Full preparation of the corporate designee is required before a deposition under Rule 30(b)(6) of the Federal Rules of Civil Procedure because the examination will not be limited to the topics listed in the deposition notice. A recent decision by the US District Court for the Southern District of California granting Arent Fox’s motion to compel and request for sanctions and denying the adversary’s cross-motion for a protective order and request for sanctions illustrates this crucial principle.¹

Deposition Notice Does Not Limit Examination

In FCC v. Mizuho, a deposition of plaintiff corporation was noticed by one defendant under Rule 30(b)(6). Counsel defending the deponent refused to allow any cross-examination of the deponent by a co-defendant, represented by Arent Fox. The deponent’s attorney refused to allow the cross-examination on the ground that the questioning may “go beyond the scope of th[e] deposition notice.”² The deponent’s attorney cited Paparelli v. Prudential Ins. Co., a decision holding that party conducting cross-examination “must confine the examination to the matters stated ‘with reasonable particularity’ which are contained in the Notice of Deposition.”³ Based on this authority, the deponent’s counsel terminated the deposition.

The court in FCC v. Mizuho, however, rejected the Paparelli rule. Joining the clear majority of courts considering the question, the court in FCC v. Mizuho held that parties may cross-examine a corporate designee on all relevant matters – including matters not identified in the notice of deposition.⁴ Thus, this recent decision teaches that preparation for a deposition must cover all relevant subjects and must not be confined to a review of the topics listed in a deposition notice.

Other Lessons

The decision in FCC v. Mizuho also rejected several other arguments raised by the deponent’s attorney. The court held that other parties are not required to serve their own deposition notice before conducting cross-examination at a deposition.⁵ The court also stated that deponent’s counsel’s actions did not comply with proper procedure, where counsel terminated the deposition but did not immediately file a motion for a protective order.⁶ Finally, FCC v. Mizuho reveals the risks posed by unilateral termination of a deposition. The court awarded sanctions in favor of Arent Fox’s client, requiring the adversary to pay for Arent Fox’s travel costs, court reporting fees, and attorneys’ fees in bringing the motion to compel.⁷

In sum, comprehensive preparation is vital before the corporate designee appears for a deposition.

To read the full opinion by the US District Court for the Southern District of California, please click here.

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¹ FCC v. Mizuho Medy Co. Ltd., ___ F.R.D. ___, 2009 WL 1707937 (S.D. Cal. June 15, 2009).

² Id. at *2.

³ Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 730 (D.Mass. 1985).

⁴ FCC v. Mizuho Medy Co. Ltd., 2009 WL 1707937, at *3 (citing Detoy v. City and County of San Francisco, 196 F.R.D. 362, 367 (N.D.Cal.2000); King v. Pratt & Whitney, a Div. of United Technologies Corp., 161 F.R.D. 475 (S.D.Fla.1995)).

⁵ FCC v. Mizuho Medy Co. Ltd., 2009 WL 1707937, at *3 (citing Spray Products, Inc. v. Strouse, Inc., 31 F.R.D. 211, 212 (E.D.Penn.1962) (holding that another party may examine a deponent on issues not addressed in the direct examination without serving a prior notice of deposition).

⁶ FCC v. Mizuho Medy Co. Ltd., 2009 WL 1707937, at *4.

⁷ FCC v. Mizuho Medy Co. Ltd., 2009 WL 1707937, at *5.