Under Fed. R. Civ. P. 30(b)(6), corporations must designate a witness to testify about the corporation's knowledge. Surprisingly few courts have reconciled this requirement with the common if not universal role that lawyers play in preparing such witnesses.
In 01 Communique Laboratory, Inc. v. Citrix Systems, Inc., the plaintiff "inquired [during its deposition of Citrix's Rule 30(b)(6) witness] whether Citrix believed that any of its products infringed [Citrix's licensor's] patents and whether Citrix believed the . . . patents were valid." Case No. 1:06-cv-253, 2016 U.S. Dist. LEXIS 3011, at *6 (N.D. Ohio Jan. 10, 2016). Citrix's witness refused to answer the questions, "on the basis that Citrix's beliefs were inseparable from the legal advice it received with respect to those issues." Id. The court upheld the magistrate judge's conclusion that "Citrix's beliefs regarding the legal issues of infringement and validity were based entirely on the advice of counsel" — meaning that "Citrix's beliefs are one and the same as the advice of counsel, regardless of whether [plaintiff's] questions attempted to directly elicit privileged information." Id. at *9.
Not all courts would be this generous to corporations claiming privilege during their Rule 30(b)(6) witness's deposition testimony. At some point, corporations must state their positions in pleadings, deposition testimony or at trial — but some courts provide more protection than others in the deposition context.