Daily Journal

Selecting and Preparing an Effective Rule 30(b)(6) Witness for E-Discovery: A Comprehensive Guide

May 2023

By Daniel Garrie and Hon. Thomas I. Vanaskie

Selecting and Preparing an Effective Rule 30(b)(6) Witness for E-Discovery: A Comprehensive Guide Featured Image

In recent years, litigants increasingly seek information about electronic data and systems through depositions, using the Federal Rule 30(b)(6) deposition or, similarly, the Person Most Knowledgeable (PMK) deposition in California practice. Further, both federal and state courts have imposed strict requirements for parties to identify, preserve, and produce electronic documents. This article offers general guidance on selecting and preparing a PMK witness.

  • Selecting A PMK Witness: A Rule 30(b)(6) or PMK witness does not, and cannot, know everything. But The PMK witness must be well-versed in the company’s systems and must be able to speak in good faith about them. Assign the role to an experienced employee with a deep understanding of the company’s systems rather than an administrative-level employee who may lack the necessary expertise and management experience.
  • Documenting the Selection Process:  Counsel should memorialize the process for selecting the 30(b)(6) or PMK witness or witnesses.  Outside counsel should not defer to in-house counsel, but instead should conduct interviews of both in-house counsel and the person(s) who may be chosen as the PMK or 30(b)(6) witness to assure that the appropriate person has been designated to testify on behalf of the organization.  File memos or other appropriate memorials of the selection process should be prepared so that counsel is able to defend the choice of witness(es) if there is a question raised as to the selection of the PMK or 30(b)(6) witness. 
  • Intelligence And Thoughtfulness: A PMK witness should be able to think on their feet, possess the ability to think critically, and exercise sound judgment to address unexpected questions. Keep in mind that their answers will represent the company. Depending on the case, it may be appropriate to designate multiple PMKs, although this can risk inconsistent testimonies. 

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