Under Fed. R. Civ. P. 30(b)(6), a litigant seeking a corporate adversary's deposition may insist that the corporation designate an individual to testify on the corporation's behalf about designated topics. The concept makes sense, because otherwise the litigant may have to depose numerous employees (who may or may not have the pertinent knowledge). But in practice, Rule 30(b)(6) depositions essentially rely on a fiction.

In Damarr-Faruq v. City of Pleasantville Police Department, plaintiffs' lawyer took a Rule 30(b)(6) deposition of defendant City — which objected when plaintiffs' lawyer "sought to reveal communications with the [defendant]s' counsel."  Civ. No. 21-1866 (KMW)(EAP), 2023 U.S. Dist. LEXIS 103181, at *6 (D.N.J. June 13, 2023).  Plaintiffs’ counsel correctly noted that the City "must provide responsive underlying factual information, even though such information was transmitted through an organization’s attorneys." Id. But the court sustained the City's objections — holding that plaintiffs' lawyer could not ask about those privileged communications, but instead could ask "solely for the facts" conveyed through such privileged communications. Id. 

Corporations' lawyers almost inevitably prepare their Rule 30(b)(6) witnesses to testify — gathering and conveying the pertinent facts to those witnesses. In fact, not playing such a central role might amount to malpractice. But adversaries must recognize the fiction that the deposition witnesses are only providing facts, rather than disclosing the factual portions of what were privileged communications. This may seem odd, but the process works — few Rule 30(b)(6) depositions provoke discovery motions like this.