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Unilateral Second 30(b)(6) Deposition Notice Shot Down

Michael Lowry

If the party noticing a 30(b)(6) deposition believes the deponent was unprepared or unable to fairly testify as to certain topics, can the noticing party resort to self-help by unilaterally noticing a second 30(b)(6)deposition on those topics?  I encountered that exact argument earlier this year in a federal case.



FRCP 30(a)(1) permits a party to take depositions “without leave of court except as provided in Rule 30(a)(2).” Rule 30(a)(2) requires leave “if the parties have not stipulated to the deposition and: (ii) the deponent has already been deposed in the case….”[1]  My client had already been deposed and had not stipulated to a second deposition. In this situation, Plaintiff was required to seek leave before noticing a second deposition.  Numerous federal courts have concluded a second deposition notice served without leave is subject to a protective order.  For example, in State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc. “Defendants have not sought leave of court to conduct an additional deposition of State Farm; thus the May 20, 2008 notice of deposition was improper.”[2]

Plaintiff responded that leave was not required because, by allegedly failing to provide an adequately prepared designee, my client failed to appear for its deposition and had not been deposed as Rule 30(a)(2)(A)(ii) contemplates.  This argument seemed premised upon Rule37(b)(1)(A)(i)’s language authorizing sanctions if “a party or a party’s officer, director, or managing agent—or a person designated under Rule 30(b)(6)or 31(a)(4)—fails, after being served with proper notice, to appear for that person’s deposition.”  However, the Ninth Circuit interprets this language literally. In Estrada v. Rowland the plaintiff “attended his deposition but refused to testify. This is not a ‘failure to appear’ for the purposes of Rule 37(d). Accordingly, the proper remedy is a court order to testify under Rule 37(a)….”[3]  Applied to my case, my client did appear for a deposition and answered questions, so Rule 37(b)(1)(A)(i) was inapplicable.

A court is certainly able to grant leave to take a second 30(b)(6)deposition if warranted.  However, one party’s subjective belief that a 30(b)(6) designee was not adequately prepared to testify does not then automatically permit a second deposition.  Such a rule would be prone to abuse as the noticing party could simply keep re-noticing further 30(b)(6) depositions on end.

What happened? A protective order was granted and barred the second deposition unless leave was obtained at a later date.



[1] Rule 30(a)(2)(A)(ii).

[2] 254 F.R.D. 227, 235 (E.D. Pa. 2008); see also Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d 189, 192 (1st Cir. 2001) (holding that it was not plainly wrong for the district court to quash a Rule 30(b)(6) subpoena when leave was not obtained); Sunny Isle Shopping Ctr., Inc. v. Xtra Super Food Ctrs., Inc., U.S. Dist. LEXIS 27069, 2002 WL 32349792 (D.V.I. July 24, 2002) (concluding Rule 30(a)(2)(A)(ii) “has been held applicable to corporate depositions noticed pursuant to Rule 30(b)(6).”); In re Sulfuric Acid Antitrust Litig., 2005 U.S. Dist. LEXIS 17420, 2005 WL 1994105 (N.D. Ill. Aug. 19, 2005) (following Ameristar Jet and citing 7 Moore’s Federal Practice § 30.05(1)(c)).

[3] 69 F.3d 405, 406 (9th Cir. 1995); see also Honey v. Dignity Health, No. 2:12-cv-00416, 2013 U.S. Dist. LEXIS 180209, 2013 WL 6709953 (D. Nev. Dec. 18, 2013)(declining to impose sanctions because the deposition did not actually go forward, so the deponent had not yet literally failed to appear).