Proposed Changes to Rule 30(b)(6) are Met with Criticism
Rule 30(b)(6) of the Federal Rules of Civil Procedure, which pertains to taking oral depositions during litigation, is currently under review.
As the rule stands now, once an organization receives a notice or subpoena for a deposition, it must designate one or more persons to testify on the organization’s behalf. The organization also determines which topics the deponents will testify about during the deposition. There is criticism that allowing organizations to determine who gets deposed on what topics fosters litigation disputes and delays, especially when an organization selects someone who does not have requisite knowledge of the pertinent issues or has knowledge about other issues not discussed before the deposition. Additionally, when the requesting party is unaware of who will testify, it can make it difficult to competently prepare and depose the witness. This can cause disagreements both during and after depositions that the court may need to resolve. Oftentimes, these disputes do not go to the judge until right before trial, as that is when the parties are determining what topic each witness can and cannot testify about while on the witness stand. These disputes can push out already set trial dates and impact a court’s calendar.
This past August, the federal rules advisory committee proposed changes to Rule 30(b)(6) to try and alleviate these criticisms. If the amendment passes, the rule will contain the following language:
“Before 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.”
Additionally, subpoenas would need to advise nonparty organizations of the duty to confer with the serving party. While this amendment would require that parties discuss who is testifying on behalf of an organization and what topics the lawyers can cover, the ultimate decision regarding who will testify still lies with the organization. The committee believes that this will help streamline the process, promote transparency, and decrease the number of disagreements that arise in these situations. This also gives the noticing party the opportunity to address any issues concerning selected witnesses outside of court, before wasting time and resources at a deposition. Many attorneys already confer with one another on Rule 30(b)(6) notices – the goal of this amendment would simply make this already used practice a requirement.
Comments regarding the amendment were due to the rules committee on February 15, and many major corporations voiced concern over these proposed changes. Over 100 organizations (including Ford, Microsoft, and Comcast) submitted a joint public comment letter to the committee objecting to the new language. Specifically, these organizations voiced the following concerns:
- An organization should be able to retain the exclusive right to identify Rule 30(b)(6) witnesses and the subject matters these witnesses will testify about without input from opposing counsel.
- The rule needs to provide more guidance. For example, the language requiring counsel to confer about “the number and description of the matters for examination” is unclear and fails to lay out with specificity what the parties need to address prior to the deposition.
- An amendment forcing the parties to confer would increase, rather than decrease, discovery disputes. Failing to give an organization the exclusive right to choose their witnesses may potentially lead to litigators bringing every little argument about these witnesses to the court. This could also lead to litigators using tactics to block witnesses that could be unfavorable to their position. In turn, all of this will cost the parties and the courts time and money.
From the committee’s viewpoint, the amendment will not increase discovery disputes, but instead reduce these issues and streamline litigation. Many judges today prefer, or even require, that lawyers handle simple discovery disputes outside of court. This does not mean that there will never be issues about Rule 30(b)(6) witnesses that warrant court intervention. If that is the case, conferring with each other prior to the deposition (and ultimately trial) may help bring issues to the forefront so the court can handle the matters expeditiously. If the rule stands as is, the parties may not explore these issues until someone has to stop a deposition or until trial, when it can significantly slow down the process. If the amendment passes, the goal is for these arguments to occur early in the case before the deponents are in a room and time and money are spent.
The objecting organizations have the right to a hearing on their concerns. In their letter, the organizations suggest some alternative provisions that the amendment could include, such as placing a cap on the number of deposition topics and creating a clear procedure for objecting to witnesses or content. After these hearings, the committee will decide whether to keep, alter, or abolish the proposed language to the amendment. Litigators and courts should stay tuned for updates on the status of these proposed changes.