Federal Rule of Civil Procedure 30(b)(6) has been a fundamental rule in litigation involving organizations since it was adopted almost 50 years ago in 1970. Rule 30(b)(6) allows a litigant seeking information from an organization (party or non-party) to serve a notice of deposition or subpoena requiring the organization to designate a representative to testify regarding the organization’s knowledge on discoverable issues. The Judicial Conference Advisory Committee on Civil Rules is now considering the first significant changes to the rule since its creation. This client alert provides an overview of the proposed amendments to the rule and comments (reflecting criticism and support) submitted by the plaintiff and defense side regarding the amendments.
Background Regarding the Proposed Amendments
As Rule 30(b)(6) is currently written, the party seeking to depose the organization serves a notice or subpoena identifying topics for the deposition. It is then in the organization’s discretion as to who it identifies to testify regarding the topics (subject to possible objections during or after the deposition). The testimony of the individual (or individuals) binds the organization in terms of what it knows about the topics.
The proposed changes to the rule include 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.”1 In other words, the parties would be required to confer prior to the deposition regarding the topics and specific people to testify on each topic. Under the current rule, while conferences between the parties regarding the proposed topics are fairly common, the identity of the representatives generally is not discussed. The Civil Rules Advisory Committee, which has been more focused over the last couple of years on ways to improve the Rule 30(b)(6) deposition process, said the amendments are meant to address concerns regarding, among other issues, overlong or ambiguously worded lists of topics for examination and inadequately prepared witnesses, both of which can needlessly prolong the discovery process.2 Given Rule 30(b)(6)’s central role in litigation involving organizations, the proposed amendments received great interest on multiple fronts.
The Advisory Committee conducted two hearings early this year regarding the proposed amendments, which included testimony by 25 witnesses initially, and 55 witnesses for the final hearing. The comment period for the amendments recently closed on February 15, 2019. More than 1,300 comments were submitted. While many have expressed support for the proposed amendments, others, particularly on the defense side, have voiced legitimate concerns about the practical effect of the amendments.
Comments from the Defense Side
The majority of the comments regarding the amendments appear to have come from the defense side, which typically is in the position of defending the organization. For instance, more than 100 organizations (including Ford, Microsoft, and Comcast) submitted a joint public comment letter in February objecting to the new language.
Organizations and defense counsel primarily take issue with the requirement to confer with opposing counsel prior to the deposition regarding who they plan to identify as the Rule 30(b)(6) witnesses. Ford stated that the proposed rule changes “would substantially interfere with an organization’s existing right to identify its own witnesses, thereby giving rise to a whole new category of discovery abuses and disputes.”3 The Product Liability Advisory Council (PLAC) similarly objected, pointing out that the current case law on selection of the witness is strong, and as the witness speaks for the corporation, the corporation alone should be selecting the person to testify on its behalf, and the identity of the witness is irrelevant.4
With respect to conferring regarding the number and description of the topics for examination, organizations largely support the amendment because it will force plaintiffs to be more specific as to the topics, which will allow the defense to better focus its preparation. That said, there’s concern that the amendment does not provide sufficient guidance regarding what exactly the parties would need to address in advance of the deposition to comply with the new language. Therefore, many have suggested additional or alternative provisions under the amendments, including a clear procedure for lodging and resolving objections by either side. In addition, those on the defense side, such as the Voice of the Defense Bar (DRI), have suggested a cap on the number of topics.5
Comments from the Plaintiffs Side
The plaintiffs bar is generally in favor of the amendments overall. For instance, the National Consumer Law Center (NCLC) and the National Association of Consumer Advocates (NACA) stated that the amendments constitute a “reasonable change” that would “facilitate fact-finding, preserve parties’ resources, and promote judicial economy.” That said, a number of groups on the plaintiffs side opposed the amendments as currently written and alternative suggestions by organizations. Not surprisingly, the focus of their concerns relate to the proposal of limiting the number or scope of topics. For example, the Public Justice Foundation, a national non-profit organization representing plaintiff groups in a broad array of personal injury, employment, consumer, tort and civil rights cases reasoned that “the number of topics does not actually control the substantive scope of the deposition, and an artificial limit on the number of topics may cause counsel to define topics more broadly” leading to more disputes.6
As for organizations possibly having to identify witnesses on the front end, plaintiffs argue that this would be a positive change that would increase efficiency, as many plaintiffs’ groups complain that under the current rule, often the original corporate designee is not the person most knowledgeable about the organization, leading to depositions being spent discovering who the real person with corporate knowledge is.
Conclusion
The Draft Committee Note for the proposed amendments attempted to address certain of the concerns expressed by both sides, confirming for example that the “named organization ultimately has the right to select its designees,” and “the amendment does not require the parties to reach agreement.”7 While most practitioners acknowledge that changes are needed to make the Rule 30(b)(6) deposition process more efficient, there appears to be a consensus among practitioners that the proposed changes as currently written could lead only to further discovery disputes, rather than a more streamlined process. The Advisory Committee will review the comments, and then choose to either discard, revise or transmit the amendment as contemplated to the Judicial Conference’s Committee on Rules of Practice and Procedure. If approved, it will go to the U.S. Supreme Court for final approval and could take effect by December 2020.
