Under Fed. R. Civ. P. 30(b)(6), an entity must prepare a designated witness to testify about specified topics. This type of deposition implicates several competing principles, because (1) such witnesses must provide historical facts, which are never privileged; and (2) those witnesses almost invariably learn such historical facts during deposition preparation sessions with the company's lawyer, which normally deserve privilege and work product doctrine protection.
In In re Cathode Ray Tube (CRT) Antitrust Litigation, plaintiffs sought to compel a defendant's Rule 30(b)(6) witness to testify about its outside lawyers' internal investigation into pertinent facts — insisting that the "corporate designee must be prepared to testify about factual information transmitted to or from counsel." Master Case No. 3:07-cv-05944SC, 2015 U.S. Dist. LEXIS 147413, at *219-20 (N.D. Cal. Oct. 5, 2015). Among other things, plaintiffs asked that the designated witness be compelled to review the company lawyers' witness interview memoranda. The court rejected plaintiffs' motion, concluding that (1) the company lawyers' witness interview memoranda "so intertwine facts and attorney mental impressions that the facts cannot be readily separated from the attorney impressions"; (2) the facts contained in the interview memoranda might be inaccurate, "due to faulty memory or transcription"; and (3) requiring the designated witness to "study the interview memoranda and attempt to extract underlying 'facts' known to the corporation would be an exceedingly time-consuming and problematic undertaking." Id. at *227. The court also noted that plaintiffs had already deposed ten current or former company employees involved in the underlying events.
Not all courts would so readily protect corporate defendants' work product. However, many courts struggle when analyzing privilege and work product protection issues involving Rule 30(b)(6) depositions.