Who Knew?

Case: In re Neurontin Antitrust Litigation, 2011 U.S. Dist. LEXIS 62032, MDL No. 1479, Master File No. 02-1390 (D.N.J. 6/9/2011).

Topic: Duties and responsibilities of a corporate Fed. R. Civ. P. 30(b)(6) witness


Direct purchasers of the drug Neurontin brought an antitrust lawsuit claiming that the drug's two manufacturers took part in a scheme to delay market entry of a generic version of the drug. Part of the alleged scheme included defendants' illegal promotion of Neurontin for off-label uses. Both defendants denied the off-label promotion in their Answers to the plaintiffs' Complaint, but defendant Pfizer had previously pled guilty to the illegal marketing in a separate criminal case. 

Magistrate Judge Schwartz ordered Pfizer to produce a Fed. R. Civ. P. 30(b)(6) witness to testify as to the factual basis for the denials in its Answer regarding off-label use. The first Rule 30(b)(6) witness Pfizer produced did not know the reasons and was therefore non-responsive. After the Magistrate's award of sanctions for failure to produce a suitable designee, Pfizer produced another witness who could testify to the topic only by relying on and reading from an outline prepared for him by Pfizer's attorney. Plaintiffs again sought sanctions for Pfizer's failure to produce an adequate Rule 30(b)(6) witness, and Magistrate Schwartz again agreed and issued sanctions.

The district court upheld Magistrate Schwartz's order. The court held that Rule 30(b)(6) witnesses have an affirmative obligation to educate themselves about the corporation. This includes reviewing documents needed to prepare for the deposition, regardless of volume. Simply repeating material in an outline prepared by deposition counsel without any underlying knowledge or awareness of the factual bases does not fulfill that obligation. Additionally, the district court held that the outline the witness used in the deposition was attorney work product and its use at the deposition waived the protection. In further support of striking work product objections, the district court agreed that a substantial need justified piercing the work-product protection because Pfizer had twice failed to comply with the directive to produce a witness to testify about the topic at issue.

BuLits Points

  • Proper Preparation. Rule 30(b)(6) witnesses are required to take the steps needed to educate themselves about the matters to which they will testify. While a witness is permitted to use outlines or other aids to assist his memory during a deposition, the witness has an obligation to become familiar with the material underlying the outline, even if the review of such material would be burdensome.
  • Worth the Time it Takes. Producing an improperly prepared Rule 30(b)(6) witness may be deemed a failure to appear. Because such failures are subject to sanctions under Fed. R. Civ. P. 37(d), inadequate preparation may have significant consequences in the litigation, including potential preclusion of evidence at trial.
  • Advocate, Not Manufacture. Deposition counsel may not turn the Rule 30(b)(6) witness into a mouthpiece who merely parrots counsel's theory of the cases. Instead, the corporate designee must have an opinion as to why the facts at issue should be construed in the manner presented-and this is the position the counsel should advocate.

And Remember

Judges read deposition transcripts in discovery disputes. The sanctions ordered by Magistrate Schwartz and upheld by the district court included costs, restrictions on admissible evidence at trial, and a re-deposition of the witness with specific restrictions on defense counsel who could defend the deposition. Magistrate Schwartz's decision included consideration of the fact that Pfizer's counsel's objections and other conversation took up more than 20% of the deposition of the second Rule 30(b)(6) witness.

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