Proposed Amendments to Federal Rule of Civil Procedure 30(B)(6) Introduce a Meet-and-Confer Obligation in Advance of Corporate Depositions

Introduction

Unless Congress intervenes, the first-ever substantive amendment to Federal Rule of Civil Procedure 30(b)(6) will take effect on 1 December 2020.¹ Governing oral depositions of party and nonparty organizations, Rule 30(b)(6)’s original purpose, when it was introduced in 1970, was to ensure a fair and even playing field so organizations would not receive special advantages during the discovery process.² To achieve this purpose, the Rule, in its current form, has two requirements: (1) from the party seeking to take the deposition, a notice containing a description with “reasonable particularity” of the matters for examination; and (2) from the organization being deposed, the designation of one or more persons to testify on the organization’s behalf as to those matters.³

For years, problematic practices by lawyers on both sides, such as poorly drafted notices and inadequately prepared witnesses, have created a unique challenge to the Advisory Committee on Civil Rules (“Advisory Committee”). Unable to find adequate solutions, the Advisory Committee finally convened a Rule 30(b)(6) Subcommittee in 2016 to tackle the problem. Two years later, through that Subcommittee’s exhaustive efforts, a proposed amendment (the “Preliminary Proposed Amendment”) was published for public comment.⁴

The Preliminary Proposed Amendment and Concerns

The Preliminary Proposed Amendment, published in August 2018, provided, in pertinent part:

Before or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify. A subpoena must advise a nonparty organization of its duty to make this designation and to confer with the serving party.⁵

While plaintiffs’ bars generally supported the Preliminary Proposed Amendment, stating that the proposal struck the right balance,⁶ there was considerable push back from organizations.

In a letter to the Advisory Committee dated 5 February 2019, more than 100 companies banded together in opposition, arguing that the conferral mandate, as written, would not only “provoke time-consuming and costly new discovery disputes” as a result of the serving party’s new ability and right to influence the choice of the witness(es),⁷ but it would also spawn additional motion practice as a result of vague and undefined terms and phrases like “good faith” and “continuing as necessary.”⁸ The primary concerns were that the amendment would permit serving parties to request multiple witnesses⁹ or c-suite executives for purposes of harassment,¹⁰ or even devise ways to block unfavorable witnesses.

Equally disconcerting to the signatory companies was the observation that the Preliminary Proposed Amendment “offer[ed] no solutions to the pressing major failings of the current Rule 30(b)(6) deposition process.” Rather than a conferral mandate, the companies submitted that it would have been better for the proposal to address Rule 30(b)(6)’s major gaps, including how to count the number of hours allowed for a deposition with multiple designated witnesses and what should happen in instances where an organization no longer has relevant knowledge due to the passage of time or other reasons.¹¹

New Proposed Amendment Ultimately Approved by the Advisory Committee

Taking into consideration all of the comments received during the official comment period, especially those that robustly opposed the requirement to confer about the “number and description of matters for examination” and the “identity of each witness,” the Advisory Committee settled on a more modest version of the amendment (the “New Proposed Amendment’):

Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify.¹²

As the Committee on Rules of Practice and Procedure stated in its Memorandum to the Supreme Court of the United States on 23 October 2019, the scaled-back New Proposed Amendment “codifies a best practice and practitioners across the bar support it.”¹³ To “confer in good faith” means just that–nothing in the Rule requires the parties to actually reach any agreement.¹⁴

Issues the New Proposed Amendment Seeks to Resolve

Primarily, the New Proposed Amendment aims to respond to concerns such as “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.”¹⁵ By resolving these issues, it “facilitates collaborative efforts,” which are important in achieving proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1).¹⁶

Secondarily, “candid exchanges” with respect to “purposes of the deposition and the organization’s information structure” may clarify matters for examination, which will give organizations specific guidance on designating and preparing witnesses.¹⁷ These discussions, as well as others pertaining to procedural issues like the timing and location of the deposition, seek to minimize disputes down the road.

As the Honorable David G. Campbell, Chairman for the Committee on Rules of Practice and Procedure, commented, getting the parties to talk before the deposition will help resolve some of the most frequent complaints lawyers have about the deposition process (e.g., overly broad topics and inadequately prepared witnesses), as a result of lack of communication.¹⁸

Timeline and Process for Approval

After the close of the official comment period on 15 February 2019,¹⁹ and considering all feedback received, the Advisory Committee submitted the New Proposed Amendment to the Committee on Rules of Practice and Procedure.²⁰ The Judicial Conference of the United States approved the New Proposed Amendment on 17 September 2019, and transmitted it to Scott Harris, Clerk of the Supreme Court of the United States, on 23 October 2019.²¹ By letter dated 27 April 2020, the Supreme Court submitted the New Proposed Amendment to Nancy Pelosi, Speaker of the House of Representatives, and Michael Pence, Vice President.²²

Congress, which is the last stop in the review process, now has several months to reject, modify, or defer the New Proposed Amendment.²³ Absent any such action, the New Proposed Amendment will become effective 1 December 2020.

Conclusion

Rule 30(b)(6) depositions are significant to organizations and even the slightest modifications to the rule and process can have a significant impact. For example, counsel for the serving party, in documenting the parties’ meet and confers, may seek to file a motion to compel if an organization’s witness later states that he or she is not prepared for a topic that the parties previously clearly discussed. Counsel for organizations, therefore, should be prepared for strategies like these. Counsel, however, should also be able to use the new required meet-and-confer obligation to their advantage to further understand the specific topics of the deposition testimony, better prepare witnesses, and limit the number of hours witnesses are made available, if more than one witness is required.