Episode 175: Lessons from the Front Lines: "We Outsourced It" - Countering the 30(b)(6) Ignorance Defense

What to do when an organization resists your efforts to conduct a Fed. R. Civ. P. 30(b)(6) deposition by claiming it not only doesn't currently have information on the topics, but that it never had any? As Jim urges you to do in this episode, take the deposition and force the entity's designee to say it entirely lacks knowledge on the topics. Why? Because the absence of knowledge is itself a discoverable fact. And showing that an entity took no steps to become informed on critical matters can be powerful proof of indifference, negligence, or omission. Don't miss this one!SHOW NOTES:Order Overruling Defendant’s Objection To Magistrate Judge Vatti’s Order Dated February 5, 2026, LaBroad v. Costco Wholesale Corporation, et al., Case No. 3:24-cv-1102 (KAD), 2026 WL 1746249 (ruling that magistrate judge correctly determined “that the purported nonexistence of any materials regarding [defendant’s training on parking lot safety] is, itself, a relevant fact on which [Plaintiff] is entitled to develop evidence via Rule 30(b)(6)”)Hepco Data LLC v. Hepco Medical LLC, 2020 WL 1870320, No. 2D19-2134 (2d DCA April 15, 2020) (certiorari granted, quashing order blocking depositions, because petitioners established through filed proffer that depositions were relevant; held, “litigants would never be able to take a nonparty deposition if all the non-party had to do to get out of it is to say that he or she had nothing to say; representations of opponent that discovery isn’t relevant need not be relied on)John v. Core Brace, LLC 2021 WL 329460, No. 4:20-CV-00071-BLW (D. Idaho Jan. 29, 2021) (citing Apple. Inc., 282 F.R.D. at 263 for proposition that “A claimed lack of knowledge, by itself, is insufficient to preclude a deposition,” omitting additional citations)United States of America v. Newman, 2021 WL 1026019, No. 19-1868 (RJL) ( D. D. C. Mar. 17, 2021) (sarcastically noting government’s proposed stipulation that certain evidence had not moved from its location during relevant time was an unconvincing “attempt to stipulate itself out of [having to respond to] discovery”)Klorczyk v. Sears, Roebuck & Co., No. 3:13-CV-257 (HBF), 2015 WL 1600299, at *4-5 (D. Conn. Apr. 9, 2015) (holding that a "we-don't-know" response can be binding on the corporation at trial and prohibit it from offering evidence on those points; if a designee genuinely lacks knowledge, the designee must still be prepared to testify concerning the corporation's efforts to obtain the information and why it lacks sufficient knowledge)QBE Insurance Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 690 (S.D. Fla. 2012) (establishing that the lack of knowledge answer is itself an answer which will bind the corporation at trial; lack of knowledge is insufficient grounds to preclude a Rule 30(b)(6) deposition; “The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush. Calzaturficio, 201 F.R.D. at 38; Wilson, 228 F.R.D. at 531; Taylor, 166 F.R.D. at 363 (rule prevents “sandbagging” and prevents corporation from making a “half-hearted inquiry before the deposition but a thorough and vigorous one before the trial”).