In August of 2018, the Advisory Committee on Civil Rules proposed a number of amendments to certain appellate, bankruptcy, civil, and evidence rules applicable to litigation in U.S. federal courts. It is beyond the scope of this article to address each of the proposed changes, but, generally speaking, these civil rules govern procedure in U.S. federal courts and generally address issues like jurisdiction, venue, pleadings, pre-trial procedures, trial, the resolution of cases without trial, and of course discovery, especially with respect to the production of documents and the oral deposition of witnesses. While these changes apply specifically to litigation in U.S. federal courts, it is important to bear in mind that many of these federal rules are often used as a template for the rules governing many state court systems throughout the United States.
The rule of interest here is Rule 30(b)(6). This particular rule is designed to allow a party to serve a notice of deposition or subpoena upon another party without designating a particular person to testify but to “describe with reasonable particularity the matters for examination.” In practice, it is generally understood that the party seeking the deposition is required to identify those topics upon which it wants testimony and the party upon whom the notice or subpoena is served is required to designate which individual or individuals are appropriate to testify on those topics.
There have been numerous problems arising from interpreting this particular rule. One of which is the issue of whether a particular individual proffered as a Rule 30(b)(6) deponent is appropriate to testify on a particular issue. Another issue that commonly arises is when a Rule 30(b)(6) deponent has relevant knowledge about another area that was not specifically addressed in the Rule 30(b)(6) notice and is asked to testify about the non-specified topic. Because whatever testimony generated during a deposition has the potential to be admitted into evidence at trial, much could be at risk if a witness is forced to answer certain questions under oath. Federal district judges are often asked to resolve these types of discovery disputes, which necessarily delays and increases the cost of litigation.
In an effort to lessen possible areas of conflict, the Advisory Committee has recommended Rule 30(b)(6) be amended to add a requirement that the parties confer on the selection of witnesses to testify in response to a Rule 30(b)(6) notice. The following are the proposed changes to Rule 30(b)(6) with wording either bold or struck through to indicate the changes:
Rule 30. Depositions by Oral Examination
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(b) Notice of the Deposition; Other Formal Requirements.
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(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 nonparty 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 practice, experienced counsel when faced with a Rule 30(b)(6) deposition notice is usually proactive in reaching out to counsel representing the designated deponent to inquire about the individual’s current job title and background in an effort to exercise some due diligence in making sure he or she is appropriate for the topics identified in the deposition notice. As such, the concept of requiring counsel to confer in advance of the deposition should not be controversial.
However, on February 5, 2019, more than 135 major corporations and organizations joined in sending a letter to the Advisory Committee to object to this proposed change. Some of these corporations include: American Airlines, Bank of America, Comcast, Exxon Mobil, FedEx, Ford, GE, Johnson & Johnson, Microsoft and Pfizer. Specifically, they wish to preserve an organization’s right to have a complete and ultimate right to designate whomever it wishes in response to a Rule 30(b)(6) notice and not have the party seeking the deposition to have any influence on the choice of any witness(es). In addition, they believe that the phrase “the number and description of the matters for examination” is too vague to provide sufficient guidance on what exactly is to be discussed by counsel. From their perspective, the imposition of this amendment to Rule 30(b)(6) will instead create “time-consuming and costly” discovery disputes.
The time to file any comments with the Advisory Committee expires on February 15, 2019. There will also be an open hearing to discuss these proposed amendments.