[co-author: Julie Garabedian]
A pending amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure obligates parties to “meet and confer” regarding subject matters for examination. Adopted and submitted to Congress by the U.S. Supreme Court in April, this good faith conferral serves to clarify matters for examination and facilitates collaborative efforts. If Congress does not reject, modify, or defer the amendment by December 1, it will become effective immediately.
Rule 30(b)(6) governs oral depositions of party and nonparty organizations. As noted by the Advisory Committee on Civil Rules, the rule’s original purpose was to create an even playing field so that organizations would not have an advantage during the discovery process. It was not created as a method to squeeze organizations dry of every last piece of information. As it stands, the rule requires:
- The party seeking to take the deposition name the deponent and describe with “reasonable particularity” the matters for examination.
- The deponent-organization designate an individual to testify on its behalf as to those matters.
For years the Committee fielded problems surrounding Rule 30(b)(6), specifically concerning vaguely drafted notices and inadequately prepared witnesses. In 2016, the Committee created a Rule 30(b)(6) subcommittee to tackle these exact problems. Two years later, in August 2018, the Committee published for comment a preliminary proposed amendment. The amendment provided that:
“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.”
However, this proposal received push back from several organizations. In February 2019, more than 100 organizations joined in a letter to the Committee in opposition of the preliminary proposed amendment. Specifically, there was concern that the proposed changes would create new time-consuming and costly discovery disputes, leading to increased motion practice. Equally as important were concerns that the mandate did not actually provide a solution to the rule’s present problems. After taking into consideration all comments and concerns, the Committee created a new amendment (the now pending amendment to Rule 30(b)(6)), which focuses on the meet and confer clause regarding deposition topics:
“Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith (emphasis added) 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.”
The goal of this meet and confer obligation is for opposing parties to collaborate. Prior to deposition parties should obtain a further understanding of the intended discussion topics. As a result, witnesses will likely be better prepared, which could ultimately lead to a decrease in deposition time.
Often, Rule 30(b)(6) notices contain broad statements of topics for deposition. They may also request that the witness have knowledge of several years of information. For a deponent, these vague notices make it exceedingly difficult to comprehend what knowledge is required prior to being deposed. The pending amendment to Rule 30(b)(6) will alleviate some of these problems by hopefully narrowing topics to a specific period and clearly outlining the scope of the issue. In return, this should limit motion practice on discovery disputes – benefiting not only the parties, but also the court. What meet and confer will look like in practice is unknown; however, this amendment could instill a best practice among lawyers to talk and hash out ambiguities prior to a deposition.