An amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) that took effect on December 1, 2020 requires attorneys to meet-and-confer regarding the subject matters of an organization’s oral deposition. This new prerequisite can serve as a useful method for counsel on both sides to facilitate a corporate representative deposition that better serves its intended purposes.
Issues the Amendment Addresses
Since its introduction in 1970, FRCP 30(b)(6) has required a party seeking to take the deposition of a business organization, governmental agency, or other entity to serve a notice or subpoena describing the matters for examination with “reasonable particularity.” The organization must produce one or more witnesses that can testify on the organization’s behalf to all relevant information known or reasonably available to the entity regarding those matters.
Despite even best intentions on both sides, there are challenges that impede the success of an organization’s deposition. For instance, the issuing attorney may lack the organizational knowledge to detail the matters of inquiry in a way that makes sense. Further, the subpoena may broadly describe a far-reaching spectrum of topics, in order to avoid any inadvertent omission. On the receiving end, review of an ambiguously-worded or overlong deposition notice could lead to the selection of a witness and/or preparation that does not align with the issuing attorney’s intent.
There are dire consequences for an organization that does not produce the right representative and/or does not prepare the deponent for the questions that are asked. If a witness does not know the answer to a question, the organization may be precluded from introducing evidence on the topic. A witness’s mistaken response will not only impact that case, but also will live on the record and potentially affect future litigation. Of course, a deposition that does not meet the issuing party’s needs can result in discovery disputes and further depositions.
In recognition of these problems, the Advisory Committee on Civil Rules (“Advisory Committee”) convened a Rule 30(b)(6) Subcommittee in 2016. The Advisory Committee published a proposed amendment in August 2018 and considered more than 1,700 public comments. In October 2019, the Advisory Committee submitted a revised proposed amendment to the United States Supreme Court, which has since taken effect.
The Amended Rule in Action
The amended FRCP 30(b)(6) specifically requires that: “Before 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 amendment also mandates that a subpoena to a nonparty organization advise of the duty to confer with the serving party.
The Committee Note explains that the amendment aims to facilitate “collaborate efforts” and “candid exchanges” regarding the deposition’s purpose and the organization’s information structure. The process can clarify the goals of the deposition and identify the precise topics of questioning, placing the organization’s attorney in a better position to designate and prepare the appropriate witness or witnesses and avoid discovery disputes. In addition, the issuing attorney can be apprised as to the organization’s information base, allowing for more productive questioning.
Attorneys can use the meet-and-confer for a variety of additional purposes: the exchange of anticipated exhibits to ensure the witness is adequately prepared; the explanation for the relevancy of documents or information sought in the deposition; and the resolution of objections pertaining to specific lines of questioning.
Nonetheless, the aspirations the amendment to FRCP 30(b)(6) seek to bring are purely that—aspirations. It is up to attorneys to meet-and-confer in true good faith in order to take advantage of the potential benefits of the new requirement.
If you need any additional information, please contact Abbie Eliasberg Fuchs or Alex Anolik.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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