South Dakota Court Refreshingly Acknowledges Rule 30(b)(6) Confusion

November 8, 2023

As noted in several previous Privilege Points, courts have great difficulty assessing privilege protection for communications relating to a Rule 30(b)(6) deposition — in which a corporation or other institution designates a deponent to testify about listed matters. Everyone knows that a lawyer entirely or at least in part gathers the necessary information and prepares the witness — who must testify about those facts, but who may decline to disclose protected communications with that lawyer.

In Hendrickson v. Rapid City, Pierre & Eastern Railroad, the court frankly acknowledged that “[a] quick review of the district courts around the nation would dispel plaintiff’s assertion that there is any one rule for how the work-doctrine is applied to 30(b)(6) depositions for good reason. . . .  [Courts’] discretion results in many different Rule 30(b)(6) outcomes.”  No. 5:22-CV-05063-LLP, 2023 U.S. Dist. LEXIS 151190, at *21 (D.S.D. Aug. 24, 2023). The court settled on what sounds like a nearly impossible needle to thread: “the . . . corporate representative can and should speak up as to the facts known to the business, and the position of the corporation, but not how those facts apply to the affirmative defenses.” Id. at *23.

It is a wonder that every Rule 30(b)(6) deposition does not spawn a judicial decision.