Lawyers seeking to depose corporate representatives must meet and confer before the deposition beginning December 1, 2020, when an amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure goes into effect. ABA Section of Litigation leaders explain that while this change codifies existing best practice, it may have unintended effect of increasing discovery motions.
The Parameters of the New Meet and Confer Requirement
Rule 30(b)(6) governs the process for depositions of corporate representatives. It provides that a party looking for the person most knowledgeable to testify on behalf of an organization is to issue a notice to the organization “describ[ing] with reasonable particularity the matters for examination.” In turn, the responding party is to designate one or more representatives “to testify on its behalf,” “about information known or reasonably available to the organization.”
While those requirements remain unchanged, the amendment now also mandates that “before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters of examination.” Additionally, for parties seeking the deposition testimony of an organization that is not a party to the case, the subpoena “must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify.”
Significantly, the parties are not required to reach agreement on the matters of examination, and are only required to confer in good faith, according to the Committee Note accompanying the amendment. The note states that the meet and confer requirement was designed to address practitioner complaints of “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses,” as well as to “[facilitate] collaborative efforts to achieve the proportionality goals of the 2015 amendments to Rule 1 and 26(b)(1).”
To that end, the note explains that “[c]andid exchanges about the purposes of the deposition and the organization’s information structure may clarify and focus the matters for examination, and enable the organization to designate and to prepare an appropriate witness or witnesses, thereby avoiding later disagreements.” The note also suggests that parties discuss the logistics of the deposition “to facilitate… efficiency and productivity.” Further, though the parties are not required to meet and confer until after the deposition notice or subpoena has been served, the note’s drafters recommend beginning those discussions much earlier—even as early as the Rule 26(f) conference. Conferring preservice “may be more productive if the serving party provides a draft of the proposed list of matters for examination, which may then be refined as the parties confer,” according to the note.
Codifying Best Practices May Have Unintended Consequences
“Depositions are time consuming, expensive, and can get messy,” explains William E. Weinberger, Los Angeles, CA, cochair of the Section of Litigation’s Corporate Counsel Committee. “The amendment to the rule could make depositions more productive and less contentious by tightening up the description on the matters the deposition will cover. Experienced counsel have been doing this already, and making it explicit for those who are not is a good thing,” states Weinberger.
Other Section leaders agree. “The amendment allows for issues of proportionality or confidentiality to be addressed before the parties or witnesses sit in a deposition room trying to reach a judge who may or may not be available,” adds Sherilyn Pastor, Newark, NJ, cochair of the Section’s Trial Evidence Committee.
Some Section leaders warn that the amendment may cause unforeseen issues, including an increase in motion practice. The amendment “is intended to codify what should be best practices—that is to allow the serving attorney and corporate attorney to confer and discuss topics, and to discuss who may be the best witness to respond to the questions, although adding the language may create more problems than how the rule is used practically,” opines John S. Austin, Raleigh, NC, cochair of the Section’s Trial Practice Committee.
“If both parties act in good faith, this amendment can make corporate representative depositions less contentious,” offers Sean O’D. Bosack, Milwaukee, WI, cochair of the Section’s Corporate Counsel Committee. “On the flip side, motion practice may arise where attorneys debate what constitutes good faith,” he concludes.
Katherine G. Vazquez is a contributing editor for Litigation News.
Hashtags: #Depositions #civilpracticeandprocedure
- Joyce C. Wang, Demetrius Lambrinos, and Meredith L. Murphy, “Speak for Yourself: The 30(b)(6) Deposition,” The Brief (Sep. 19, 2019).
- Andrew M. Toft, “Tips for Taking Rule 30(b)(6) Depositions of Parties or Nonparties,” Pretrial Practice & Discovery (Jan. 31, 2020).
- Michelle Molinaro Burke, “Making Sure the Correct 30(b)(6) Witness Is Produced in Response to Your Notice,” Young Advocates (Jan. 31, 2018).
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