A Remedy with Side Effects
Updated: Nov 8, 2019
The 2018 Proposed Amendments to FRCP 30(b)(6) (*1)
Nearly 50 years old, Federal Rule of Civil Procedure 30(b)(6) represents an important procedural innovation in litigated matters concerning corporations, organizations, or the government. The Rule serves the interests of examining parties and organizational deponents alike.(*2) For corporations, the Rule reduces disruption of operations from unnecessary depositions searching out employees with relevant corporate information.(*3) The corporation selects and prepares the witness(es) who will testify for it, on the disclosed topics of the deposition notice, permitting it choices tactical and desirable for its case.(*4) In turn, the corporation must provide a prepared witness(es), able to testify responsively on each topic.(*5) The Rule curbs “bandying,” the evasive practice of corporate witnesses who, one after another, testify to lack of knowledge of facts clearly available within the corporation while suggesting other individuals as the proper witness.(*6) Without 30(b)(6), a federal district judge observes, a corporation would be able to select at trial the most convenient answer presented by any number of finger-pointing witnesses at depositions.(*7) “Truth would suffer.”(*8) As would efficient discovery and pre-trial motions.
Rule 30(b)(6) accordingly affects an allocation of burdens and privileges—permitting parties to cut through the fog of corporate or governmental information and its storage, while ensuring streamlined, efficient discovery of such information plus corporate control over who provides it. In 2018, the Civil Rules Advisory Committee of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed an amended Rule 30(b)(6) for public comment.(*9) The Committee also submits a draft Advisory Committee Note for the new Rule. Written comments are due by February 15, 2019, and may be submitted here.
For our readers’ convenience, the proposed Rule 30(b)(6), with amendments to the existing Rule indicated by underline or strike-through, is excerpted here:
Rule 30. Depositions by Oral Examination
(b) Notice of the Deposition; Other Formal Requirements.
(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. 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. A subpoena must advise a non-party organization of its duty to make this designation and to confer with the serving party. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
In sum, the proposed amendments mandate the noticing party and organization to confer over three things: (1) number of matters for examination; (2) description of matters for examination; and (3) identity of the designated witness(es). In this blog post, Tiwald Law provides its thoughts on this recent, important proposed development in discovery practice.
A. The proposed confer language is duplicative. Further, its insertion is likely to cause more disputes, not fewer.
The Federal Rules already require conferring in good faith for anything objectionable in a Rule 30(b)(6) notice or subpoena. See Rules 26(c)(1) (confer required before party may seek protective order); 37(a)(1) (confer required before motion to compel); 30(b)(1) (reasonable written notice of deposition required). The proposed language is thus duplicative. It does not add new efficiency to the process.
Instead, just the opposite, we fear the added language effectively raises a presumption that a 30(b)(6) notice must now—no matter how proper—be “conferred,” read negotiated, into compliance. A transactional negotiation (with implied, mandated compromise) becomes rule-mandated even when not warranted. A preliminary objections round, meritorious or not, would now meet any party seeking to proceed under Rule 30(b)(6). Such language assuredly beckons more motions, not less.
Further, we fear the language may birth an obstructionary tactic serving organizational-deponents. Required meet-and-confers may now transform bluffed objections, unmeritorious haggles, or the like, into mere “Rule compliance.” In turn, this may lead to routine over-noticing. This atmosphere will create more motions practice. In reality, 30(b)(6) notices already must comply with the rules of discovery, and are generally carefully crafted to do so. When organizations feel a notice deficient, they may, like any party, confer, then move to object. What organizations may not do now—yet the proposed language permits, nay directs—is ritualize delay of proper discovery. The proposed language appears, in effect, a ritualized confer benefiting predominantly one side.
In short, the proposed fix to something not broken would make 30(b)(6) a more complicated and litigious endeavor. The proposed language makes transactional what is now clear, with responsibilities already delineated in the Rule and existing law. This language gives rise to more disputes, not fewer.
B. The Rule should not include “number” as an issue conferred.
Rule 30(b)(6) should not include the requirement to confer over the number of topics in a notice. Any limitation upon number of items for examination would prove problematic, generating discovery disputes. First, Rule 30(b)(6) governs discovery across vastly disparate fact patterns, from premises liability cases of one or few issues, to matters of complex electronics, products, software development, varied statutory realms, and more. A limitation on number is impossible to fairly pinpoint for all cases, and is correctly left to case-by-case determination informed by infinitely varying fact patterns, discovery needs, and party resources.
Next, inserting “number” for conferring creates a transactional issue where none now exists, and creates a new presumption: that the number of topics in a notice is always too high. Further, number of topics often has little correlation to burden; a single complex topic may impose much greater burden than a list of topics covering routine facts, information, or documents. Limiting—or mandatory negotiating of—the number of topics in a notice is, like above, likely to introduce an organizational delay tactic, ultimately causing more, not fewer, motions.
Similarly, inclusion of “number” may encourage parties to craft ambiguous, strategic yet problematic, notices. Few topics, each broad or lacking specificity; subparts, and subparts of subparts; etc—such notice possibilities are likely non-beneficial to either side, yet are encouraged under insertion of “number.” While noticing parties will feel compelled to draft notices that provide organizations proper and substantive notice of matters for examination, organizations, by contrast, will seek to limit the overall number of items as a matter of course. The resulting notice may carry significant ambiguities, or be void of the specificity facilitating efficient witness preparation and ultimate discovery. We fear that resulting motions practices, or depositions having to search for knowledgeable individuals, become likely. As stated by other commenters, and elsewhere whenever the question arises, meritorious substance (and parties’ discussion of it) should supersede form. This permits discovery to flow smoothly. When an organization feels a notice burdensome for any reason, the Rules already provide for conferring, then motions.
In sum, Rule 30(b)(6) should not include “number,” whether an arbitrary limit or as proposed. Organizations hold every ability to confer whenever a notice presents undue burden. But mandatory haggles over number of notice topics benefits only organizations, generally the party with greater resources and greater ability to incur financial penalties for discovery obstruction.
C. Identity of designees should be disclosed. But imposing the matter for mandatory conference creates problems.
Disclosure of designee identity is beneficial to both noticing parties and organizations, permitting noticing parties to better organize questions and documents, and in turn, permitting more organized and efficient depositions for designees. We note that in our experience, disclosure often occurs voluntarily.
Disclosure itself important, we feel the language making identity subject to mandatory conferring duplicative and problematic. First, after disclosure, a party objecting to identity would already be required to confer on this point before any motion to the issue. See generally Rule 37(a)(1) (certification required); Local Rules for most federal courts. Further, under the present and proposed Rules, designee identity is ultimately up to organizations, who must interpret this choice as a responsibility to present a prepared witness, lest they face penalties. But mandatory conferring on this point—that is, transactional discussion over a choice ultimately for the organization—we fear will not clearly reduce discovery disputes. The discussion alone seems unnecessary, given organizations’ final say. And, such conferring, we note, might even inject an avenue for obstruction into the Rule: feigned, good-faith discussion over designee identity intended only to delay ultimate depositions.
In short, a requirement that organizational deponents disclose the identity of each person designated to testify would be beneficial to both sides. In such disclosure, current party privileges and responsibilities would not change, and there is no suggestion here that they change. But subjecting this matter to mandatory conferring, as opposed to just disclosure, would establish opportunity for dispute where normally none exists.
In our view, the proposed amendments would render transactional—subject to negotiation—matters already governed by clear duties and requirements. The confer requirement already exists whenever an organization has concerns about a 30(b)(6) notice. Disclosure of identity is beneficial, but to impose a mandatory conference on number, description, or identity would lead to more, not fewer, motions, and would weaken efficiency in discovery, the purpose of Rule 30(b)(6).
Read the official public comments of Tiwald Law to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, here.
(*1) By Jay Reidy, attorney, Tiwald Law PC. The views and opinions expressed herein do not constitute legal advice. Note to our readers: Authority under Rule 30(b)(6) is abundant. Cases cited in this article are merely representative examples.
(*2) E.g., Notes of Advisory Committee, Fed. R. Civ. P. 30, 1970 Amendment (“The new procedure should be viewed as an added facility for discovery, one which may be advantageous to both sides.”).
(*3) Id. (“The provisions should also assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge.”).
(*4) See, e.g., United States v. Taylor, 166 F.R.D. 356, 360–61 (M.D.N.C. 1996) (noting organization’s control over designated witness identity and preparation).
(*5) E.g., Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 268 (2d Cir. 1999).
(*6) E.g., Notes of Advisory Committee, 1970 Amendment; Peshlakai v. Ruiz, 2014 WL 459650, at *22 (D.N.M. Jan. 9, 2014) (Browning, J.) (citing cases) (“The purpose behind designating a witness to represent the corporation is to prevent bandying, which is the practice of presenting employees for their depositions who disclaim knowledge of the facts known by other individuals within the organization.”).
(*7) Taylor, 166 F.R.D. at 361 (citing Lapenna v. Upjohn Co., 110 F.R.D. 15, 24 (E.D. Pa. 1986)).
(*9) Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure, and the Federal Rules of Evidence, Request for Comment (August 2018) 31–38, available at, https://www.uscourts.gov/sites/default/files/2018_proposed_rules_amendments_published_for_public_comment_0.pdf