Interplay Between the Privilege and Rule 30(b)(6) Depositions

March 5, 2008

Fed. R. Civ. P. Rule 30(b)(6) and state counterparts allow the adversary of a corporation or other organization to demand that the organization designate a spokesperson to answer deposition questions about designated topics. This useful discovery device implicates privilege issues — especially when applied against the government.

In Metropolitan Life Insurance Co. v. Muldoon, Civ. A. No. 06-2026-CM-DJW, 2007 U.S. Dist. LEXIS 94530 (D. Kan. Dec. 20, 2007), Muldoon had settled a Federal Tort Claims Act case against the United States, but later declared bankruptcy. Plaintiff MetLife filed a lawsuit to determine the fate of the annuity payments. One of the defendants sought a Rule 30(b)(6) deposition of the United States government, designating such topics as the government’s policy toward structured settlements. The court quashed the deposition notice, holding that “[t]he deposition would necessarily inquire into the strategies and policies applied by the United States in resolving federal tort claims litigation. Thus, a request to depose a government representative regarding [that topic] would invade the attorney-client privilege and work product doctrine.” Id. at *6.

Courts might not be so protective of corporate defendants, but company lawyers should be prepared to cite decisions like this in similar settings.