Parties Face New Discovery Obligations Under Proposed Rule 30(B)(6) Amendment

A proposed amendment to Federal Rule of Civil Procedure 30(b)(6) – the rule governing deposition notices directed to organizations – seeks to impose a new meet-and-confer requirement on parties.

Since the Judicial Conference Committee on Rules of Practice and Procedure approved publication of the proposed amendment to Rule 30(b)(6) on August 15, 2018, more than 1,300 public comments have been submitted supporting, opposing, or recommending additional amendments to the Rule. Public hearings on the proposed amendment to Rule 30(b)(6) were held on January 4 and February 8, 2019, and the opportunity for public comment closed February 15, 2019.

The amendment submitted by the Advisory Committee on Civil Rules would require the parties to “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.”  Excerpt from the May 11, 2018, Rep. of the Advisory Comm. on Civ. Rules (Rev. Aug. 2, 2018), at 33-34. The amendment also proposed adding language to the effect that the subpoena must advise a nonparty organization of its duty to make this designation “and to confer with the serving party.”  Id. at 34.

According to the Advisory Committee, “[m]uch of the commentary it had received indicated that such conferences often provide a method for avoiding and resolving problems.” Id. at 32. “Requiring the parties to confer therefore holds promise as a way to address the difficulties cited by those who urged amending the rule.” Id. The Draft Committee Note explains, “[p]articular concerns have included overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.” Id. at 34. “Candid exchanges about discovery goals and organizational information structure may reduce the difficulty of identifying the right person to testify and the materials needed to prepare that person. Discussion of the number and description of topics may avoid unnecessary burdens.” Id.

The Advisory Committee also reported a concern that “the addition of the identity of the witness or witnesses to the list of topics for conferring” might lead some to “interpret that as requiring that the organization obtain the noticing party’s approval of the organization’s selection of its witness.” Id. at 33. However, the Committee maintained that the proposed amendment and corresponding “Committee Note affirms that the choice of the designees is ultimately the choice of the organization” (Id.) and “discussion about the identity of persons to be designated to testify may avoid later disputes.” Id. at 34. The Draft Committee Note also suggests – but does not mandate – other topics of discussion, “such as having the serving party identify in advance of the deposition the documents it intends to use during the deposition, thereby facilitating deposition preparation.” Id.

Notably, the Draft Committee Note states “the obligation is to confer in good faith, consistent with Rule 1, and the amendment does not require the parties to reach agreement. The duty to confer continues if needed to fulfill the requirement of good faith. But the conference process must be completed a reasonable time before the deposition is scheduled to occur.” Id.

Although the proposed amendment is intended to streamline the Rule 30(b)(6) process, the added meet-and-confer requirement may actually increase discovery disputes and litigation costs. For example, requiring the organization to identify the witness or witnesses in advance of the deposition opens the door for the serving party to object to or challenge a particular designation. However, requiring the parties to meet and confer regarding the specific topics for examination may assist the organization in identifying the proper witness and avoid such challenges.

If approved, the amended Rule would take effect on December 1, 2020.