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Amendment to Federal Rule of Civil Procedure 30(b)(6) Takes Effect December 2020

The year 2020 has brought lots of changes, including amendments to Rule 30(b)(6) of the Federal Rules of Civil Procedure.  The changes took effect starting December 1, 2020 and will have important implications on deposition practice in federal litigation.

Rule 30 deals with depositions generally, and subdivision (b)(6) deals with depositions of organizations (corporations, LLCs, partnerships, etc.).  Because an organization’s knowledge is usually spread out among several individuals, the rule generally requires the party seeking to depose the organization to “describe with reasonable particularity the matters for examination.”  The to-be-deposed organization must then “designate” one or more people to testify on its behalf about those topics.  Now, under the amended Rule 30(b)(6), “[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.” Additionally, for depositions initiated by subpoenas, the amended rule requires the serving party to “advise a nonparty organization of its duty to confer with the serving party” and the nonparty organization’s duty to designate individuals to testify on its behalf.

The conference requirement is limited to “the matters for examination” in the deposition.  The Advisory Committee rejected a proposal to require parties to confer about the deponent organization’s designees.

The amendments aim to streamline or eliminate disputes about deposition topics before the deposition occurs.  In particular, the Advisory Committee noted “concerns” with “overlong or ambiguously worded” topic lists on the deposing party’s side and “inadequately prepared witnesses” on the deponent’s side.  In the Committee’s words, the new requirement “facilitates collaborative efforts to achieve the proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1).”

Like other “meet-and-confer” requirements, the rule does not require parties to agree on anything in particular. Instead, it forces the parties to think critically about the topics and lay their issues on the table early, rather than raise them for the first time in the deposition itself or in a motion that will delay the deposition.  This differs from the ordinary “meet-and-confer” requirement for filing a discovery motion because the new 30(b)(6) conference requirement is automatic and is required even if the parties don’t have a dispute.

In an ideal world, after the required conference, the deponent organization should be better able to prepare its witnesses and the deposing party should have more confidence that they will be talking to the right people.  The requirement may also cut down on excuses for inadequately prepared witnesses.  If nothing else, the parties should at least have sharper focus on their points of disagreement that, under the previous rule, may not have been honed until later into their motion practice.

While the contours of the amended rule’s application remain to be ironed out, here are some best practices to use going forward:

• The conference requirement should not be a substitute for well-drafted, specific, and clear topics, or for meaningful and robust witness preparation.
• Keep a written record or summary of what went on in the conference. Confirm any unilaterally-drafted summaries of the conference with the other side.  The record may be an important exhibit in a later discovery motion.
• Focus the conference on areas of likely dispute (yours or your opponent’s). Courts are not likely to have patience for the party who breezes over an issue in the conference but later makes that issue the central focus of a discovery motion.
• Although it’s not required under the rule, consider also conferring on other “nuts and bolts” aspects of the deposition (e.g., timing and location, order of witnesses, estimated duration, etc.)

Related Links: 

• Federal Rules of Civil Procedure
• Amendment to Federal Rule of Civil Procedure 30(b)(6)