404.06 Taking a Discovery Deposition
Fed. R. Civ. P. 30(b)(4) By Remote Means. The parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.
The manner of taking a discovery deposition in an inter partes proceeding before the Board is similar to taking a testimony deposition. [ Note 1.]
For information concerning the procedure for taking a testimony deposition (including the examination of witnesses, the form of a deposition, and the protection of confidential information or trade secret material forming part of a deposition transcript or exhibits thereto), see TBMP § 703.01 and TBMP § 703.02. For a discussion of significant differences between discovery depositions and testimony depositions, see TBMP § 404.09. For information concerning the procedure for taking a discovery deposition on written questions, see TBMP § 404.07.
On stipulation of the parties, or on motion granted by the Board, or by Board order, a deposition may be taken or attended by telephone or other remote means, such as video conferencing. [ Note 2.] A deposition taken by telephone or other remote means is regarded as taken in the federal judicial district and at the place where the witness is to answer the questions propounded to him or her. A discovery deposition taken by remote means (such as by video conference) must be transcribed if submitted as evidence at trial. See TBMP § 703.01(i).
NOTES:
1. Hewlett-Packard Co. v. Healthcare Personnel Inc., 21 USPQ2d 1552, 1553 (TTAB 1991).
2. See Fed. R. Civ. P. 30(b)(4). See, e.g., Andrew R. Flanders v. DiMarzio, Inc., 2020 USPQ2d 10671, at *6 (TTAB 2020) (in view of the COVID-19 pandemic, Board ordered parties to conduct a teleconference to discuss their options for taking deposition of respondent’s designated Rule 30(b)(6) witness by video teleconference, telephone or other similar acceptable means); Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1654 (TTAB 2007) (to resolve conflict in scheduling a deposition where travel is involved, parties may stipulate or the Board may order upon motion that deposition be taken by telephone or other remote means); Hewlett-Packard Co. v. Healthcare Personnel Inc., 21 USPQ2d 1552, 1553 (TTAB 1991) (leave to take telephonic depositions should be liberally granted in appropriate cases as current federal practice favors use of technological benefits).
404.06(a) Fed. R. Civ. P. 30(b)(1) Depositions by Oral Examination of a Natural Person
Fed. R. Civ. P. 30(b)(1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.
Fed. R. Civ. P. 30(b)(1) provides for the taking of a discovery deposition of a natural person. An individual witness deposition under Fed. R. Civ. P. 30(b)(1) seeks information regarding an individual’s personal knowledge of facts. If the party is a corporation, organization, partnership association or other juristic person, Fed. R. Civ. P. 30(b)(1) allows an adverse party to notice the deposition of a particular officer, director, or managing agent of a party organization. [ Note 1.] Taking a deposition of a party’s officer, director, or managing agent in his or her individual capacity under Fed. R. Civ. P. 30(b)(1) is different from taking a deposition of a party’s officer, director, or managing agent in his or her organizational capacity under Fed. R. Civ. P. 30(b)(1) or as an organization’s representative under Fed. R. Civ. P. 30(b)(6). The deposition of a party’s officer, director, or managing agent in his or her individual capacity probes that individual deponent’s personal knowledge of the facts and not that of the party organization. [ Note 2.] On the other hand, a Fed. R. Civ. P. 30(b)(1) deposition of a named officer, director, or managing agent of the party organization in his or her organizational capacity, just like a Fed. R. Civ. P. 30(b)(6) deposition taken of a representative of an organization, is testimony of the organization. Assuming that the organization is a party, the testimony elicited from a Fed. R. Civ. P. 30(b)(1) deposition of a named officer, director, or managing agent of the organization in his or her organizational capacity may be used at trial by the adverse party for any purpose. [ Note 3.] See TBMP § 412.06(a) for information regarding the taking of a deposition of a high-level official or executive of a corporation. See TBMP § 404.06(b) for information regarding the taking of a deposition of a corporation, organization, partnership, association, or other juristic person under Fed. R. Civ. P. 30(b)(6).
An employee or agent of an organization who does not qualify as an officer, director, or managing agent is not subject to deposition by notice under Fed. R. Civ. P. 30(b)(1). [ Note 4.] If a person does not qualify as an officer, director, or managing agent, he or she must be treated as a non-party witness. [ Note 5.]
It is possible for a witness to be deposed in his or her individual capacity under a Fed. R. Civ. P. 30(b)(1) notice of deposition and in his or her representative capacity as a Fed. R. Civ. P. 30(b)(6) designee under a Fed. R. Civ. P. 30(b)(6) notice of deposition. [ Note 6.]
For more information regarding depositions of natural persons, both parties and non-parties, see TBMP § 404.03.
NOTES:
1. United States v. One Parcel of Real Estate at 5860 North Bay Road, Miami Beach, Fla., 121 F.R.D. 439, 440 (S.D. Fla. 1988).
2. See 8A C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2103 (3d ed. April 2021 update) (discussing differences between a Fed. R. Civ. P. 30(b)(6) deposition and a "normal deposition").
3. United States v. One Parcel of Real Estate at 5860 North Bay Road, Miami Beach, Fla., 121 F.R.D. 439, 440 (S.D. Fla. 1988).
4. JSC Foreign Economic Association Technostroyexport v. International Development and Trade Services, Inc., 220 F.R.D. 235, 238 (S.D.N.Y 2004).
5. JSC Foreign Economic Association Technostroyexport v. International Development and Trade Services, Inc., 220 F.R.D. 235, 238 (S.D.N.Y 2004). See, e.g., HighBeam Marketing LLC v. Highbeam Research LLC, 85 USPQ2d 1902, 1906 (TTAB 2008) (expert witness in employ of opposer for Board opposition proceeding was not an officer, director, or managing agent of opposer and was "technically a non-party witness" subject to deposition by subpoena).
6. See Fed. R. Civ. P. 30(b)(6) ("This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules."); Pioneer Kabushiki Kaisha v. Hitachi High Technologies America Inc., 74 USPQ2d 1672, 1673 (TTAB 2005) (noting that Board granted motion to continue deposition of an officer in his capacity as Fed. R. Civ. P. 30(b)(6) witness and in his individual capacity).
404.06(b) Fed. R. Civ. P. 30(b)(6) Deposition of a Corporation, Organization, Partnership, Association, or Other Juristic Person
Fed. R. Civ. P. 30(b)(6) Notice or Subpoena Directed to an Organization.In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then 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. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
The preferred method for deposing a corporation, organization, partnership, association, or other juristic person is through a deposition under Fed. R. Civ. P. 30(b)(6). [ Note 1.] A Fed. R. Civ. P. 30(b)(6) deposition provides a party an efficient way to find out details about the organization as well as learn information that might warrant further exploration through individual depositions of natural persons.
The deponent at a Fed. R. Civ. P. 30(b)(6) deposition is the organization, and the organization speaks through the representative appearing at the deposition. [ Note 2.] A Fed. R. Civ. P. 30(b)(6) witness is responsible for providing all the relevant information known or reasonably available to the organization and his or her answers bind the organization. [ Note 3.] A party may notice a Fed. R. Civ. P. 30(b)(6) deposition of an organization without naming a specific person to be deposed, instead describing the information sought. The organization then must designate one or more individuals to testify on the organization’s behalf. [ Note 4.] A party seeking to depose the adverse party organization through a particular officer, director, or managing agent may notice the deposition of that officer, director, or managing agent, in their organizational capacity, under Fed. R. Civ. P. 30(b)(1). [ Note 5.] See TBMP § 404.03 and TBMP § 404.06(a) for information regarding depositions of natural persons, both parties and non-parties.
When an organization is named as a deponent by a party seeking discovery, the subject matter of the deposition is to be described with reasonable particularity in the notice. [ Note 6.] An organization served with a Fed. R. Civ. P. 30(b)(6) notice of deposition has an obligation not only to pick and produce persons who have knowledge of the subject matter identified in the notice [ Note 7.] but also to prepare those persons so that they can give complete, knowledgeable, and binding answers as to matters known or reasonably available to the organization. [ Note 8.] The organization may either produce as many deponents as are necessary to respond to the areas of inquiry in the notice if there is no witness with personal knowledge of all areas of inquiry, or alternatively, may produce a witness who reviews the organization’s records to become familiar with the topics for the deposition so that he or she may give knowledgeable and binding answers for the organization. [ Note 9.] If more than one Fed. R. Civ. P. 30(b)(6) witness will be designated, those individuals should be identified and the areas on which each person will testify be described. [ Note 10.] Even if no current employees have knowledge of matters identified in the notice, an organization is not relieved of preparing a Fed. R. Civ. P. 30(b)(6) designee for deposition to the extent that such matters are reasonably available to the organization from past documents, past employees, or other sources. [ Note 11.]
If it becomes obvious during the course of a Fed. R. Civ. P. 30(b)(6) deposition that the organization’s designee is deficient regarding his or her knowledge of matters reasonably known to the organization, the organization is obliged to provide a substitute and to prepare a designee to provide testimony in areas as to which its other representative was uninformed. [ Note 12.]
A party may be subject to a motion to compel for failure to designate a person pursuant to Fed. R. Civ. P. 30(b)(6) or if such designated person fails to appear for deposition or fails to answer any question propounded in a discovery deposition. [ Note 13.] A party may be subject to sanctions for failure of a designated person to attend the Fed. R. Civ. P. 30(b)(6) discovery deposition if after being served with proper notice, the party informs the party seeking the deposition that no response will be made. [ Note 14.] The production of an unprepared witness is tantamount to a failure to appear. [ Note 15.]
For more information regarding motions to compel and motions for sanctions, see TBMP § 523 and TBMP § 527.
Even though more than one person may be designated to testify under Fed. R. Civ. P. 30(b)(6) on various topics identified in the deposition notice, for purposes of the ten-deposition limit under Fed. R. Civ. P. 30(a)(2)(A)(i), which also applies in Board proceedings, [ Note 16.], the Fed. R. Civ. P. 30(b)(6) deposition is treated as a single deposition. [ Note 17.] For purposes of the time limitation under Fed. R. Civ. P. 30(d)(1) (limiting a deposition to "1 day of 7 hours"), the deposition of each designated person under a Fed. R. Civ. P. 30(b)(6) notice of deposition is considered a separate deposition. [ Note 18.]
Prior deposition testimony from an individual witness on a particular topic, does not relieve a party organization of its responsibility to designate a witness in response to a Fed. R. Civ. P. 30(b)(6) notice of deposition on that topic as individual witness testimony under Fed. R. Civ. P. 30(b)(1) is not binding on the organization. [ Note 19.]
NOTES:
1. Folwell v. Hernandez, 210 F.R.D. 169, 173 (M.D.N.C. 2002). See also City National Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1672 n.4 (TTAB 2013) (citing Fed. R. Civ. P. 30(b)(6) Advisory Committee Notes) ("one purpose of this rule is that it ‘will curb the "bandying" by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it.'").
2. Fed. R. Civ. P. 30(b)(6). See Pioneer Drive, LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552, 558 (D. Mont., 2009) (Fed. R. Civ. P. 30(b)(6) designee speaks for the organization as a whole and must make efforts to be able to do so). 8A C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2103 (3d ed. 2020).
3. Fed. R. Civ. P. 30(b)(6); 8A C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2103 (3d ed. 2020).
4. Folwell v. Hernandez, 210 F.R.D. 169, 172 (M.D.N.C. 2002). ("One of the important consequences of Rule 30(b)(6) is that under it, only the [organization] selects the persons who will testify.").
5. See JSC Foreign Economic Association Technostroyexport v. International Development and Trade Services, Inc., 220 F.R.D. 235, 238 (S.D.N.Y. 2004) (Although a corporate officer, director, or managing agent may be subject to deposition by notice under Fed. R. Civ. P. 30(b)(1), a corporate employee or agent who does not qualify as an officer, director, or managing agent of the corporation is not subject to deposition by notice under Fed. R. Civ. P. 30(b)(1)). Cf. HighBeam Marketing LLC v. Highbeam Research LLC, 85 USPQ2d 1902, 1906 (TTAB 2008) (expert witness in employ of opposer for Board opposition proceeding was not an officer, director or managing agent of opposer and was "technically a non-party witness" subject to deposition by subpoena).
6. Fed. R. Civ. P. 30(b)(6); Red Wing Co. v. J.M. Smucker Co., 59 USPQ2d 1861, 1864 (TTAB 2001) (party seeking discovery from corporation by deposition must describe subject matter of deposition with reasonable particularity in notice).
7. City National Bank v. OPGI Management GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1672 n.4 (TTAB 2013) ("Rule 30(b)(6) anticipates that a party’s designated witness will not necessarily have personal knowledge of all matters but will nonetheless offer testimony regarding information that the ‘party’ should be able to provide."); Kellogg Co. v. New Generation Foods Inc., 6 USPQ2d 2045, 2049 n.5 (TTAB 1988). See also Mattel Inc. v. Walking Mountain Productions, 353 F3d 792, 69 USPQ2d 1257, 1260 n.4 (9th Cir. 2003) ("Rule 30(b)(6) depositions . . . are often referred to as ‘persons most knowledgeable’ or ‘persons most qualified’ depositions because ‘the notice of deposition or subpoena is directed at the entity itself’ and ‘[t]he entity will then be obligated to produce the "most qualified" person [or persons] to testify on its behalf . . . .’").
8. A&E Products Group L.P. v. Mainetti USA Inc., 70 USPQ2d 1080, 1086 (S.D.N.Y. 2004) (and cases cited therein).
9. International Finance Corp. v. Bravo Co., 64 USPQ2d 1597, 1605 (TTAB 2002).
10. Fed. R. Civ. P. 30(b)(6).
11. United Technologies Motor Systems Inc. v. Borg-Warner Automotive Inc., 50 USPQ2d 1060, 1062 (E.D. Mich. 1998).
12. United Technologies Motor Systems Inc. v. Borg-Warner Automotive Inc., 50 USPQ2d 1060, 1062 (E.D. Mich. 1998). See Tulip Computers International B.V. v. Dell Computer Corp., 63 USPQ2d 1527, 1533 (D. Del. 2002) (purported failure to produce an adequately prepared Fed. R. Civ. P. 30(b)(6) witness may require a second deposition of that or another Fed. R. Civ. P. 30(b)(6) witness and payment of costs for second deposition).
13. 37 C.F.R. § 2.120(f). See United Technologies Motor Systems Inc. v. Borg-Warner Automotive Inc., 50 USPQ2d 1060, 1063 (E.D. Mich. 1998) (motion to compel due to unprepared 30(b)(6) witness); S. Industries Inc. v. Lamb-Weston Inc., 45 USPQ2d 1293, 1297-98 (TTAB 1997) (motion to compel appearance at Fed. R. Civ. P. 30(b)(6) deposition due to refusal to appear). But see OMS Investments, Inc. v. Habit Horticulture LLC, 2022 USPQ2d 1074, at *10 (TTAB 2022) (motion to compel deposition was premature when filed before Fed. R. Civ. P. 30(b)(6) deposition was to take place, and responding party had not entirely refused to designate or produce a witness).
15. United Technologies Motor Systems Inc. v. Borg-Warner Automotive Inc., 50 USPQ2d 1060, 1061 (E.D. Mich. 1998).
16. See Spliethoff's Bevrachtingskantoor B.V. v. United Yacht Transport LLC, 2020 USPQ2d 10605, at *2 (TTAB 2020) (the deposition limit of the Federal Rules of Civil Procedure applies in Board proceedings).
17. Fed. R. Civ. P. 30(b)(6) Notes of Advisory Committee on Rules –1993 Amendment.
18. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment.
19. Cf. Foster-Miller Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 54 USPQ2d 1193, 1205 (1st Cir. 2000) (fact that examining party had previously taken individual depositions of employees who were regarded as most knowledgeable on certain topics identified in a Fed. R. Civ. P. 30(b)(6) notice of deposition does not obviate responsibility of responding party to designate and produce those individuals as witnesses competent to testify on those topics on behalf of corporation).
404.06(c) Time for Deposition
Fed. R. Civ. P. 30(d)(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
A deposition is limited to one day of seven hours unless stipulated by the parties or otherwise authorized by Board order. [ Note 1.] Only actual deposition time counts against the presumptive limit; reasonable lunch and other breaks do not count against the seven hours. [ Note 2.] For Fed. R. Civ. P. 30(b)(6) depositions, the deposition of each designated person is considered a separate deposition for purposes of the durational limit. [ Note 3.]
The party seeking an order extending the examination or otherwise altering the time limitation is expected to show good cause. [ Note 4.] Fed. R. Civ. P. 30(d)(1) allows for additional time consistent with Fed. R. Civ. P. 26(b)(2) if needed for fair examination of the deponent. [ Note 5.] If the deponent or other person impedes or delays examination, additional time must be allowed. [ Note 6.] Additional time for deposition should be allowed if examination is delayed by "other circumstance" which might include "a power outage, health emergency, or other event." [ Note 7.] Orders directing shorter depositions or limited periods on several days are permitted. [ Note 8.]
The parties are expected to make reasonable accommodations to obviate the need for motion practice before the Board regarding deposition time limits. However, a party who requires Board intervention may wish to contact the Board attorney by telephone for assistance. See TBMP § 413.01.
NOTES:
1. Fed. R. Civ. P. 30(d)(1).
2. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment.
3. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment.
4. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment.
5. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment.
6. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment.
7. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment.
8. Fed. R. Civ. P. 30(d) Committee Notes on Rules – 2000 Amendment; Pioneer Kabushiki Kaisha v. Hitachi High Technologies America Inc., 74 USPQ2d 1672, 1677 (TTAB 2005) (limiting depositions of three deponents to three hours per deponent and conducted consecutively over one and one half days).
404.06(d) Re-Deposing a Witness
Fed. R. Civ. P. 30(a). When A Deposition May Be Taken.
* * * *
- (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):
* * * *
- (A) if the parties have not stipulated to the deposition and:
* * * *
- (ii) the deponent has already been deposed in the case;
* * * *
- (ii) the deponent has already been deposed in the case;
- (A) if the parties have not stipulated to the deposition and:
When a person has already been deposed in the case, a party must seek leave of the Board to take a second deposition if the parties have not stipulated thereto. [ Note 1.]
The decision to grant or deny leave to re-depose a witness is at the discretion of the Board and is guided by Fed. R. Civ. P. 26(b)(1) and (2). [ Note 2.]
In deciding the motion, the Board will consider whether the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; and the burden or expense of the proposed discovery outweighs its likely benefit. [ Note 3.]
The requirement to seek leave does not apply if the deposition is temporarily recessed for the convenience of counsel or the deponent, or to enable additional materials to be gathered for review or discussion during the deposition. [ Note 4.] If significant travel costs would be incurred to resume the deposition, the parties should consider the possibility of conducting the remaining examination by telephonic or other remote means, if feasible. [ Note 5.]
NOTES:
1. Fed. R. Civ. P. 30(a)(2)(A)(ii).
2. Fed. R. Civ. P. 30(a)(2).
3. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii); International Finance Corp. v. Bravo Co., 64 USPQ2d 1597, 1605 (TTAB 2002) (denying motion to take a second Fed. R. Civ. P. 30(b)(6) witness deposition when a designated Fed. R. Civ. P. 30(b)(6) witness had already testified at length on the same noticed topics).
4. Fed. R. Civ. P. 30(a)(2)(A)(ii) Notes of Advisory Committee on Rules – 1993 Amendment. Cf. Pioneer Kabushiki Kaisha v. Hitachi High Technologies America Inc., 74 USPQ2d 1672, 1673 (TTAB 2005) (noting that Board had previously granted motion to compel continued deposition of officer in individual and corporate capacity because original deposition had been adjourned to enable completion of document production).
5. Fed. R. Civ. P. 30(a)(2)(A)(ii) Notes of Advisory Committee on Rules – 1993 Amendment.