When a 30(b)(6) representative is deposed, the testimony is that of the organization, not of the individual answering the questions. However, in the heat of battle, it can be challenging to remember this distinction. Questions in 30(b)(6) depos that use words like "you" - and answers that use words like "I" or "me" - can blur the roles and lead an examiner to see the testimony as also being that of the witness individually. But it isn't. Psychologists refer to this confusion as an "attribution error," meaning that we may attribute the testimony to the wrong source.

This confusion can be fatal to a claim if the representative is also a key witness individually and wasn't deposed separately. Today, Jim discusses a brand new court ruling where a federal judge dismissed a claim against an individual defendant (and key witness) who was only deposed as a 30(b)(6) deponent. The question there was, when a 30(b)(6) witness says “I,” who’s really speaking—the individual or the entity? Learn how that 30(b)(6) deposition in Ademi wasn't enough to survive summary judgment, and what every litigator must do to avoid the same trap. Essential listening for anyone taking or defending corporate rep depositions.

SHOW NOTES

Ademi, et al. v. Central Park Boathouse, LLC, and Dean Poll, individually, No. 22-cv-8535 (S.D.N.Y. Sept. 23, 2025) (summary judgment granted in favor of individual defendant where plaintiff’s counsel only deposed defendant in a 30(b)(6) capacity and, thus, had no testimony from the witness himself)

Fed. R. Civ. P. 30(b)(6) (designated representative rule)

King v. Pratt and Whitney, 161 F. R. D. 275 (S. D. Fla. Apr. 27, 1995) (rule governing representative depositions doesn’t limit scope of questions that can be asked, beyond topic list); Joseph v. Chronister, et al, 2019 WL 8014505, Case No. 8:16-cv-274-T-35CPT (M. D. Florida January 29, 2019) (scope of designated-representative deposition is not strictly confined to topics set forth in notice; further noting the twin benefit of this type of deposition, being that it limits the number of people within a corporation to be deposed, and prevents bandying); See Marksberry v. FCA US LLC, 2021 WL 2142655, No. 19-2724 (D. Kan. May 26, 2021) (lawyers may object to topics as “outside the scope” of that listed on the 30(b)(6) notice, and such objections have been held to be permissible, but the witness “must nevertheless answer the question because Fed. R. Civ. P. 26(b) - not the deposition notice defines the scope of discovery”).

In this episode, Jim Garrity uses a pending bar disciplinary proceeding against a Florida lawyer as a potent reminder of the consequences of failing to ensure that your conversations during breaks in remote (virtual) depositions are not heard by others. As always, he offers practical guidance to help you avoid this potentially career-ending mistake. Citations to the referenced case are in the show notes.

SHOW NOTES

Zoom community forum reporting audio feed despite activation of mute button (https://community.zoom.com/t5/Zoom-Meetings/Participant-on-mute-yet-I-can-still-hear-them/m-p/142674)

Excerpt from Zoom’s terms of service at https://www.zoom.com/en/trust/terms/ (You agree [that the software and services are provided “as is” and that Zoom makes no guarantee] . . . .that the services or software will...be...error free. . . . [Y]ou will be solely responsible for any damage to you resulting from the use of the services or software. The entire risk arising out of use or performance of the services or software remains with you”)

Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed February 1, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Respondent’s Response to Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed March 11, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Report of Referee, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed April 28, 2025); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Amended Initial Brief (attorney appealing Report & Recommendation of Referee), The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed September 15); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Today, Jim Garrity examines a critical issue in trial practice: whether an incomplete deposition—cut short when the deponent becomes unavailable—can be admitted at trial, particularly when the opposing party had no opportunity for cross-examination. Drawing on a new Sixth Circuit Court of Appeals decision and Rule 32 of the Federal Rules of Civil Procedure, Jim explores the court’s decision, the key factors trial lawyers should argue for or against exclusion, and the balancing test that should be used when essential testimony hangs in the balance. Discover practical strategies for both offering and opposing use of incomplete deposition transcripts in high-stakes litigation. Thanks for listening!

SHOW NOTES

Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)

Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)

Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)

Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)

Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)

Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)

In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)