Proposed Amendment to F.R.C.P. 30(b)(6)

Proposed Amendment to F.R.C.P. 30(b)(6)

By:  Chad Lieberman, Esq.

In August of 2018 the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States released a preliminary draft an amendment to F.R.C.P. 30(b)(6).  As stated by the Committee, the goal of the amendment was to address concerns regarding overlong or ambiguously worded lists of matter for examination and inadequately prepared witnesses.  The proposed amendment is as follows:

In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination.  The named organization mush designated one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.  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.  The persons designated must testify about information known or reasonably available to the organization.  This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

The impact of this proposed amendment has been hotly debated.  Lawyers from both the plaintiffs’ bar and defense bar have submitted a plethora of written statements and testified before the Committee on January 4, 2019.   CLICK HERE to review copies of the submissions and transcripts of the hearing.  A secondary hearing has been scheduled to take place on February 8, 2019, in Washington D.C.   I have been scheduled to testify at that hearing and my general thoughts are below:

  1. Conferral in General

 I support the inclusion of a mandatory conferral within the proposed amendment.  In my experience, lawyers regularly confer about the scope and timing of a 30(b)(6) witness. The proposed comments from the committee regarding the conferral being iterative is merely a reflection of reality.  All of my prior conferrals have been iterative in nature and, more often than not, resolve the parties’ disputes.

  1. Conferral Regarding the Scope of the 30(b)(6) Notice

 I consider the “scope” of a 30(b)(6) notice to include both the quantitative and qualitative nature of a deposition notice.  The proposed amendment requires a conferral, which is a good step, but not far enough.  A simple presumptive limit on the number of topics would address most issues related to scope – much like the presumptive limits that currently exist for written discovery requests.  Rule 30(b)(6) already requires that the topics be identified with “reasonable particularity” and thus a presumptive limit of 15 topics would require the requesting party to narrow the scope of the deposition to the issues which are truly relevant.  Overly-broad requests will always occur, but a limitation will significantly focus the parties, narrow the issues, lessen expenses, streamline the disagreements and facilitate faster resolutions.  The rule could permit the presumptive limit be modified via stipulation of the parties or upon order of court – just as permitted under Rule 33.

  1. Procedure for Notice, Objection and Resolution

I believe the issues associated with 30(b)(6) depositions can be separated into two categories: (a) the scope of the deposition; and (b) the preparation of the witness.  Respectfully, the proposed amendment does not address or remedy either of these issues.

I believe the issues associated with 30(b)(6) depositions can be separated into two categories: (a) the scope of the deposition; and (b) the preparation of the witness.  Respectfully, the proposed amendment does not address or remedy either of these issues.

                    (a) Scope of the Deposition

Conferral on the scope of a 30(b)(6) deposition does not always resolve the parties’ dispute.  There currently exists no uniform framework for the notice, objection and resolution of issues related to the proposed scope of a 30(b)(6) deposition.  Lawyers and clients crave a framework in which to operate and an outline for that framework can be found within Rule 45.  It is perplexing that the notice and objection procedures of Rule 45 are applicable to a 30(b)(6) deposition noticed for a non-party but not for a party.  I often hear that judges despise discovery disputes – but so do lawyers.  Much of the frustration can be absolved by creating a simple procedure to handle the timing, objection and resolution of issues pertaining to the proposed scope of a 30(b)(6) deposition.

Rule 37 does not adequately address this issue for two reasons.  First, the language of Rule 37 is principally tailored to issues concerning written discovery responses and disclosure requirements.  Nothing within Rule 37 directly addresses disputes concerning the scope of a 30(b)(6) deposition.  Second, Rule 37 principally addresses past discovery violations.  A dispute about the scope of a 30(b)(6) notice concerns the nature of how a deposition may proceed in the future.  A typical motion for a protective order under Rule 37 is oftentimes impractical and inefficient.  With the lack of a unified procedure, many courts have adopted a variety of methods to address these issues.  The lack of uniformity results in a host of incongruent and inconsistent case law being reported across the country.

                    (b) Preparation of the Witness

This issue conceptually arises post-deposition.  I say “conceptually” because I have never encountered an issue regarding the adequacy of a 30(b)(6) witness’s preparation.  I do not believe any amendment can eliminate bad lawyering or a rogue witness.  The rule already requires the responding party to produce a witness with the ability to testify “about information known or reasonably available to the organization.”  A party’s failure to do so is subjective and best left for the courts to analyze.   Logistically, such an issue would amount to a past discovery abuse and thus fall more squarely under Rule 37.

  1. Identity of the Witness

 The identity of a 30(b)(6) witness has never been an issue in my career.  Sometimes the name is disclosed and sometimes not.  I find the identity of the corporate witness to be irrelevant because the deponent is the company, not the human speaking for the company.  Moreover, I fail to see how disclosure of the witness’s identity does anything to facilitate the process or resolve any pre-deposition disputes.

Of concern to me, and many others who have testified, is the language of the proposed amendment.  A mandatory “conferral” implies a give-and-take and thus has given rise to the concern that the proposed language is vague and implicitly chips away at the longstanding right of the responding party to choose unilaterally its witness.  Likewise, the required “identity” of the witness is undefined and invites disputes and motion practice over what needs to be disclosed at the proposed conferral stage.

I echo the testimony of others regarding the unnecessary nature of the proposed amendment.  Respectfully, the proposed amendment does not solve a problem, but rather creates a nebulous conferral requirement likely to result in additional disputes, protracted litigation and increased costs.