The Committee on Rules of Practice and Procedure has begun consideration of proposed amendments to Federal Rule of Civil Procedure 30(b)(6). Hearings will occur on January 4 and February 8, 2019, and the public may submit comments until February 15, 2019. There are two aspects of the proposed Rule 30(b)(6) amendments. First, the serving party and the organization receiving the Rule 30(b)(6) notice will be required to “confer in good faith about the number and description of the matters for examination.” Additionally, the proposed amendments would mandate these parties to confer prior to the deposition about “the identity of each person the organization will designate to testify.”
The proposed amendments to Rule 30(b)(6) will accomplish little and should be rejected. Rule 30(b)(6) depositions presently generate disagreements at a particularly high rate. Disputes regarding issues such as the adequacy of notice to prepare the witness to address fully the corporate knowledge and the amount of deposition time appropriate for the needs of the case are common. More central to the functioning of the Rule 30(b)(6) procedure, parties frequently fail to reach a common understanding of the nature and scope of the identified areas for examination, leading to arguments and often motions pitting assertions of incomplete witness preparation against contentions that the topics set forth in the deposition notice were not described with sufficient particularity.
The proposed amendments do not address the inadequacies of Rule 30(b)(6) that lead to such disputes. Practitioners still will receive no guidance about limits on testimony time or proper notice. Although conferring about the number of topics and the description of the areas of inquiry appropriately focuses the parties’ attention on issues critical to the functioning of the procedure and most likely to spark disagreements, many courts already require such conferral and most practitioners undertake these efforts. Because pre-deposition conferral already occurs widely, building this requirement into the rule itself cannot be expected to yield significant improvement in Rule 30(b)(6) practice.
Far more problematic is the proposed requirement to confer in advance of the deposition regarding the identity of the person who will testify. The addition of this provision offers no meaningful benefit, but will confuse the parties’ responsibilities, encourage more disputes, and create complexity and gamesmanship concerns. The proposed addition of a mandated conferral regarding witness identity will establish a new discovery obligation never before recognized. As with any discovery obligation, the existence of this requirement would create the opportunity for litigants to disagree and pursue motions necessitating court involvement. With the proposed witness identity provision, this likelihood is apparent from current practice: even though courts consistently recognize that determining the representative who will testify at a Rule 30(b)(6) deposition is the exclusive province of the party responding to the notice, some litigants who serve Rule 30(b)(6) deposition notices nonetheless improperly demand their preferred individual appear as the witness. The proposed amendments would foster such disputes over the responding party’s witness selection by suggesting that a noticing party has a basis in the language of the rule itself for insisting on a particular person’s designation. Creating this new area of disagreement over Rule 30(b)(6) procedure would not improve the discovery process.
The proposed witness identity conferral requirement will also lead to confusion in some Rule 30(b)(6) depositions regarding the capacity of the witness and create the potential for sharp dealing. Rule 30(b)(6) depositions exist to provide discovery of information accessible by the responding organization, and not the information personally known by the specific witness. Because Rule 30(b)(6) depositions only address what is known or reasonably available to the organization and may be learned by the representative in preparing to testify, the designated representative need not have any personal knowledge pertaining to the topics of inquiry and his or her identity is not even relevant to the procedure. Once the identity of the witness becomes information mandated for disclosure, however, the noticing party can be expected to use that information to its advantage. As one example, the noticing party may use the advance notice of the witness’s identity to prepare an ambush in which a witness prepared to address corporate knowledge on topics identified in the Rule 30(b)(6) notice instead faces a barrage of questioning on matters within the witness’s personal knowledge but outside the scope of the topics listed in the Rule 30(b)(6) notice. The responding party cannot stop such questioning. The record of such a deposition that mixes corporate representative and personal knowledge questions will be deeply confusing as to the capacity in which the witness is speaking at any given point, and will require frequently interjections by counsel to clarify the record and extensive jury instructions if presented at trial.
Mandating pre-deposition conferral about witness identity does not address any need present in current Rule 30(b)(6) practice. This information has never been necessary for Rule 30(b)(6) depositions to provide useful and efficient discovery on information known and available to an organization. Problematically, if conferral about the identity of the witness leads to disagreement between the parties, neither the proposed amendment nor the existing structure of Rule 30(b)(6) provides an objection mechanism for raising and resolving disputes. Rather than adopt the deeply flawed amendments currently proposed, the Committee should reconsider concepts – such as a defined procedure for asserting and resolving objections – to address the functional inadequacies that have caused Rule 30(b)(6) to spawn a disproportionately large number of discovery disputes. The Committee should reject any amendment that directs a party responding to a Rule 30(b)(6) notice to discuss the identity of the witness with the opposing party in advance of the deposition.
Lee Mickus will testify at the January 4, 2019 hearing in Phoenix regarding the proposed amendments to Rule 30(b)(6), and submitted written comments to the Committee.