Legal Alerts

Only Fix What’s Broke: A Guide to the Proposed 2020 Amendments to FRCP 30(b)(6)

Newark, N.J. (May 28, 2020) - On October 23, 2019, the Judicial Conference Advisory Committee on Civil Rules proposed amendments to Federal Rule of Civil Procedure (FRCP) 30(b)(6) that will increase the amount of work required to get a corporate designee to speak on behalf of a company. The submission of the proposed amendments to the United States Supreme Court represented the best of our process of rulemaking: the abandonment of ideas that received great criticism, and steadfast movement towards the goal of making a better rule that adopts best practices from the front lines.

The Process

In August 2018, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States issued a request for comment on proposed amendments to certain Appellate and Bankruptcy rules, Federal Rule of Evidence (FRE) 404, and FRCP 30, more specifically, Rule 30(b)(6). The response to the request as it related to Rule 30(b)(6) was, in a word, massive. The Committee reported that it received 1,780 written comments between August 2018 and February 2019. In April 2019, two public forums were held addressing the proposed amendments, with over 80 witnesses testifying (including the author of this alert).

The witness testimony at the two public forums came from both the attorneys issuing the deposition subpoenas and the organizations producing the witnesses, as well as from both the public and private sectors. The concerns of the witnesses, described below in greater detail, were clearly taken to heart by the Committee. The revised version of the proposed amendments, which were developed following witness testimony, eliminated many of the proposed changes that were most controversial. Make no mistake: the proposed amendments are designed to fix the most glaring issues that face both the counsel issuing the subpoenas and the organization producing the witnesses, while still maintaining the autonomy of both parties.

Proposed Amendments

A deposition notice pursuant to Rule 30(b)(6) is effectively a notice to take the deposition of a corporate entity. The “legal person” that is the corporate entity can obviously not speak for itself, and so the Rules require the organization, through its counsel, to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” FRCP 30(b)(6). The organization may set out those matters to which each witness will testify. The Rule requires that the notice or subpoena “describe with reasonable particularity the matters for examination.” Id.

The proposed amendment to Rule 30(b)(6), which is expected to be adopted, requires the issuing party and the organization to “confer in good faith about the matters for examination.” Thus, the major change to the Rule would be the addition of a requirement to meet and confer regarding the “matters for examination.” Complementary language was added to make clear that (1) the duty to confer exists when the organization is not a named entity and the deposition is required by subpoena, and (2) notice of that duty must be included in the subpoena itself.

The Committee Note that would accompany the change to Rule 30(b)(6) provides guidance on best practices as they relate to Rule 30 depositions This guidance includes a robust discussion of the purpose of the deposition and matters for examination, as well as a recommendation to raise the issues or concerns during the Rule 16 Conference and in the Rule 26 Disclosures to avoid problems down the road. Further, the Note clarifies that the parties are required to confer in good faith, which does not necessarily require agreement, and that approaching the court to “seek guidance” short of filing a motion for a protective order is advised. Finally, the Note confirms that a deposition upon written questions pursuant to FRCP 31 does not carry the same requirements.

Controversy in the Beginning

One of the linchpins of Rule 30(b)(6) is that it is both the duty and the prerogative of the organization to choose the witness that will testify for the organization. The reason for this is clear: the witness produced pursuant to a Rule 30(b)(6) notice is a mouthpiece for the organization. Generally speaking, the testimony that should be elicited from the witness is what the organization knew, when it knew it, and what steps it took as a result of that knowledge. The witness need not hold the knowledge personally; indeed, the Rule requires only that the witness or witnesses determine the answers to the best of their ability to respond to the designated matters for examination. The identity of the witness, historically, has been largely irrelevant, so long as he or she could satisfy the requirements of the Rule.

It is not surprising, therefore, that the reaction to the proposed amendment requiring the organization to meet and confer “as to the identity of the witnesses” was met with significant objection. The Committee’s thought process was in the right place on the proposal. Knowing the identity of the witness would allow issuing counsel to better prepare for the deposition, thereby making the deposition shorter and more directed. Nevertheless, the pitfalls were identified in comments and testimony.

It was noted that in the greatest percentage of cases, the amended process would go forward without a hitch. After all, in most cases, the issuing attorney does not know the players and could not speak to who the correct person is to speak for the corporation. Not so, however, in serial or class litigation, where a firm or group of firms file consistently against a particular organization. Likewise, an attorney might want to depose a more public face of the company, rather than a “managing agent” who would be chosen by the organization. An unscrupulous attorney might perform social media or other background searches to make the deposition about the witness, not the organization.

From the issuing side perspective, there was objection to including the “number and description” of the matters for examination as part of the meet and confer process. Like the inclusion of the identity of the witnesses, the objections mainly centered around the autonomy of counsel issuing the notice or subpoena to identify those matters that should be discussed. Moreover, the comments revealed questions about how effective the meet and confer process would be in its stated goal- to shorten and direct the examination. After all, if faced with a future ruling that a finite number of categories should be used, an issuing party is simply more likely to create broad and vague categories in order to preserve the ability to ask everything that is needed.

Finally, the meet and confer process was designated to “continue as necessary” without any time constraints between the end of that process and the date of the deposition. The comments were fairly uniform in the belief that language in the Note that “confer” did not mean “agree” would be ineffective.

The Amended Rule and What to Expect

The Committee should be applauded in its ability to listen to its stakeholders and revise its proposal accordingly. In the end, the changes will promote the laudable goals of shortening and redefining corporate depositions through the collaborative efforts of counsel. They also reinforce the notion that the 30(b)(6) deposition is the opportunity for the issuing party to speak to the organization and to confirm and preserve testimony for trial. Specific witnesses remain available through noticing depositions pursuant to 30(b)(1), and the defenses to such a notice (apex, irrelevance, duplication) remain intact.

The proposed amendments were originally slated for an effective date of December 1, 2020, if they were approved. With the hard stop being placed on courts all over the country over the past months, it is difficult to determine whether this effective date is still realistic.

Assuming that the proposed amendments are implemented, it will be required for the parties “either before or just after the notice of subpoena is served” to meet and confer regarding the matters for examination. The Committee Note suggests that, if the parties intend to meet and confer before the issuance of the Notice, a draft list of matters for examination should be circulated for discussion. Frankly, for those who practice regularly in federal court, particularly those of us who routinely practice in foreign jurisdictions, this is already common practice.

In a typical case, the attorney issuing the subpoena wants the best person to provide the information needed to proceed with discovery and trial. Similarly, the organization’s attorney wants the correct witness seated so that only one deposition need be taken on the topics for which that witness is presented. It thus behooves both sides to confer on the topics so that those aligned goals can be met. Amending the rule simply mandates what is already best practice for those who are either inexperienced with the process or unwilling to act in accordance with the spirit of Rule 1, Rule 11, and Rule 30.

For more information on this topic, contact the author of this alert. Visit our website to learn more about our National Trial Practice.

Author:

Thomas Regan, Partner

Related Practices


Related Attorneys

Find an Attorney

Each of the firm's offices include partners, associates and a professional staff dedicated to meeting the challenge of providing the firm's clients with extraordinary service.