Privilege and a Rule 30(b)(6) Deposition?

Thomas Spahn of McGuireWoods LLP has written an interesting post on the interplay between the attorney-client privilege and a Fed.R.Civ.P. 30(b)(6) deposition of a corporate designee.  The Strange Fiction of Rule 30(b)(6) | McGuireWoods LLP – JDSupra  (Aug, 3, 2023).

The blog highlights Damarr-Faruq v. City of Pleasantville P.D., 2023 U.S. Dist. LEXIS 103181 (D.N.J. June 13, 2023).

Mr. Spahn explains that plaintiffs’ lawyer conducted a Rule 30(b)(6) deposition of defendant’s corporate designee.  He wrote that the City defendant objected to questions that sought to reveal communications between the designee and defense counsel.

The defendant objected and the court sustained the objections.  Mr. Spahn wrote that the court held “that plaintiffs’ lawyer could not ask about those privileged communications, but instead could ask ‘solely for the facts’ conveyed through such privileged communications.”

Mr. Spahn provided an excellent explanation:

Corporations’ lawyers almost inevitably prepare their Rule 30(b)(6) witnesses to testify — gathering and conveying the pertinent facts to those witnesses. In fact, not playing such a central role might amount to malpractice. But adversaries must recognize the fiction that the deposition witnesses are only providing facts, rather than disclosing the factual portions of what were privileged communications. This may seem odd, but the process works — few Rule 30(b)(6) depositions provoke discovery motions like this.

He added that: “Plaintiffs’ counsel correctly noted that the City ‘must provide responsive underlying factual information, even though such information was transmitted through an organization’s attorneys.'”

This type of compelled disclosure should not waive any privilege.  For example, when a court compels production, and disclosure is not voluntary, the privilege is not waived.    Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228, 240-42 (D. Md. 2005).  In short, waiver cannot be compelled.  Id. at 242.  Production under a court order is “immunized from waiver….” Id. at 246.

The holding of Damarr-Faruq v. City of Pleasantville P.D., as described in Mr. Spahn’s excellent blog, makes sense.