Can You Make a Corporation Testify at Trial?
Election sound bites aside, many of us in the legal profession assume that corporations [1] are basically people, at least as far as the law is concerned. Corporations can own property, sue and be sued, and even be charged with crimes. Anyone accustomed to seeing contracts signed by one corporation on behalf of another can be forgiven for assuming that anything the law demands of a person can be demanded of a legal entity too.
But assumptions are dangerous when it comes to trial procedure. For example, you might assume that it’s a simple matter to demand that a corporation testify at trial, at least if it is a party. After all, in federal court discovery, Rule 30(b)(6) requires a corporation to produce an individual to speak on its behalf at deposition. So long as the deposition notice or subpoena identifies clear and relevant topics for questioning, the corporation is required to find someone to answer questions under oath and to “educate” that person with everything the corporation
– collectively – knows about the chosen issues. That deposition testimony is “imputed” to the corporation and courts treat it as though the corporation itself – the disembodied legal entity – spoke those words and gave the relevant answers under oath.
Knowing this, you might assume that a similar procedure applies at trial. If a corporation can be forced to testify in a deposition before trial, it would stand to reason that there would be some way to force that same corporation to put its champion on the witness stand and deliver similar sworn testimony in front of a jury.
Except that in federal court, it is not altogether clear that this is the case. Numerous district courts have held that Rule 30(b)(6) applies only during discovery and that no process exists for achieving a similar effect at trial. For example, just last year in Giarratano v. Huntington Ingalls Inc., [2] a district court quashed a subpoena seeking trial testimony of a corporation holding that:
While Rule 30(b)(6) specifically contemplates that a party may serve a subpoena on a corporation who must then designate a representative to testify, the rule applies only to depositions, not trial testimony. For this reason, Rule 30(b)(6) “may not be used in conjunction with Rule 45 to serve a subpoena on a corporation for purposes of securing trial testimony without naming a particular individual,” and Rule 45 does not contemplate service of a subpoena on a corporate entity. [3]
Nor is this a unique or otherwise aberrant result. Several other district courts have come to substantially the same conclusion. [4]
No Court of Appeals has squarely addressed the issue, but there is language from the Fifth Circuit that suggests that these lower courts may be correct. In Brazos River Auth. v. GE Ionics, Inc., [5] the Fifth Circuit vacated a jury verdict based upon a series of evidentiary rulings made by the trial court, including that court’s decision to preclude testimony from a witness who had previously been deposed as a 30(b)(6) designee. The Fifth Circuit held that this was error, writing:
Although there is no rule requiring that the corporate designee testify “vicariously” at trial, as distinguished from at the rule 30(b)(6) deposition, if the corporation makes the witness available at trial he should not be able to refuse to testify to matters as to which he testified at the deposition on grounds that he had only corporate knowledge of the issues, not personal knowledge. This conclusion rests on the consideration that though Federal Rule of Civil Procedure 32(a)(2) “permits a party to introduce the deposition of an adversary as part of his substantive proof regardless of the adversary's availability to testify at trial,” district courts are reluctant to allow the reading into evidence of the rule 30(b)(6) deposition if the witness is available to testify at trial, and such exclusion is usually deemed harmless error. Thus, if a rule 30(b)(6) witness is made available at trial, he should be allowed to testify as to matters within corporate knowledge to which he testified in deposition. [6]
Several lower courts have subsequently seized upon this “no rule requiring that the corporate designee testify ‘vicariously’” language as a basis to quash trial subpoenas directed at corporations. [7]
To be sure, there are trial court decisions that go the other way, permitting testimonial subpoenas directed at corporations at trial. [8] But in the absence of Court of Appeals authority on this position, the stark conflict in the district courts and language from the Fifth Circuit make it impossible to guarantee that any subpoena directed at a corporate designee for testimony at trial will be honored.
So, what lessons can we take away from all of this?
First, it is absolutely essential to take the 30(b)(6) deposition of any corporation from whom you may want testimony at trial. Doing so is important not merely for setting up summary judgment motions or creating control documents, but because may constitute – in effect – a de bene esse deposition of the corporation, whether it is available at trial or not. Even if the corporation is a party to the case, you cannot be sure that they will be required to put a corporate representative on the witness stand. But under Rule 32(a)(3), you can be much more confident that a deposition will be shown or read to the jury.
Second, when you take the 30(b)(6) deposition of a corporation – in any case – you should consider the possibility that it will have to be presented, at length, in front of a jury. At a bare minimum, that means that it should be videotaped. But it also means structuring questioning so that the examination can be followed by a lay person and asking the kinds of aggressive cross examination questions that you might otherwise save for trial. Because when it comes to corporate testimony, if you save it for trial, you may not get it at all.
[1] I use the term “corporation” throughout as a stand-in for more cumbersome generic terms like “legal entity.” The cited decisions and Rule 30(b)(6) draw no relevant distinction between the various flavors of Inc., LP, LLC, Ltd., AG, GMBH, or otherwise.
[2] Case No. CV 22-88, 2023 WL 2898332 (E.D. La. Apr. 11, 2023).
[3] Id. at *3.
[4] See Rennenger v. Manley Toy Direct L.L.C., Case No. 4:10-cv-00400-REL-RAW, 2015 WL 13981436, at *1, (S.D. Iowa April 16, 2015) (“There is no counterpart to the Rule 30(b)(6) procedure in Rule 45 with respect to subpoenas for trial testimony.”); In re Otero Cnty. Hosp. Ass'n, Inc., Case No. 11-11-13686 JL, 2014 WL 184984, at *10 (Bankr. D.N.M. Jan. 15, 2014) (“Rule 30(b)(6) applies to deposition testimony, not trial testimony. For this reason Rule 36(b)(6) may not be used in conjunction with Rule 45 to serve a subpoena on a corporation for purposes of securing trial testimony without naming a particular individual.”); Dopson-Troutt v. Novartis Pharms. Corp., 295 F.R.D. 536, 539 (M.D. Fla. 2013) (“Rule 30(b)(6) does not apply to subpoenas for trial testimony”); Hill v. Nat'l R. R. Passenger Corp., Case No. CIV. A. 88-5277, 1989 WL 87621, at *1 (E.D. La. July 28, 1989) (“There is no provision allowing the use of the 30(b)(6)-type designation of areas of inquiry or allowing service on a corporation through an agent for service of process in order to compel a particular person, who may be a corporate employee outside the subpoena power of the court, to testify at the trial.”).
[5] 469 F.3d 416 (5th Cir. 2006).
[6] Id. at 434 (citation omitted)
[7] See De Jaray v. Lattice Semiconductor Corp., Case No. 3:19-CV-86-SI, 2024 WL 188837, at *4 (D. Or. Jan. 18, 2024) (denying motion to compel testimony from corporate representative at trial); Giarratano, at *3 (E.D. La. Apr. 11, 2023) (“There is no rule requiring that a corporate designee testify “vicariously” at trial.”).
[8] See Conyers v. Balboa Ins. Co., Case No. No. 8:12–cv–30–T–33EAJ, 2013 WL 2450108, at *2 (M.D. Fl. June 5, 2013) (“Thus, upon due consideration of the parties' arguments and the Court's evaluation of Rule 45, the Court determines that Balboa must comply with the subpoena by producing its corporate representative at trial”); Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 262 F.R.D. 293, 303 (2009) (refusing to quash subpoena on grounds that “[t]he Bondholders, as parties to this action, affirmatively have taken advantage of the benefits of this forum, and the Court has the power to require these parties to produce corporate representatives to testify on their behalf at trial”). And some courts have split the difference, permitting subpoenas of corporations so long as the topics are limited to matters previously covered in a 30(b)(6) deposition. Mangiaracina v. BNSF Railway Company, Case No. 16-cv-05270-JST, 2021 WL 11701467, at *1 (N.D.Cal. Nov. 2, 2021) (“The Court also agrees, however, with those courts that have limited enforcement of corporate designee subpoenas to topics already covered in a prior Rule 30(b)(6) deposition.”).
