Proposed Amendments to Rule 30(b)(6) May Create Problematic Consequences for Business Organizations

Butler Snow LLP

Butler Snow LLP

Federal Rule of Civil Procedure 30(b)(6) is a critical part of litigation involving corporations and other business entities.  Rule 30(b)(6) allows a litigant seeking information from an organization to serve a notice of deposition or subpoena requiring the organization to designate a representative to testify regarding the organization’s knowledge on discoverable issues.  The Advisory Committee on the Federal Rules of Civil Procedure, however, has proposed changes to Rule 30(b)(6) that have the potential to affect the process of taking discovery from a corporate litigant.

Under the current version of Rule 30(b)(6), the party seeking to depose the organization serves a notice or subpoena identifying topics for the deposition. The organization then identifies an individual (or individuals) of its own choosing to testify regarding the topics provided by the party taking the deposition, subject to any objections regarding the topics identified. The testimony of the individual(s) then becomes the testimony of the organization regarding those particular topics.

The proposed amendments impact the discretion an organization currently has in choosing the individual(s) that will testify at a 30(b)(6) deposition. Indeed, the proposed amendments include a requirement that: “[b]efore 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.”  If ultimately approved by the U.S. Supreme Court, the proposed amendments would become effective on December 1, 2020.

If adopted, the new rule would require the parties to confer before the deposition about the topics and the individual(s) that will provide testimony.  The concern is that the testimony of those individual(s) ultimately binds the organization on certain issues, and the meet and confer requirement may interfere with an organization’s ability to select individual(s) to provide testimony that is likely to have a significant impact on the litigation.  Furthermore, the requirement that the parties confer about the number and description of the topics for deposition does not provide specific guidance as to what the parties are required to discuss before the 30(b)(6) deposition.  The stated goal of the proposed amendments is to streamline the discovery process in litigation involving business organizations, but these new requirements could unwittingly spawn even more discovery disputes over the deposition topics and the individual(s) best suited to testify on those topics.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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