THE federal judiciary's Advisory Committees on Civil Rules and Rules of Evidence are considering reforms that could result in major changes of the federal civil docket. Proposals under review would, if approved, amend the Federal Rules of Civil Procedure ("FRCP") and Federal Rules of Evidence ("FRE") in key areas of importance to civil defendants.
This article examines four areas for potential reform: (1) depositions of corporations and other organizations pursuant to FRCP 30(b)(6); (2) amendments to adapt the federal civil rules to cases that are consolidated pursuant to 28 U.S.C. [section]1407 for "coordinated or consolidated pretrial proceedings," commonly known as multidistrict litigation (MDL) cases; (3) a proposed amendment to FRCP 26(a)(1)(A) to require disclosure of third-party litigation funding (TPLF) agreements; and (4) proposed amendments to FRE 702 regarding expert testimony.
Each of these areas has been the subject of substantial discussion and debate, often beginning with requests for rulemaking by Lawyers for Civil Justice (LCJ) with support from the IADC and its sister defense bar groups, business associations, and civil justice organizations. (1) The proposed reforms are in different stages of the Advisory Committees' evaluation and approval process. Each is the subject of ongoing discussion; some may be discussed for years.
This article provides a snapshot of the status of the proposals with some background and history. Civil defendants and their counsel should be aware of the proposed changes and be prepared to engage when opportunities arise.
Rule 30(b)(6) Depositions of Corporate Witnesses
In April 2019, the Advisory Committee on Civil Rules approved an amendment to Rule 30(b)(6) governing depositions of corporations and other organizations. The proposed amendment states:
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, the serving party and the organization must confer in good faith about the matters for examination. 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. (2) The proposed amendment is intended to "avoid unnecessary burdens" through "candid exchanges" by the parties "about discovery goals and organizational information structure" and "the number and description of topics." (3) It is likely to be approved by the Committee on Rules of Practice and Procedure and is on track to take effect on December 1, 2020.
Significantly, the Advisory Committee declined to adopt a controversial proposal to require parties to confer about "the identity of each person the organization will designate to testify." (4) That language was in the Advisory Committee's proposal published for public comment in August 2018. (5) As explained below, that language produced strong criticism from the defense bar and business community. The Advisory Committee also declined to require organizations to identify their designees a certain number of days in advance of a deposition. This was not part of the proposed amendment that was published for public comment, but was considered by the Advisory Committee in light of the "intensity of the commentary" on the published proposal. (6)
The Advisory Committee declined to adopt several improvements to Rule 30(b)(6) supported by defense interests, such as a clear procedure for objecting to a Rule 30(b)(6) notice or presumptive limits on the number of topics that can be listed in a Rule 30(b)(6) notice. The reforms were not in the proposal that was published for public comment, but many on the defense side advocated for them in written comments and testimony.
The Advisory Committee's current proposed amendment is the product of nearly 1,800 written comments and two days of testimony from 80 witnesses at public hearings in Phoenix, Arizona, and Washington, D.C. in early 2019. The IADC and many IADC members testified at the public hearings and submitted written comments, as did other defense bar groups and individual practitioners. Many of the comments from the defense perspective focused on the controversial language in the August 2018 published proposal to mandate conferral about "the identity of each person the organization will designate to testify."
The IADC expressed the view that requiring parties to confer about the identity of the Rule 30(b)(6) witness would lead to attempts by plaintiff lawyers to "reshape settled law that a noticing party has no right to dictate the witness speaking for the organization." (7) Further, plaintiff lawyers could misuse the proposed rule to "gain a litigation advantage, such as by trying to block or challenge a witness with a reputation for being an effective spokesperson for an organization." (8)
The IADC also cautioned that witness identification at a meet-and-confer could "restrict the organization's flexibility to change its proposed designee." (9)
LCJ told the Advisory Committee that the proposal would "exacerbate, not remedy, the contentious nature of many Rule 30(b)(6) depositions." (10) LCJ said that the proposed rule change would impose an impractical requirement on organizations to disclose witness names "on the spot" at a meet-and-confer before the matters for examination have been discussed, and create an ambiguous continuing good faith duty to confer "as necessary" that would provide fertile ground for new discovery disputes and potential gamesmanship. (11)
The President of DRI-The Voice of the Defense Bar testified that a Rule 30(b)(6) witness identification requirement would create an improper "illusion that the other side has some say" in an organization's witness selection. (12)
He cautioned that mandatory witness identification far in advance of an organization's deposition could shift the focus of depositions to "personal issues with respect to that particular witness," distorting what is really at issue in a case. (13)
In addition, nearly 140 corporations joined a February 2019 letter to the Advisory Committee expressing their opposition to mandatory conferral about "the identity of each person the organization will designate to testify." (14) According to the companies, "Imposing such a requirement would provoke time-consuming and costly new discovery disputes as counsel and courts struggle to square the change with the well-settled and well-grounded law that the...