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To Speak or Not to Speak: The “Personal Knowledge” Requirement of a Corporate Representative

Federal Rule of Civil Procedure 30(b)(6) permits a corporate representative to testify during deposition about matters within the corporation’s knowledge.  This testimony does not require the corporate representative to have a first-hand account of the corporation’s knowledge to which she testifies about, as the corporate representative may be educated about corporate matters for deposition purposes.

Should the need arise, an adverse party may use that 30(b)(6) deposition testimony during trial. Fed. R. Civ. P. 32(a)(3).   In fact, Rule 32(a)(3) permits the introduction of Rule 30(b)(6) deposition testimony by an adverse party for any purpose at trial.  Union Pump Co. v. Centrifugal Tech., Inc., 404 F. App’x 899, 907-08 (5th Cir. 2010) (citing Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006)).  While the corporate representative may or may not have the personal knowledge required by Federal Rule of Evidence 602, Federal Rule of Evidence 801(d)(2) permits an adverse party to admit the testimony as an opposing party’s statement.

Where it gets tricky is here: can that 30(b)(6) witness testify live at trial? Unfortunately, the answer to this question is not so straightforward, and likely depends on the circuit where the litigation occurs.

Although the corporate representative has the ability to cover a myriad of corporate matters about which she has been educated for during the deposition, some courts have held that Evidence Rule 602 limits the scope of the witness’s trial testimony to matters that are within her personal knowledge.  Union Pump Co., 404 F. App’x at 908; Indus. Eng’g & Dev., Inc. v. Statis Control Components, Inc., 2014 U.S. Dist. LEXIS 141823 at *10 (M.D. Fla. Oct. 6, 4014) (At trial, “[r]ule 30(b)(6) does not eliminate Rule 602’s personal knowledge requirement.”).  These courts take the view that because hearsay testimony is improper at trial, the corporate representative may only testify live about matters that are within her personal knowledge.

Other courts have taken a different approach and held that a Rule 30(b)(6) witness may testify both in a deposition (or affidavit) and at trial to matters which she lacks personal knowledge but is “testify[ing] about information known or reasonably available to the organization.”  Humphreys v. Bank of Am., 557 Fed. Appx. 416, 424 n.6 (6th Cir. Feb. 11, 2014); Univ. Healthsystem Consortium v. UnitedHealth Grp., Inc., 2014 U.S. Dist. LEXIS 131356 at *5 (N.D. Ill. Sept. 19, 2014) (stating there is “little principled distinction” between allowing a 30(b)(6) witness to testify at trial without personal knowledge and allowing him to testify at deposition without personal knowledge).

With the rise in testimony from corporate representatives and the split of authority among circuits, the experienced litigator would be wise to research how the courts in his circuit view the trial testimony of a corporate representative and define the personal knowledge requirement of Rule 602.

Paige Ayres Nutini

Ayres Paige