eDiscovery Daily Blog

• August 23, 2017

I was talking to a client the other day about having to prepare their 30(b)(6) witness for a case, so I thought I’d revisit this topic…

When it comes to questions and potential issues that the receiving party may have about the discovery process of the producing party, one of the most common and direct methods for conducting “discovery about the discovery” is a deposition under Federal Rule 30(b)(6).

Rule 30(b)(6) enables a party to serve a deposition notice on the organization involved in the litigation rather than an individual. That notice identifies the topics to be covered in the deposition, and the organization being deposed must designate one or more people qualified to answer questions on the identified topics. While those designated to testify may not necessarily have day-to-day responsibility related to the identified topics, they must be educated enough in those issues to sufficiently address them during the testimony.

Topics to be covered in a 30(b)(6) deposition can vary widely, depending on the facts and circumstances of the case. However, there are some typical topics that the deponent(s) should be prepared to address.

Legal Hold: Perhaps the most common area of focus in a 30(b)(6) deposition is the legal hold process as the deposing party will want to find out if there is a possibility of spoliation of data, which could result in sanctions against your organization.  Issues to address include:

• General description of the legal hold process including all details of that policy and specific steps that were taken in this case to implement the hold.
• Timing of issuing the legal hold and to whom it was issued.
• Substance of the legal hold communication (if the communication is not considered privileged).
• Process for tracking and follow-up with the legal hold sources to ensure understanding and compliance with the hold process.
• Whether there are any auto-delete processes in place in the organization and, if so, what steps were taken to disable them and when were those steps taken?

Collection: Logically, the next eDiscovery step discussed in the 30(b)(6) deposition is the process for collecting preserved data:

• Method of collecting ESI for review, including whether the method preserved all relevant metadata intact.
• Chain of custody tracking from origination to destination.
• How the collection process was managed and conducted – i.e., was there custodian self-collection being performed and, if so, how tightly was that process managed by counsel.

Searching and Culling: Once the ESI is collected, the methods for conducting searches and culling the collection down for review must be discussed:

• Methods used to cull the ESI prior to review (including de-duping, date range exclusion and other mechanisms, as well as the search criteria for inclusion or exclusion in review and how the search criteria was developed (including potential use of subject matter experts to flush out search terms).
• Process for testing and refining the search terms used as well any testing or sampling conducted on ESI not retrieved.

Review: The 30(b)(6) witness(es) should be prepared to fully describe the review process, including:

• Methods to conduct review of the ESI including review application(s) used and workflow associated with the review process.
• Use of technology to assist with the review, such as clustering, predictive coding and near-duplicate identification.
• Methodology for determining privileged ESI (this methodology may be important if the producing party may request to “claw back” any inadvertently produced privileged ESI – this order makes it easier to do that).
• Personnel employed to conduct ESI review, including their qualifications, experience, and training.

Production: Information regarding the production process, including:

• Methodology for organizing and verifying the production, including confirmation of file counts and spot QC checks of produced files for content.
• The total volume of ESI collected, reviewed, and produced.

Depending on the specifics of the case and discovery efforts, there may be further topics to be addressed to ensure that the producing party has met its preservation and discovery obligations.

So, what do you think?  Have you had to prepare 30(b)(6) witnesses for deposition?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.