Episode 36 - Can an Entity Later Use Affidavits to Contradict the Testimony of Its 30(b)(6) Designee?

We've all heard the mantra that the testimony of a corporate or organizational representative under Fed. R. Civ. P. 30(b)(6) or its state analogues is "binding on the entity." But is it? Does an entity have fewer rights to later serve affidavits that contain contradictions of varying magnitudes than an individual deponent does? In this episode, Jim Garrity answers the question, offers practical tips, and provides supporting case citations in the show notes.

Please do us a small favor. Sure to rate us five stars on whatever site you get your podcasts. Higher ratings make us more visible and make it easier for other litigators to learn about the show. Thank you!

SHOW NOTES:

Waters v. Hall, et al., No. 1:19-00798-KD-C, 2021 WL 1168695 (S. D. Ala. March 26, 2021) (noting that corporations have the same opportunity to revise earlier testimony as individuals, subject to being stricken as sham contradictions and/or to credibility check challenges at trial)

A & E Prods. Group., L.P. v. Mainetti USA, Inc., No. 01 Civ 10820(RPP), 2004 WL 345841, at *6–*7 (S.D.N.Y. Feb. 25, 2004) (allowing corporate party to introduce declaration of one of its employees that was inconsistent with deposition testimony corporation’s Rule 30(b)(6) representative)

Industrial Hard Chrome Ltd. v. Hetran, Inc., 92 F. Supp. 2d 786, 791 (N. D. Ill. 2000) (explaining that [R]ule 30(b)(6) deposition “testimony is not a judicial admission that ultimately decides an issue. The testimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes”)

W.R. Grace & Co. v. Viskase Corp., No. 90 C 5383, 1991 WL 211647, at *2 (N. D. Ill. Oct. 15, 1991) (deposition corporate party to offer at trial evidence contrary to its corporate representative’s earlier testimony in a Rule 30(b)(6) deposition)

Hyde v. Stanley Tools, 107 F. Supp. 2d 992, 992–93 (E. D. La. 2000) (“[While a] court may disregard an affidavit which directly contradicts an earlier 30(b)(6) deposition... [c]ourts have allowed a contradictory or inconsistent affidavit to nonetheless be admitted if it is accompanied by a reasonable explanation”)

*Santa Clarita Valley Water Agency v. Whittaker Corporation, et al., 2021 WL 4338973 (C.D. Cal. Aug. 13, 2021) (while testimony of 30(b)(6) designees binds entity, it does not prevent entity from correcting or clarifying testimony, like any other witness)