Updated: Sep 15, 2021
Ah, ye ole 30(b)(6) deposition -- the depositions of the corporate reps. While the concept and need for a means of determining the positions of an organization party on matters related and potentially relevant to a litigated dispute is worthy, it has devolved into something synonymous with “a miring discovery dispute.” A recent amendment to Rule 30(b)(6) is aimed at helping the parties work through and perhaps avoid previously existing stumbling blocks.
Effective December 1, 2020, the U.S. Supreme Court approved the first-ever substantive amendment to Federal Rule of Civil Procedure 30(b)(6).
The amendment is intended to address years of complaints by lawyers on both sides of the bar and to “facilitate collaborative efforts to achieve the proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1).”
The amended Rule, with new portions underlined, provides:
(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
The rule already requires the noticing party to set out with reasonable particularity the matters for examination. The amendments add a requirement that the parties confer about these “matters for examination,” but they do not require the parties to confer about who is going to testify.
They also do not require the parties to confer about the number and description of matters for examination, although this could certainly be helpful. But they do require and allow an organization to proactively deal with opposing counsel to pare down any “overlong or ambiguously worded lists of matters for examination” and to determine opposing counsel’s objectives in order to designate the appropriate witness who is prepared to address the topics in the notice. See The U.S. Supreme Court Congressional Rules Package 2020, available at https://www.uscourts.gov/rules-policies/archives/packages-submitted/congressional-rules-package-2020.
So, how best to comply with these new amendments?
Update your notice forms to include language advising nonparty organizations of their duty to confer with the serving party.
Schedule a conference with the organization before the notice is issued or immediately after.
If you are the noticing attorney, make some record of your attempt to schedule, such as by doing it in writing or via email
Make detailed notes of the discussion at the conference on the matters for examination
If an agreement is reached, confirm it in writing or via email
If an agreement is not reached, confirm the discussion and the details of what is agreed upon and what is not