With little fanfare, an amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure went into effect on December 1, 2020. It is critical that federal practitioners appreciate how the nuances of the amended Rule 30(b)(6) will affect deposition planning strategy in the coming year and beyond. The rule now requires that, “[b]efore 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.” The amended rule attempts to remedy existing entity designee deposition practice, which far too often involves the use of overly broad and ambiguously worded lists of topics for examination and poorly prepared witnesses. Meet-and-confer requirements are certainly not new to federal practice. What is new, however, is the opportunity to (1) better understand the specific topics of the deposition testimony (2) narrow the deposition topics by agreement, if appropriate and (3) more clearly outline the scope of any disputes in advance of the deposition.
In their article titled “Key Takeaways from the Amendment to Rule 30(b)(6)” (Lexology 12/10/20), Proskauer Rose LLP authors, Matthew I. Rochman and William D. Dalsen, discuss how the amended rule may be advantageous to both sides. As a practical matter, counsel for the corporation may now be able to rebut a claim that the deponent was unprepared by arguing that any purported lack of preparation was due to the lack of candor and specificity on the part of the examining party during the meet-and-confer. On the other hand, counsel for the party taking the examination may be able to argue that the corporate defendant has no excuse for putting forth an unprepared witness because, presumably, the matters of examination will be more focused and clear due to the process put into place by the amended rule.
The amended rule will also served to strengthen Rule 30(b)(6)’s requirements in general. For example, the notice of deposition or subpoena must describe with “reasonable particularity” the matters for examination of the party (or subpoenaed non-party) designee. In his article titled “7 Tips for Predeposition Meetings under New Federal Rule” (Law360 11/30/20), James Wagstaffe cautions that the reasonable particularity standard is not toothless. In Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 638 (D. Minn. 2000), Wagstaffe observes that the court held in that case that the noticing party should designate the topics to be investigated with “painstaking specificity” so that the designating party can identify the particular areas of the anticipated inquiry. Thus, for example, the noticing party should avoid phrases such as “including but not limited to” since such a request defeats the entire purpose of requiring the noticing party to delineate categories at all.
Amended Rule 30(b)(6) Practice Tips
- Focus the meet-and-confer discussion on the designated categories.
Wagstaffe advises targeting vague or overbroad categories in the notice such as the use of the catch phrase “including but not limited to”. Ensure that the notice does not impose uncertain or overlong periods for the acquisition of information exceeding the relevant time parameters of the case. Be mindful of a demand to produce the “person most knowledgeable” when the rule requires only that the designee be sufficiently educated on relevant topics. Throughout the meet-and-confer process, be mindful of Rule 26’s proportionality requirement.
Rochman and Dalsen advise that a productive conference should focus on what topics the deposing party intends to cover, why each side believes the matters of examination are meritorious or not, and alternatives to the deposing party’s specifications to resolve such a dispute. For example, if the deposing party identifies a topic of examination to lay a foundation for the admission of certain documents at trial, it may be beneficial to consider whether a stipulation concerning the authenticity of those documents may achieve the deposing party’s purpose as an alternative to using the deposition to obtain that objective.
2. Reach agreement on whether to combine a corporate designee and a personal knowledge deponent.
Serving as a corporate designee does not insulate a witness from a further personal Rule 30(b)(1) deposition. Absent agreement in advance, whether a witness is testifying based on personal–and not binding–corporate knowledge can become a bone of contention at the deposition. As a practical matter, it may be more efficient for the parties to agree that a witness provide both personal and corporate designee testimony in the same deposition. Protocols can be agreed upon to facilitate a “combined” deposition.
3. Serve written objections to proposed topics of examination.
The service of written objections serves several useful purposes, not least of which is to hone issues in dispute in advance of (or in spite of) the meet-and-confer. Written objections can provide a helpful record of the responding party’s legal position if issues that cannot be resolved through meet-and-confer end up before the Court.
Interestingly, the amended rule does not require discussion concerning the identity of corporate designees. Requiring the corporate defendant to exchange the identity of its designees was considered in an earlier version of the amended rule, but ultimately rejected due to opposition from both the bar and the business community.