Found this recent case on the subject:
ZCT SYSTEMS GROUP, INC. v. FLIGHTSAFETY INTERNATIONAL
ZCT SYSTEMS GROUP, INC., Plaintiff,
v.
FLIGHTSAFETY INTERNATIONAL, Defendant.
Case No. 08-CV-447-JHP-PJC
United States District Court, N.D. Oklahoma
On Jan. 26, 2010, ZCT served a Rule 30(b)(6) Notice on FSI that it would take the depositions of certain FSI corporate representatives on specific topics. FSI designated Pitts for deposition on Feb. 12, 2010 at 9:30 a.m. on two topics: (1) the creation, contents, interpretation, and authentication of FSI’s spreadsheets produced in discovery and (2) FSI’s business dealings and contractual relationship with Aeroism and Tricom including a description of the types of codes FSI has provided to Aeorism and Tricom. [Dkt. No. 101, Exh. 1]. FSI designated Van Maren for deposition on Feb. 16, 2010 on two topics: (1) FSI’s business dealings and contractual relationship with Aeroism and Tricom including the services provided by Aeroism and Tricom and the intended use by FSI of the deliverables provided by Aeroism and Tricom. [Dkt. No. 101, Exh. 1].
By agreement of the parties, Pitts and Van Maren were to be deposed as 30(b)(6) witnesses first. following their depositions as corporate representatives, both men were to be deposed as individual fact witnesses.[ 1 ]See Dkt. No 139, Exh. 3 & 4.
A. Instruction Not to Answer Based on Scope of 30(b)(6) Notice.
At their 30(b)(6) depositions, Pitts and Van Maren were frequently instructed by counsel not to answer questions on the ground that those questions were outside the scope of the 30(b)(6) notice. FSI contended that these questions should instead be reserved for the Rule 26 depositions. ZCT contends that the questions were not outside the scope of the 30(b)(6) notice, and that in any case it was improper to instruct the witnesses not to answer. the Court agrees with this latter point.
The Federal Rules of Civil Procedure are clear:
A person may instruct a deponent not to answer a question only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
Fed. R. Civ. P. 30(c)(2).
The instruction not to answer on 30(b)(6) scope grounds was improper because FSI was not seeking to preserve a privilege, enforce a limitation ordered by the court or in order to present a motion under Rule 30(d)(3).[ 2 ]
The two leading cases on the scope of a Rule 30(b)(6) deposition are King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D.Fla. 1995) (allowing questioning beyond the areas listed in a Rule 30(b)(6) notice) and Paparelli v. Prudential Insurance co., 108 F.R.D. 727, 730 (D.Mass. 1985) (limiting a Rule 30(b)(6) deposition to matters stated with “reasonable particularity” in the deposition notice). however, even Paparelli held that it is improper to instruct a witness not to answer on the grounds that questions were outside the scope of the 30(b)(6) notice. Id. at 730-31.
FSI’s counsel should have simply allowed the questioning of Pitts and Van Maren to proceed while noting where necessary that the witness’ answer was not binding on the corporation. This is not a special rule of this Court as has been suggested. for example, in Detoy v. City and County of San Francisco, 196 F.R.D. 362 (N.D.Cal. 2000), the Court noted:
If the examining party asks questions outside the scope of the matters described in the notice, the general deposition rules govern (i.e. Fed.R.Civ.P. 26(b)(1)), so that relevant questions may be asked and no special protection is conferred on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6).
Id. at 366-67 (emphasis added). See also Batts v. County of Santa Clara, 2010 WL 545847 (N.D.Cal. Feb. 11, 2010) (holding that instructing a witness not to answer a question on grounds that it was outside the scope of the 30(b)(6) notice was “clearly improper.”)
Counsel’s instructions not to answer was clearly improper, in violation of the Federal Rules and unreasonably obstructed the depositions.
