature and content of any communication, collaboration, or correspondence regarding Defendants,” was irrelevant, concluding that “these areas [do not] warrant a Rule 30(b)(6) designee at this time as these deal with the investigative working of the State and do not bear on the substance of the allegations in this case.”
In Evans Fruit Co., the court held that “[a]llowing the Defendant unfettered discretion to ask questions about the investigation and the conciliation process would open the door to inquiry into EEOC’s evaluation of the strengths and weaknesses of its case and into its decision-making process.”
E. Discovery of opinion work product from a related, but closed, enforcement case has been prohibited.
In the context of a Rule 30(b)(6) deposition of the SEC, one court has held that “[o]pinion work product remains privileged even when the litigation it was prepared for has ended, especially as here where the same parties are again involved in litigation over related matters.”
F. The government should not have to elaborate on its objections and responses to written discovery in a Rule 30(b)(6) deposition.
Rule 30(b)(6) inquiry into “the State’s objections and responses to all document requests and interrogatories and what the State did to comply with answering or responding to Defendants’ discovery requests” was viewed as an “attempt to delve into the inner workings of the State’s counsel in responding to the requests. That, on its face, appears to be intruding into an area clearly protected by the work product doctrine and is not relevant to any issue in this case.”
G. Rule 30(b)(6) depositions are not proper vehicles for the discovery of third party information.
Defendants usually recognize the State has investigated and marshaled the facts from third parties as part of its enforcement investigation. Rather than invest effort into written discovery or third-party depositions, some defendants attempt to elicit the State’s work product developed from the State’s interviews of consumers and others through 30(b)(6) depositions. Topics that seek information regarding the knowledge of third parties, such as complaint information, persons and documents identified in initial disclosures, or information dealing with the substance of a third party’s knowledge, are improper for Rule 30(b)(6) purposes. If a defendant requires such information, it should interview or depose such third parties, or, at a minimum, review the factual summaries that may have been provided to the defendant through initial disclosures or discovery responses. Defense attempts to obtain such third party information should also be subject to defeat because it would be more easily available to the defendant through written discovery or by subpoena to the complaint agency at issue.
V. TRIAL COUNSEL SHOULD ENSURE THAT THE RULE 30(b)(6) OPPOSITION COVERS ALL PRIVILEGES WHICH MAY BE AT RISK.
As already seen, the most common protection at risk discussed in cases examining Rule 30(b)(6) depositions of enforcement authorities is work product. A number of cases touch on other privileges as well. Trial counsel should ensure that all applicable privileges are considered and covered in argument, along with cases which support counsel’s position and refute defense arguments. Below are cases discussing some of the other privileges which have been raised by the government when intrusive Rule 30(b)(6) depositions have been attempted by defendants.
A. Common Interest Privilege
In Rosenfeld, the court agreed with the SEC that the defendants’ Rule 30(b)(6) topic, which sought information about investigative information shared between the SEC and the Ontario Securities Commission, could compromise the common prosecutorial interest the two agencies shared because certain topics sought information obtained from the latter agency.
B. Deliberative Process Privilege
A number of civil enforcement cases have granted protective relief to government enforcement authorities faced with the prospect of waiving the deliberative process privilege in Rule 30(b)(6) depositions. For example, in Evans Fruit Co., the court quashed a Rule 30(b)(6) deposition of the EEOC based, in part, on the EEOC’s assertion of the deliberative process privilege. The court engaged in a lengthy analysis of EEOC enforcement cases that involved the assertions of the deliberative process privilege under Rule 30(b)(6), and concluded that other than defense questions “related to seeking clarifying factual information,” inquiries seeking the facts behind the government’s charging determination ran afoul of the deliberative process privilege.
C. The Law Enforcement Privilege
In jurisdictions that recognize the law enforcement privilege, counsel should be prepared to assert it and demonstrate why it applies in the case. In Rosenfeld, for example, the court held that Rule 30(b)(6) testimony about the SEC’s trial counsel’s communications with certain third-party witnesses could implicate the law enforcement privilege “since it might reveal the SEC’s techniques and procedures and how it develops relationships with informants, and strategies for eliciting information from individuals who provide it with information.”
D. State Secrets Privilege
“The State Secrets Privilege is a common-law evidentiary privilege that permits the Government to bar the disclosure of information where there is a reasonable possibility that disclosure will expose sensitive national security interests.” Once successfully invoked, courts must consider how the invocation of the privilege and the related unavailability of evidence affects the proceeding and whether dismissal of all or part of the case is warranted.  As a practical matter, this privilege will rarely be invoked on the state level because it applies to information that is deemed classified or of concern to national or military security.
VI. WHAT TO DO WHEN THE ENFORCEMENT PLAINTIFF IS REQUIRED TO SUBMIT TO A RULE 30(b)(6) DEPOSITION
Despite plaintiff’s counsel’s best efforts, there will be times when a court will order an enforcement plaintiff to submit to a Rule 30(b)(6) deposition, even where trial counsel also investigated the underlying case. As a practical matter, it seems that defendants remain unsatisfied with the results of such depositions, given the inevitable (and sometimes numerous) work product and privilege objections that must be made. These types of disputes even arise when the enforcement authority voluntarily submits to a Rule 30(b)(6) deposition.
Federal Trade Commission v. CyberSpy Software, LLC
Federal Trade Commission v. CyberSpy Software, LLC, is an example of a case where the defendants’ apparent dissatisfaction with the FTC’s designee’s testimony led to a contempt motion against the FTC. In CyberSpy, the magistrate judge ordered the Rule 30(b)(6) deposition of the FTC to proceed as noticed, despite the FTC’s work product concerns. The magistrate judge seemed focused only on the fact that the FTC was a government agency and government agencies are subject to deposition under Rule 30(b)(6). The FTC produced the assistant director of its Division of Advertising Practices as its Rule 30(b)(6) designee, who declined to answer a number of questions on grounds of privilege or lack of information. The defendants were dissatisfied and filed a contempt motion against the FTC, complete with a string of sanctions requests.
After examining the defendants’ topics of inquiry in light of the FTC’s designee’s answers, the trial court denied the defendants’ contempt motion. Notably, the court provided some guidance regarding the lines of inquiry that ran afoul of work product protection. For example, one area of inquiry focused on whether the FTC was “satisfied” with the defendants’ post-preliminary injunction website changes. The FTC’s designee refused to answer these questions on the grounds of work product. The court held the defendants’ questions were impermissible because they “clearly sought opinion work product—mental impressions as to the changes made to the CyberSpy website and opinions as to the legal effect of those changes.”
The defendants further sought information about statutes other than the FTC Act that the FTC intended to argue were violated. The FTC’s “unfairness” claim was based, in part, on allegations that the defendants’ acts and practices violated other state and federal statutes. The FTC’s designee identified two federal statutes, but declined to “provide a factual basis regarding the same” on work product grounds. The court agreed, holding that “‘[a]s for the ‘factual basis justifying same,’ a request for such justification is explicitly a request for the ‘mental impressions, conclusions, opinions or legal theories of a party's attorney’ and was properly objected to.”
The defendants also sought information from the FTC’s designee relating to third parties, such as defendants’ purchasers and victims. As to the former, the FTC’s designee referred the defendants to other discovery, but defendants claimed they were still “completely in the dark about the facts underlying the allegations made against them by the FTC.” Defendants failed to offer any analysis as to why the designee’s responses were improper, leading the court to observe that “the Defendants are almost certainly in possession of the [purchasers’] identities they sought to discover.” As to the latter category of third parties, the FTC’s designee identified persons harmed by defendants’ conduct as persons who downloaded defendants’ spyware without notice or authorization, but was unable to elaborate on individuals identified in the FTC’s interrogatory answers, or facts beyond those in a victim’s affidavit. The court accepted the FTC’s representation that all responsive information had been produced to the defendants in discovery, and held that “the [FTC] is not required to produce a witness who has memorized all of the facts that have been uncovered to date.”
Equal Employment Opportunity Commission v. American International Group, Inc.
In Equal Employment Opportunity Commission v. American International Group, Inc., the defendants moved to compel and for sanctions against the EEOC, despite the fact the EEOC produced its entire investigative file to the defendants and voluntarily submitted to a Rule 30(b)(6) deposition. The EEOC’s designee was the case investigator’s supervisor. During the deposition, the EEOC instructed its designee not to answer certain questions on grounds of work product and deliberative process privilege. At times, the designee was simply unable to answer questions regarding details in the investigative file. Defendants complained that the EEOC’s designee was unprepared, but the court disagreed:
Rule 30(b)(6) is not designed to be a memory contest. It is not reasonable to expect any individual to remember every fact in an EEOC investigative file. Subject to its asserted privileges, the EEOC has provided the defendants with the investigative file. Under these circumstances, the defendants do not have a legitimate need to inquire into facts contained in the file.
Most of the remaining contested matters were resolved in the EEOC’s favor. This case is an example where the government placed itself in a good position by making an early production of documents to the defendants, and voluntarily submitting to a Rule 30(b)(6) deposition—facts which seemed to work in its favor.
A motivated defendant can wreak havoc on even the most solid of enforcement cases through an improper Rule 30(b)(6) deposition of the plaintiff. Preparation, good planning, and a solid understanding of the law are key to staving off defense attempts at invading privilege and work product through improper Rule 30(b)(6) depositions of the government.
 This article represents the opinions of the author and not necessarily those of the Office of the Tennessee Attorney General and Reporter.
 Because of the variations in state court rules of civil procedure, this article will refer to the Federal Rules of Civil Procedure and related federal cases.
See, e.g., EEOC v. Texas Roadhouse, Inc., No. 11-11732-DJC, 2014 WL 4471521, at *4-6 (D. Mass. Sept. 9, 2014) (granting protective order to EEOC because Rule 30(b)(6) topics sought information already produced in discovery, or irrelevant, intrusive, and available through less burdensome means); U.S. EEOC v. Source One Staffing, Inc., No. 11 C 6754, 2013 WL 25033, at *3-8 (N.D. Ill. Jan. 2, 2013) (granting protective order to EEOC because defendant’s Rule 30(b)(6) notice improperly sought protected, privileged, duplicative and confidential information.); United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31TBS, 2012 WL 3537070, *4 (M.D. Fla. Aug. 14, 2012) (“If the United States was required to produce a witness in response to these topics, it would necessarily have to provide its legal theories and positions on important issues.”); U.S. Att’y Gen. v. Pine, No. 10–80971–CIV, 2011 U.S. Dist. LEXIS 158610, at *1 (S.D. Fla. Aug. 29, 2011) (“Because Defendant has not shown a heightened need to conduct its 30(b)(6) deposition, the Court finds that the government’s objections have merit.”); EEOC v. McCormick & Schmick's Seafood Rests., Inc., No. Civil Action WMN-08-CV-984, 2010 WL 2572809, at *10 (D. Md. June 22, 2010) (prohibiting Rule 30(b)(6) deposition of EEOC, noting “[n]umerous other federal courts have similarly concluded that 30(b)(6) deposition notices directed to a law enforcement agency … were, in effect, notices to depose opposing counsel of record and would not be permitted[.]”) (citing a string of relevant cases); SEC v. Nacchio, 614 F. Supp. 2d 1164, 1177 (D. Colo. 2009); SEC v. Monterosso, No. 07–61693–CIV, 2009 WL 8708868, at *1-2 (S.D. Fla. June 2, 2009); SEC v. Jasper, No. C07–06122 JW (HRL), 2009 WL 1457755, at *2–4 (N.D. Cal. May 26, 2009); SEC v. SBM Inv. Certificates, Inc., No. 06–0866, 2007 WL 609888, at *26 (D. Md. Feb. 23, 2007) (same in SEC civil enforcement action); FTC v. U.S. Grant Res., LLC, 2004 WL 1444951, at *9–11 (E.D. La. June 25, 2004) (“[The Court finds that the 30(b)(6) notice is an inappropriate attempt to depose opposing counsel and to delve into the theories, opinions and mental impressions of FTC attorneys.”); SEC v. Buntrock, No. 02 C 2180, 2004 WL 1470278, at *2 (N.D. Ill. June 29, 2004); SEC v. Buntrock, 217 F.R.D. 441 (N.D. Ill. 2003); In re Bilzerian, 258 B.R. 846, 849 (Bankr. M.D. Fla. 2001) (“Based on the foregoing, it is the conclusion of this court that the taking of the deposition of the SEC—which would necessarily require the taking of the deposition of their lead counsel or someone with knowledge gained exclusively from the SEC’s counsel—is not an appropriate use of Fed. R. Civ. P. 30(b)(6).”); SEC v. Rosenfeld, No. 97 CIV 1467 (RPP), 1997 WL 576021, at *2 (S.D.N.Y. Sept. 16, 1997); EEOC v. HBE Corp., 157 F.R.D. 465, 466–67 (E.D. Mo. 1994); SEC v. Morelli, 143 F.R.D. 42, 47 (S.D.N.Y.1992); See also Keith W. Miller, Depositions, 6 Bus. & Com. Litig. Federal Courts § 69:61 (3rd ed. 2016) (“[B]ecause SEC investigations are conducted by legal staff, an attempt to depose an SEC official with knowledge of the investigation is tantamount to an attempt to depose the attorney for the other side.”)
U.S. Grant Res., 2004 WL 1444951, at *9. See also SBM Inv., 2007 WL 609888, at *23–24; Morelli, 143 F.R.D. at 47 (Rule 30(b)(6) deposition of the SEC “constitutes an impermissible attempt by defendant to inquire into the mental processes and strategies of the SEC”).
See, e.g., SEC v. McCabe, No. 2:13-v-0061-TS-PMW, 2015 WL 2452937 (D. Utah May 22, 2015); SEC v. Merkin, 283 F.R.D. 689 (S.D. Fla. 2012), objections overruled, 283 F.R.D. 699 (S.D. Fla. 2012); SEC v. Kramer, 778 F. Supp. 2d 1320 (M.D. Fla. 2011).
McCabe, 2015 WL 2452937 at *3; Merkin, 283 F.R.D. at 693-698; Kramer, 778 F.Supp.2d at 1327-28.
See, e.g., SBM Inv. Certificates, Inc., 2007 WL 609888, at *23–26; Buntrock, 2004 WL 1470278, at *2 [hereinafter Buntrock II] (observing that the SEC produced 200 boxes of documents in hard copy and database along with a 12-page list of witnesses, testimony from 49 witnesses and accompanying documents); Am. Int’l Grp., Inc., 1994 WL 376052, at *2-3 (EEOC’s prior production of complete investigative file to defendants confirmed that defendants’ Rule 30(b)(6) notice was an improper attempt to “discover how the EEOC ‘intends to marshall [sic] the facts, documents and [statements] in its possession, and to discover the inferences that [the EEOC] believes properly can be drawn from the evidence it has accumulated.’”) (citing Morelli, 143 F.R.D. at 47).
 Order, State of Tennessee v. Escapes! Inc., No. 2:13-cv-00343 (E.D. Tenn. Nov. 19, 2015), ECF No. 180 (granting protective order prohibiting Rule 30(b)(6) deposition of the State on grounds that the 30(b)(6) notice sought protected work product and information that was irrelevant, premature, or tied to discovery defendants failed to produce.); FTC v. CyberSpy Software, LLC, No. 6:08-cv-1872-Orl-31GJK, 2009 WL 2386137, at *4 (M.D. Fla. July 31, 2009) (“According to the FTC, the Defendants are in possession of all the discoverable material—such as interrogatory responses, affidavits, and deposition transcripts—containing the facts supporting these contentions. Assuming this to be true, the Defendants have received all the facts they are entitled to discover.”); EEOC v. Am. Int’l Grp., Inc., No. 93 CIV. 6390 (PKL) RLE, 1994 WL 376052, *3 (S.D.N.Y. July 18, 1994) (“To the extent defendants already have the objective calculations performed by the EEOC, they have no right to further inquiry.”)
 Fed. R. Civ. P. 30(b)(6) (emphasis added).
See, e.g., SEC v. Nacchio, No. Civil Action No. 05-cv-00480-MSK-CBS, 2009 WL 211511, *2 (D. Colo. Jan. 29, 2009) (discussing depositions of SEC employees designated to testify about deliberations concerning accounting principles, but denying motion to compel based on deliberative process privilege).
See, e.g., In re Bilzerian, 258 B.R. at 849 (“That is not to conclude that opposing counsel is absolutely immune from being deposed. There are recognized circumstances that may arise in which the court should order the taking of opposing counsel’s deposition.”) (citing Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986)).
 Fed. R. Civ. P. 30(a)(1), for example, provides that “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2) (emphasis added). Fed. R. Civ. P. 30(a)(2) sets forth the requirements for depositions with leave of court.
See, e.g., Shelton, 805 F.2d at 1327.
See, e.g., Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir.1979); Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762, 766 (D.C. Cir. 1965).
Jennings, 201 F.R.D. at 277. See alsoRosenfeld, 1997 WL 576021, at *3-4 (defendant’s failure to explain why he failed to utilize interrogatories to learn identity of persons having knowledge of facts and circumstances surrounding allegations in the complaint prevented him from deposing SEC under Rule 30(b)(6) for same information).
Morelli, 143 F.R.D. at 47 (quoting N.F.A. Corp., 117 F.R.D. at 85). See also Theriot, 185 F.3d at 491 (depositions of attorneys “should be employed only in limited circumstances”); W. Peninsular Title Co. v. Palm Beach Cnty., 132 F.R.D. 301, 302 (S.D. Fla. 1990) (“[D]epositions of attorneys inherently constitute an invitation to harass the attorney and parties, and to disrupt and delay the case.”); SEC v. World-Wide Coin Inv., Ltd., 92 F.R.D. 65, 66 (N.D. Ga. 1981) (not proper to depose SEC lawyers).
See, e.g., Hickman v. Taylor, 329 U.S. 495 (1947); Jennings v. Family Mgmt., 201 F.R.D. 272, 276–77 (D.D.C.2001); Shelton, 805 F.2d at 1327; Theriot v. Parish of Jefferson, 185 F.3d 477, 491 (5th Cir.1999); EEOC v. HBE Corp., 157 F.R.D. 465, 466 (E.D. Mo. 1994) (“Taking an opposing counsel’s deposition has long been discouraged.”) (citing Shelton, 805 F.2d at 1327).
U.S. Grant Res., LLC, 2004 WL 1444951, at *10.
 Id. (quoting N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85 (M.D.N.C. 1987)).
 805 F.2d 1323 (8th Cir. 1986).
Id. at 1327 (internal citations omitted).
See, e.g., Chester v. Allen, 122 F. App’x 184, 188 (6th Cir. 2005) (lower court erred in not applying Shelton test before compelling attorneys’ depositions); Avis Rent A Car Sys., LLC v. City of Dayton, No. 3:12-cv-399, 2013 WL 3778922, at *10 (S.D. Ohio July 18, 2013) (City’s motion to quash deposition of city attorney granted under Shelton analysis); HBE Corp., 157 F.R.D. at 466 (“The defendant has failed to establish that there are no other means to obtain the information, that the information is relevant, or that the information is crucial to the preparation of its case.”). Cf. Pine, 2011 U.S. Dist. LEXIS 158610, at *2–3.
 Fed. R. Civ. P. 30(b)(6).
HBE Corp., 157 F.R.D. at 466 (court accepted plaintiff’s undisputed contention “that the only person with knowledge of the information requested in the deposition notice is its trial attorney.”)
See, e.g., McCormick & Schmick’s, 2010 WL 2572809, *3 (“[The] SEC (like EEOC) is a law enforcement agency without independent knowledge of the transactions giving rise to the litigation and responsive information would only be known through work product efforts of its counsel[.]”) (citing Rosenfeld, 1997 WL 576021)); Monterosso, 2009 WL 8708868, at *1 (same); HBE Corp., 157 F.R.D. at 466 (same).
 No. 97 CIV. 1467 (RPP), 1997 WL 576021, at *2-4 (S.D. Fla. April 18, 2002).
 The 11 designated topics are set forth at 1997 WL 576021, at *1.
Id. at *2.
Id. (citing Morelli, 143 F.R.D. 42).
Rosenfeld, 1997 WL 576021, at *1.
Id. at *2-3.
Id. at *3-4.
Id. at *4.
 217 F.R.D. 441 (N.D. Ill. 2003).
Id. at 443.
Id. The 12 categories of information were summarized as follows:
The alleged false or misleading statements in WMI’s quarterly reports or public statements for the years 1992 through the first three quarters of 1997, all alleged fraudulent accounting practices for that time span, each alleged violation of GAAP and why and how the GAAP was violated for that time span, the internal review of WMI’s accounting practices taken up in the third quarter of 1997 and the 1998 restatement, communications between the SEC and accounting firms regarding the internal review of WMI’s accounting practices undertaken in the third quarter of 1997 and its restatement, the roles of certain accounting firms in the SEC’s investigation, the roles of certain SEC employees in the investigation, the extent of SEC reliance on work product of certain SEC employees while at the SEC and while in the private sector, and the role of the accounting firm of Arthur Andersen in WMI’s restatement, and all alleged ill-gotten gains retained by the defendants during the pertinent time span. Id.
Id. at 443-44.
Id. at 444.
Id. at 444 (citing Rosenfeld, 1997 WL 576021; Morelli, 143 F.R.D. 42; HBE Corp., 157 F.R.D. 465).
 1997 WL 576021.
Buntrock, 217 F.R.D. at 444. The court also rejected the defendants’ attempt to distinguish other cases prohibiting SEC depositions including Rosenfeld, noting that the one Rule 30(b)(6) case cited by the defendant “has little bearing on our concerns here.” Id.
Id. at 445-46 (citing Rosenfeld, 1997 WL 576021, *3-4; Morelli, 143 F.R.D. at 47).
Buntrock, 217 F.R.D. at 445.