In 2019, I wrote about proposed changes to Federal Rule of Civil Procedure 30(b)(6) that would impose ongoing meet-and-confer obligations in connection with corporate designee depositions. After years of deliberation, the adopted amendment now requires opposing parties “to confer in good faith about the matters for examination.” The rule change means counsels’ communications are more crucial than before because federal courts will require the parties to engage in exchanges on examination topics before the corporate designee deposition occurs. This article discusses the 2020 amendment to the rule and suggests tips for anticipating and resolving potential disputes.
In 2016, the Rules Advisory Committee convened to propose an amendment to Rule 30(b)(6) designed to decrease disputes in court over the list of topics for examination, suitability, and preparedness of the designated representative. The adopted change now states: “[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.” The amendment targets problems with topic lists, particularly “overlong or ambiguously worded lists of matters for examination.”
To solve the problem, the committee encourages practitioners to engage in “[c]andid exchanges about the purposes of the deposition and the organization’s information structure [that] 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 key objective of the 2020 amendment to Rule 30(b)(6) is to “facilitate collaborative efforts to achieve the proportionality goals” expressed in Rules 1 and 26(b)(1). As a result, courts will now require the parties to secure the “just, speedy, and inexpensive determination of every action and proceeding” and obtain only as much discovery as is proportional to the needs of the case.
While the amended rule only instructs parties to confer concerning the matters of examination, there are several best practices litigants should consider.
Include Rule 30(b)(6) in your pretrial conference and discovery plan. The committee suggests referencing “Rule 30(b)(6) depositions in the discovery plan submitted to the court under Rule 26(f)(3) and in matters considered at a pretrial conference under Rule 16.” Engage in conversations regarding the scope of the Rule 30(b)(6) deposition early in the case, including a limitation of the topics and a process for objecting to the notice. Counsel should memorialize their agreement in the case management order or discovery plan.
Draft topics with reasonable particularity. Practitioners should avoid phrases such as “including but not limited to” since it fails to delineate a discernable category and diminishes the opposing party’s ability to designate a suitable and knowledgeable witness.
Serve written objections to proposed topics. Craft objections to identify issues to discuss that are also designed to achieve a reasonable and good-faith compromise. Even if the objections are not resolved, consider moving forward with the deposition in the event the deponent may disclose sufficient information to resolve the dispute.
Meet and confer on the topics the deposing party intends to discover. Practitioners should explain why each side believes the matters of examination are meritorious or not while also weighing the proportionality requirement of Rule 26. Focus on areas of likely dispute to ensure that any issues were fully vetted before seeking court intervention. Also, keep a written record or summary of the exchanges in the conference and consider memorializing them with opposing counsel for reference in a future potential discovery motion.
Consider discussing the designee witness. While litigants have greater leeway not to confer over the witness identification (such a requirement was rejected in the final amendment), future problems may be avoided if practitioners discuss the designee before the deposition. If addressed in advance, parties may avoid a sanction motion if a post-deposition dispute arises over whether the witness was indeed knowledgeable on each of the designated topics.
Use discovery motions as a last resort. Conducting a candid, good-faith conference is intended to narrow the issues and, if insurmountable, present them to the court on motions to compel, to quash, or for a protective order. In the event of either a pre- or post-deposition motion, the moving party must certify compliance with the meet-and-confer criteria or risk a summary denial. A court may not rule on a motion to compel under the amended rule if a party failed to satisfy the meet-and-confer requirements.
The rule change ultimately shifts more responsibility to practitioners rather than the courts to resolve party disputes. The success of the meet-and-confer requirement will depend, therefore, on meaningful attorney exchanges and—if they fail—the court’s enforcement of the new provisions of the rule.
