Can a corporate designee be compelled to answer questions outside the scope of the deposition notice?

There are no published cases in Kentucky addressing whether a corporate representative must testify on subjects outside of those identified in a Rule 30.02(6) notice of deposition. Under the federal corollary to the Kentucky Rule, FRCP 30(b)(6), federal courts are split on the issue.

The majority view is that the Rule 30(b)(6) deposition is not limited to matters listed in the deposition notice because such a limitation would frustrate the ability to obtain discovery of relevant information as permitted by Rule 26.  See, e.g., California Found. for Indep. Living Centers v. Cty. of Sacramento, 142 F. Supp. 3d 1035, 1046 (E.D. Cal. 2015).  In testifying to matters outside the scope of the deposition notice, however, the witness should not be deemed to be speaking on behalf of the corporation. Id.

The minority approach is that the party conducting the examination must confine the examination to matters stated with reasonable particularity in the deposition notice. See, e.g., Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727, 728 (D. Mass. 1985).  If counsel who is presenting the witness at the deposition instructs the witness not to answer, counsel should follow up with a motion for a protective order. Id.

NOTE: The foregoing post includes commentary reprinted from the forthcoming 2018 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2018 Thomson Reuters. For more information about this publication click here.

David Kramer is a Partner and Chair of the Litigation Section in the law firm of Dressman Benzinger LaVelle psc, with offices in Cincinnati, Ohio, and Crestview Hills, Frankfort, and Louisville, Kentucky.