This article discusses how to prepare for and take a plaintiff’s deposition in wage and hour exemption misclassification cases. It also discusses how to defend the deposition of a Federal Rule of Civil Procedure 30(b)(6) witness in such cases.This article addresses the following steps and strategies:Step 1:Identify the Objectives of the Plaintiff’s Deposition;Step 2: Address Preliminary Issues before Taking the Plaintiff’s Deposition;Step 3: Gather Relevant Documents and Compile the Exhibits;Step 4: Interview Individuals Who Worked with the Plaintiff;Step 5: Take the Plaintiff’s Deposition;Step 6: Prepare the Employer’s 30(b)(6) Witness for Deposition; andStep 7: Object during the Deposition of the Employer’s 30(b)(6) Witness.In an exemption misclassification case, the plaintiff alleges that the employer misclassified him or her as being exempt from minimum wage or overtime laws pursuant to one or more state or federal wage and hour exemptions. For detailed information on wage and hour exemptions, see “Understanding the Executive Employee Exemption;” “Navigating the Administrative Employee Exemption;” “Applying the Professional Employee Exemption;” “Examining the Outside Sales Employee Exemption;” “Ap

In a recent decision, Judge Urbanski addressed when a party is allowed to make changes to deposition testimony by means of an errata sheet under Federal Rule of Civil Procedure 30(e). This contract dispute involved ant-infested wooden pallets manufactured by plaintiff and sold to defendant.

IntroductionUnless Congress intervenes, the first-ever substantive amendment to Federal Rule of Civil Procedure 30(b)(6) will take effect on 1 December 2020.[1] Governing oral depositions of party and nonparty organizations, Rule 30(b)(6)’s original purpose, when it was introduced in 1970, was to ensure a fair and even playing field so organizations would not receive special advantages during the discovery process.[2] To achieve this purpose, the Rule, in its current form, has two requirements: (1) from the party seeking to take the deposition, a notice containing a description with “reasonable particularity” of the matters for examination; and (2) from the organization being deposed, the designation of one or more persons to testify on the organization’s behalf as to those matters.

30(b)(6) witnesses must be prepared to discuss the extensive preparation they went through for a deposition. When those preparations are inadequate, varying sanctions can be imposed. Part 1 in the Protecting an Entity in Litigation series by Nicole Westbrook explores the process of setting parameters, selecting and preparing witnesses, and managing risk. In addition to preparing 30(b)(6) witnesses, this 5-part series covers matters concerning employee representation, insurance considerations, document retention, and funding litigation.The most daunting of measures attorneys face in protecting an entity in litigation is preparing witnesses for a Federal Rules of Civil Procedure 30(b)(6) deposition. Whether taking or defending, the first dance is the scope of the topic list – how many topics are appropriate, what time frame is appropriate, do the topics include privileged or work product information, etc. And the end cap on the preparation – from negotiation over topics through preparing witnesses and finally presenting a witness for deposition – is the heavy threat of sanctions for failing to do a complete job.Of course, through the middle the attorney is faced with gathering information, investigating facts, finding competent and available witnesses, preparing them on a number of occasions, ensuring compliance with the Rules and the entity’s other evidence and discovery responses, and properly defending the entity’s position through the deposition.What’s the point?The point of the 30(b)(6) deposition is to prevent sandbagging at trial by “halfhearted” inquiry into matters before depositions “but a thorough and vigorous one before the trial”Bd. of Trustees of Leland

However, a significant change is that in making the selection, counsel and client alike must recognize that close in-person contact between counsel and witness in preparation for the deposition may well not be possible to the extent customary pre-Covid.What has definitely changed in the last year is the conduct of the deposition itself. Several recent decisions have pointed out that Fed. R. Civ. P. 30(b)(4) has provided for remote depositions for years, and that it ill behooves counsel to appear bewildered when circumstances dictate the use of technology. Notwithstanding, cases arising earlier in 2020, within the first few weeks of the global shutdown, exhibited considerable distress on the part of defense and plaintiffs’ counsel at the prospect of undertaking remote depositions of witnesses who, at least in many cases, will be crucial.

Previously, I wrote about a proposed amendment to Federal Rule of Civil Procedure 30(b)(6) that would create a meet and confer requirement among counsel concerning the topics for examining a corporate representative in a deposition and how that requirement potentially could impact business organizations. Rule 30(b)(6) officially was amended effective December 1, 2020, with certain modifications to the language that initially was proposed by The Advisory Committee on the Federal Rules of Civil Procedure.My previous post described the language of the proposed amendment as including a requirement that: “[b]efore or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”

Earlier this month a Connecticut appellate court ruled that an expert witness’s preparation for his deposition was so slight that he lacked an adequate foundation on which to offer an expert opinion.Corporate Representative Depositions Under Rule 30(b)(6)A corporate representative deposition is a special type of deposition under the federal rules. The party noticing deposition names the corporate entity as the deponent; in response, the corporate entity must identify a knowledgeable corporate representative to appear and answer questions. Federal Rule of Civil Procedure 30(b)(6) provides:The named organization must 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. . . . The persons designated must testify about information known or reasonably available to the organization.

Image: Kaylee Walstad, EDRM, with AI – Hat tip to Ralph Losey’s Visual Muse.[Editor’s Note: This article was first published March 21, 2024and EDRM is grateful to Tom Paskowitz and Robert Keeling of our Trusted Partner, Sidley, for permission to republish. The opinions and positions are those of the author.]This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:an order from the U.S. District Court for the Eastern District of California granting a motion to compel deposition testimony pursuant to Federal Rule of Civil Procedure 30(b)(6) related to certain “discovery on discovery” topicsa decision from the U.S. District Court for the Eastern District of Texas denying a motion to claw back a government report that Defendant had inadvertently produced, finding that the report was confidential and subject to the protective order in the case but was not covered by the attorney work-product doctrinea ruling from the U.S. District Court for the Northern District of California declining to compel additional production of text message data for certain custodians based on “scant evidence” that the custodians used text messages to communicate about the issues in the casean opinion from the U.S. District Court for the Western District of Oklahoma denying a motion to compel production of documents in native form via Dropbox and to identify which documents were produced pursuant to which requests for production1. An order from the U.S. District Court for the Eastern District of California granting a motion to compel deposition tes

[co-author: Diego J. Troncoso Breton]HighlightsThe Consumer Financial Protection Bureau (CFPB) brought an action against 18 defendants under the Consumer Financial Protection Act (CFPA) and the Fair Debt Collection Practices Act (FDCPA) for engaging in or substantially assisting a fraudulent debt-collection scheme.In Consumer Financial Protection Bureau v. Brown, the U.S. District Court for the Northern District of Georgia imposed sanctions against the CFPB – dismissing claims against five defendants – due to a "dramatic abuse of the discovery process [by CFPB]" after being ordered to sit for depositions pursuant to Federal Rule of Civil Procedure 30(b)(6) and repeatedly violating the district court's order.The CFPB appealed and the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court's sanctions order finding that CFPB clearly violated orders from the district court.This decision serves as a reminder to counsel involved in CFPB investigations to challenge misconduct and clarifies that the CFPB does not possess any governmental agency immunity to avoid depositions and obstruct due process.The Consumer Financial Protection Bureau (CFPB) brought an action against 18 defendants under the Consumer Financial Protection Act (CFPA) and the Fair Debt Collection Practices Act (FDCPA) for engaging in or substantially assisting a fraudulent debt-collection scheme. In Consumer Financial Protection Bureau v. Brown, the U.S. District Court for the Northern District of Georgia imposed sanctions against the CFPB – dismissing claims against five defendants – due to a "dramatic abuse of the discovery process [by CFPB]" after being o

The Federal Rules expressly provide for depositions by in-person, oral examination. Fed. R. Civ. P. 30. Under Rule 45, which authorizes the service of a subpoena, non-parties can be compelled to appear at a deposition, but only if it takes place within 100 miles of that person’s residence, place of employment, or place where the person regularly conducts business in person.