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Defending the 30(b)(6) Corporate Representative Deposition and the Reptile

Source: May 2023 •  Joseph W. Pappalardo, Esq, Gallagher Sharp LLP & Matthew A. Smartnick, Esq., Gallagher Sharp LLP

The Rule

Rule 30(b)(6) applies to depositions of both party and non-party corporations, requiring that the noticing party issue a subpoena to non-party deponent corporations. The rule has two requirements: the notice must describe with "reasonable particularity" the matters for examination, and the designee must testify about information known or reasonably available to the organization. As regards the latter, the designee must make reasonable inquiry within the organization and the organization must educate the designee. Once the corporation has designated a deponent on a particular issue, it becomes bound by the designee's testimony, which may be used "for any purpose" at trial, regardless of whether that individual is available to testify. A Rule 30(b)(6) deposition does not foreclose a deposition by any other procedure under the Federal Rules.

Notice Requirements

The notice required by Rule 30(b)(6) must provide the date, time, and place for taking the deposition, specify the name and address of the entity being deposed, set forth the matters for examination with reasonable particularity, indicate the method by which the testimony will be recorded and whether documents are sought, and be accompanied by a document request or formal Rule 34 request for the production of documents. A corporation's Rule 30(b)(6) witness should be deposed in the district of the corporation's place of business, "subject to modification, however, where justice requires." Plaintiff’s attorneys sometimes try to depose a corporate representative at company headquarters or other sensitive locations, but a motion for protective order should be considered.

A protective order should be granted by the court when the moving party establishes "good cause" for the order and when justice requires a protective order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. The court will consider the facts, select the place of examination, and determine what justice requires with regard to payment of expenses and attorney fees. Unlike a deposition notice pursuant to Rule 30(b)(1) for the deposition of other witnesses, the Rule 30(b)(6) notice must describe with reasonable particularity the matters to be examined, and objections should be made immediately if a notice is unclear.

Defendant's counsel should respond to each area of inquiry with detailed and thorough objections where necessary, including objections to proportionality, relevance, materiality, broadness, harassment, mental impressions of counsel, matters in the province of experts, and matters for which there is no corporate knowledge. It is common and best practice for opposing attorneys to meet and confer on all of these issues prior to the deposition.

Limits on the Deposition

A Rule 30(b)(6) deposition is treated differently from other depositions for purposes of the Federal Civil Rules 10-deposition rule. Where a corporation designates multiple designees to testify on different topics, each designation will count as a separate deposition. A Rule 30(b)(6) deposition should be structured to address questions related to the claims at issue. The reasonable particularity standard means that the requesting party must designate specific areas that will be investigated, and broad or generic notices are not sufficient.

Deponent Corporation’s Duties

When a corporation receives a Rule 30(b)(6) deposition notice, it must designate one or more witnesses to testify and educate them on the matters for examination. The designated representative(s) do not need to be the person most knowledgeable- “PMK” -about the matters (the PMK concept is often misunderstood), but must be able to provide binding answers on behalf of the corporation.

The purpose of the Rule 30(b)(6) witness is to represent the collective knowledge of the corporation, and not have the witness testify to the designated witness’s personal opinions or beliefs. The designated individual may and will likely need to review materials and meet with people from within the organization to become educated enough to speak for the corporation. The witness can be examined on the corporation's opinions and beliefs.

The designated witness must be qualified to testify and must answer the questions, unless the area of inquiry is not within the knowledge of the corporation, is privileged, or is harassing. In some cases, more than one corporate witness may need to be presented, but careful preparation and coordination is key in such situations. If possible multiple deponents should be avoided to minimize the possibility of inconsistent testimony.

Generally speaking, an answer of “I don’t know” by the corporate representative during the deposition is not an adequate response.

Thus, one of the most important tasks is choosing the correct deponent. Simply relying upon “legacy” witnesses because they have testified so many times is not advisable. Counsel and the corporate defendant need to carefully evaluate who is the right person for the particular deposition, who makes the best witness, and who can most effectively express the corporation’s position.

Counsel for the corporation should be careful to adequately and repeatedly prepare the corporate representative prior to the deposition to make sure the individual is adequately prepared to testify as to matters reasonably known to the company. This is not the time to cut corners. Preparation sessions should include uncomfortable mock cross-examination, possibly outside witness training, videotaping of preparation sessions. Insurance companies should be aware that a 30(b)(6) deposition is, more than most depositions, a potential game-changer and can be a risk for a nuclear verdict.

The Reptile

As is well known by now, a major and dangerous aspect of preparing a Corporate 30(b)(6) involves recognizing and neutralizing a Reptile claim.

The Reptile Theory is a trial strategy used by plaintiffs, based on the 2009 book "Reptile," which relies on invoking fear and danger reactions in jurors. The theory argues that the defendant's conduct poses a danger to the jurors, their family, and the community and that a jury verdict is the only way to prevent that. The authors of the Reptile claim over $7 billion in settlements and verdicts and have created an entire industry of books, seminars, and publications. The theory appeals to the fear and emotional sense in jurors without actually calling out the "Golden Rule," which is almost universally disallowed in courts.

The Reptile seeks to convince jurors that no harm is acceptable, no risk is acceptable, and all risk can result in catastrophic results. Jurors are persuaded that defendants must eliminate all risk and follow all safety rules, no matter how unrealistic that may be. The community suffers because the danger imposed by the defendants is imminent and ubiquitous, and if the community is at risk, the jurors and their families are at risk.

There is solid neuroscience which supports the Reptile theory, focusing on the "subcortical" part of the brain, which consists of the brain stem and amygdala. These portions of the brain are primitive and respond and react to threats and fear, invoking the fight or flight response. Reactions are involuntary, automatic, and not reasoned. The Reptile theory seeks to tap into these primitive unevolved brain instincts.

The Reptile's unevolved primitive brain's corollary or opposite is the idea that jurors should rely upon their "primate" evolved brain. The primate brain relies upon the frontal lobe and frontal cortex anatomy, appealing to logical reasoning and cognitive judgments that we use in our civilized society. The anti-Reptile asks the juror not to be fooled by being scared or made afraid and to decide the case based upon civilized societal norms.

To counter the Reptile argument, preparation is paramount. There should be at a minimum two pre-deposition meetings to prepare the corporate representative. It is essential to show that the corporate records, especially those required by regulations, are well kept. Compliance with federal law and the pre-employment investigation and post-employment training and recurrent training of drivers is critical. Before deposition preparation, the corporate representatives' cross and direct examination must be fixed, and all of the pre- and post-accident documents have been generated.

The corporate representative should never admit open ended safety questions such as “no risk is acceptable”, “all harm must be eliminated”, and “violation of safety rules endangers the community.” The witness must force opposing counsel to be specific about the facts of this accident and not open ended generalizations. Plaintiff's counsel must be forced to define “safety” and of course the witness should never admit that trucks are “less safe”, that they are harder to maneuver, brake, steer, that they are dangerous, or that truck drivers are professionals like doctors or lawyers, and so forth.

The witness must keep bringing the focus of the deposition back to the facts of this accident. Instead of admitting that the actions of the driver and the company were inevitably unsafe, the witness should be prepared to distinguish between facts of the accident which are relevant as opposed to irrelevant facts.

Instead of open ended yes or no responses, the witness should be encouraged to respond "not necessarily" to open ended questions about safety.

All corporate deponents must be prepared on, and know, what was said in prior depositions. To the extent it is truthful and can be supported corporate witnesses should be consistent in their responses. Again, national discovery counsel or a specific in-house program regarding depositions should be considered.

In summary, the Reptile Theory is a powerful and effective technique used by plaintiffs that relies on invoking fear and danger reactions in jurors. While it has its controversies, there is solid neuroscience that supports the Reptile theory. To counter the Reptile argument, it is essential to show compliance with federal law and to have all pre- and post-accident documents ready. The primate brain appeals to logical reasoning and cognitive judgments that we use in our civilized society, and decision-making should be based on reason, not fear.

Key Takeaways

Although nothing can guarantee the elimination of dangerous deposition testimony or resulting high verdicts, the techniques described here will help the defense lawyer and corporate representative properly prepare for a 30(b)(6) deposition as well as how to recognize a Reptile claim and how to counter it. Here are the key takeaways:

1. The Reptile Theory is an effective and dangerous technique for increasing damages. Careful recognition of it and the physiology upon which it is based are crucial to proper corporate representative preparation.

2. The corporate policies, documents, and actions required by FMCSRs are key attack points for the Reptile. The corporate representative and defense counsel must be intimately familiar with them and how to best describe them in a deposition.

3. Corporate representatives must recognize key Reptile terminology and not fall into the trap of answering open ended questions about safety, danger, eliminating risk, and needlessly endangering the community.

4. Frequent and intense preparation is a key. Never should a defense lawyer scrimp on proper preparation, mock cross-examination, and intense document review. At least two to three deposition preparation sessions are crucial for any corporate representative.

5. A formal program, in-house or through national discovery counsel, should be considered to provide consistency of responses to paper discovery and deposition examination.



Looming Collisions

May 2023 • Source: Exigent

In many rear-end collisions involving a vehicle that is stopped or moving slowly in the lane of travel, it is common for the driver of the striking vehicle to say that they did not realize the lead vehicle was stopped or moving very slowly until it was too late to avoid the crash. Drivers in these situations ] likely experienced a phenomenon called “looming.” 

Human factors experts address the issue of looming in vehicle collision cases to determine whether the driver perceived and responded to the slower moving orstopped vehicle in a reasonable amount of time and whether the driver’s actions were a cause of the crash. Read the full article.


Litigation Funding – Mounting a Defense when Plaintiff is Funded

May 2023 • Source: Fraud Sniffr

The Venture Capital (VC) industry has built a financial model focused litigation funding for insurance claims, which is not good news for the insurance industry. Once VC builds and deploys a financial model, it runs across a diversified, anonymous portfolio that will generate profit based on the results of hundreds of thousands of cases, diversifying profitability risk for the VCs across the entire case portfolio.  Their profit model is based on extending claim resolution times with the goal of inflating the ultimate financial award for the claim.

A claimant with litigation funding can afford to extend their claim resolution time from a few weeks to months or even years because the funding source pays living expenses, doctor bills, and even surgery costs incurred while negotiating the award. This means a claim that would ordinarily resolve in 90 days for $2500 to $7500 now resolves three years later for $200,000 to $500,000.

With Venture Capitalists funding a claim, medical can be done anywhere, for any price, since the full medical bill can be black boarded and then negotiated later. Plaintiff Counsel no longer has to worry about the cost of his experts. And it should be noted that litigation funding is not considered a loan so none of the regulation that applies to lending applies to litigation funding.

While this kind of claim inflation across a few dozen claims wouldn’t spell trouble for a carrier, with VC funding litigation the industry can expect hundreds of thousands of claims to inflate in this way. It could be called murder by a thousand cuts.

Is there a way to stop litigation funding as an industry? 

Unfortunately, litigation funding is currently legal with the exception of a handful of states that only allow litigation loans and exclude win-contingent litigation funding. The best next step for insurance defense is to take advantage of innovative claims investigation tools that allow not only comprehensive investigation, but also data mining to locate that ‘needle in a haystack’ that can really impact the ultimate financial award.

The old timey “get a report from social media” and then “get a report from physical surveillance” and “Get medical records” happening in siloes is not a good enough solution for the tidalwave of litigation funded cases headed for insurance carriers. Our solution integrates all findings into a chronological data stream that can be updated on demand for the life of the claim, and includes keyword search, content filtering and the ability to create custom reports. This better system arms defense counsel with the data they need to be efficient in our soon-to-be-overwhelmed legal system and even provides data that could stop an out of control claim right at the mediation table.

New Mega Trending Searches

Fraud Sniffr has added a new tool that brings surveillance to a new level – we track crime rings that develop among clusters of families, friends or associates that may coordinate the filing of their lawsuits or learn from one another’s experiences in litigation funded lawsuits in our entire assignment database. This overlay software monitors all our clients to look for developing expertise among family members and associates.  The goal is to alert counsel as soon as possible to an organized litigation funding effort.

We are here to help. Learn more here


QuikData™ E-discovery Software Provides All-In-One Solution for LSP Data Solutions, LLC a National Litigation Support Services Provider Specializing in Hosted Document Review and Analysis Says QuikData will Help Improve Productivity and Lower Costs

May 2023 • Source: QuikData

E-discovery technology innovator QuikData, LLC on May 24, 2023 announced that LSP Data Solutions, LLC, a national provider of Litigation Support Services to corporate legal departments, law firms and government agencies, has selected QuikData™ e-discovery software as their primary platform to deliver high-quality and cost-effective legal technology services. QuikData, now in Version 5.4, will enable LSP to execute the entire spectrum of Electronic Discovery Reference Model (EDRM) components in one integrated and optimized E-discovery solution.

Founded in 2016, LSP Data Solutions serves legal clients across the U.S. and Canada. With offices in Washington D.C., Philadelphia, New York, Orlando, Columbia SC and Richmond VA, the company has established itself as a solutions leader, focusing on transparency and communication while producing tailored solutions and workflows that reduce client costs.

Using QuikData, LSP Data Solutions anticipates efficiencies to its unique business model. QuikData’s unique combination of simplicity and powerful functionality enables service providers to enhance productivity, lowering both costs and resource needs for litigation support providers, law firms and corporate legal departments. Featuring a familiar Outlook-style interface, QuikData can execute pre-processing, processing, analysis, review and production across its scalable architecture at speeds to handle any size matters efficiently. Furthermore, it offers a full suite of early case assessment capabilities and continues to add data analytics features to keep pace with the needs of sophisticated requirements.

"At LSP Data Solutions, we're continually seeking new products and technologies that improve performance and reduce costs for our clients. QuikData, due to its unique all-in-one E-discovery capability, was a product we felt compelled to investigate," said Robert Chuey, LSP’s Co-Founder and Managing Partner. "We found that QuikData delivered exceptional speed and excellent ease of use. Those factors, plus its ability to allow clients to handle certain tasks autonomously to increase efficiency, made our adoption decision a very easy one."

“QuikData is thrilled when an industry veteran, like LSP, chooses QuikData over other available e-discovery solutions for its combination of simplicity and functionality.” stated Matt Berry, QuikData CEO. "LSP prides itself on value creation for its clients, a position we've worked very hard to achieve with QuikData. We're very pleased by LSP’s choice of QuikData as a primary services platform and look forward to the benefits our product will provide for LSP’s clients."

"While most e-discovery providers focus exclusively on the multi-terabyte matters, QuikData’s uniquely ‘simple but powerful’ approach will allow us to offer the best technology and most customized solutions to clients and matters of all sizes.” added Shawn Huston, Co-Founder and Manager Partner. "The fact that the QuikData team previously built another premier E-discovery solution and successfully supported over 40 service providers and law firm license users world- wide gives us a lot of confidence in their team and our choice."

QuikData is now available for licensing to service providers, corporate legal departments and law firms. For more details on QuikData 5.4 or to schedule a demo, visit

About QuikData:

QuikData, LLC is a software development and data processing, review, and hosting company headquartered in Houston, Texas. Founded in 2017 by the same team that founded and sold the Viewpoint All-in-One e-discovery platform in 2012 to Xerox, the company has focused its software development and services efforts in the e-Discovery market. Its flagship software application, QuikData, covers the primary components of the Electronic Discovery Reference Model, bringing end-to-end simplicity and affordability to service providers, corporate legal departments, law firms, and OEMs. QuikData is available as a SaaS, stand-alone, or for multi- tenant environments. To learn more, visit

About LSP:

LSP is a full-service litigation support services firm headquartered in Washington D.C., with operations and employees in Pennsylvania, New York, Florida and South Carolina. Founded in 2016, LSP focuses on providing leading edge solutions to assist corporate counsel, law firms and government agencies with full life-cycle electronic discovery, digital forensic, and litigation technology consulting services. To learn more, Visit


Behavioral Compliance with Safety Signs and Labels: An Update on Warnings Research

May 2023 • Source: Exponent

Safety intervention efforts can involve attempts to influence how people use products or interact with their environment via signs and labels that convey safety information. A substantial body of research has investigated the questions of whether and how safety signs and labels can lead to changes in behavior and reductions in accidents and injuries. A recent review of the latest research indicates that a variety of methodologies have been used to study compliance with safety information. These methodological differences may help explain seemingly contradictory findings regarding the impact of warnings design aspects on behavioral compliance. Read the full article.

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