Update – Rule 30(b)(6) Officially Amended with a Modified Meet and Confer Requirement, But Practical Challenges Remain

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Previously, I wrote about a proposed amendment to Federal Rule of Civil Procedure 30(b)(6) that would create a meet and confer requirement among counsel concerning the topics for examining a corporate representative in a deposition and how that requirement potentially could impact business organizations.  Rule 30(b)(6) officially was amended effective December 1, 2020, with certain modifications to the language that initially was proposed by The Advisory Committee on the Federal Rules of Civil Procedure.

My previous post described the language of the proposed amendment as including 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.”  (Emphasis added).  Business organizations, however, took issue with the italicized language in the initial proposed amendment during the notice and comment period.  In February 2019, more than 100 organizations joined in a letter to The Advisory Committee opposing the initial proposed amendment.  Specifically, the organizations that the amendment would impact were concerned that the proposed change would create new time-consuming and costly discovery disputes, leading to increased motion practice.  They also expressed concern that the proposed amendment would not actually resolve the issues generated by the prior version of Rule 30(b)(6), such as vague and overbroad deposition notices and unprepared witnesses.

The Advisory Committee considered these comments and concerns and generated a new amendment, which became effective on December 1, 2020.  The amendment now reads: “[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 matters for examination.”  (Emphasis added).  The revised language streamlines the amendment to Rule 30(b)(6) to focus on the meet and confer requirement among counsel as opposed to the number and description of the matters for examination and the identity of the witness(es).  Removing the requirement that counsel confer about the identity of the witness(es) decreases the likelihood that the meet and confer requirement will interfere with an organization’s ability to select the proper individual(s) to provide testimony on behalf of the organization.

The meet and confer requirement, however, still poses practical challenges for business organizations and their counsel despite the revised language.  The goal of the meet and confer requirement is for the parties to collaborate in advance of a Rule 30(b)(6) deposition to discuss certain issues concerning the examination of a corporate representative to reduce discovery disputes and conserve judicial resources associated with discovery conferences and motion practice.  It remains unclear, however, exactly what the parties are required to discuss before the Rule 30(b)(6) deposition.  Requiring the parties to confer “about the matters for examination” is broad and open-ended, and there still is the potential for discovery disputes requiring court intervention following the attorney conference if the parties have conflicting views of the meet and confer requirement and the topics for examination.

Now that Rule 30(b)(6) officially has been amended and the meet and confer requirement has been installed, business organizations need to be aware of this change and its potential impact.  Not only do organizations need to understand that their counsel must participate in a meet and confer conference before a Rule 30(b)(6) deposition, they also must be prepared to address certain issues related to the deposition before selecting and preparing a witness for examination.  The consequences of the amendment to Rule 30(b)(6) remain to be seen, but it certainly poses new considerations for business organizations and their counsel as litigation progresses through discovery.

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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