Practice Tips for the New Changes to Rule 30(b)(6) Depositions

• Author: Brian A. Zemil
• Pages: 20-20

In 2019, I wrote about proposed changes to Fede ral Rule

of Civil Procedure 3 0(b)(6) that would impose ongoing

meet-and-con fer obligations in connection with cor po-

rate designee deposit ions. After years of deliberation,

the adopted amendment now requ ires opposing parties

“to confer in good faith about t he matters for examination.”

The rule chan ge means counsels’ communication s are more

crucial tha n before because federal courts w ill require the

parties to engage i n exchanges on examination topics before

the corporate design ee deposition occurs. This a rticle dis-

cusses the 2020 a mendment to the rule and suggests t ips for

anticipating and re solving potential disputes.

In 2016, the Rules Advisor y Committee convened to pro-

pose an amendm ent to Rule 30(b)(6) designed to decrease

disputes in cour t over the list of topics for exam ination, suit-

ability, and preparedne ss of the designated representative.

The adopted change now state s: “[b]efore or promptly after

the notice or subpoena i s served, and continuing as neces -

sary, the servi ng party and the organizat ion must confer in

good faith about the mat ters for examination.” The amend-

ment targets problems w ith topic lists, particula rly “overlong

or ambiguously worded lists of m atters for examination.”

To solve the problem, the committee en courages practitio-

ners to engage in “[c]andid exchange s about the purposes of

the deposition and the or ganization’s information struct ure

[that] may clarify and fo cus the matters for examination

and enable the organ ization to designate a nd to prepare an

appropriate witness or wit nesses, thereby avoiding later dis-

agreements.” The key object ive of the 2020 amendme nt to

Rule 30(b)(6) is to “facilitate collabor ative efforts to achieve

the proportional ity goals” expressed in Rules 1 and 26(b)(1).

As a result, cour ts will now require the partie s to secure the

“just, speedy, and inexpe nsive determination of every action

and proceedin g” and obtain only as much d iscovery as is

proportional to the ne eds of the case.

While the a mended rule only i nstructs pa rties to confer

concerning th e matters of exam ination, there are several

best practic es litigants should consider.

Include Rule 30(b)(6) in your pretr ial conference and discov-

ery plan. The com mittee suggests referenci ng “Rule 30(b)(6)

depositions in the d iscovery plan submitted to the cour t under

Rule 26(f)(3) and in matters consider ed at a pretrial confer-

ence under Rule 16.” Engage in conversation s regarding the

scope of the Rule 30(b)(6) deposition e arly in the case, includ-

ing a limitation of t he topics and a process for objecting to

the notice. Coun sel should memorialize their ag reement in the

case management orde r or discovery plan.

Draft topics with r easonable parti cularity. Practit ioners

should avoid phrases such as “includi ng but not limited to”

since it fails to deli neate a discernable category and di min-

ishes the opposing pa rty’s ability to designate a suitable and

knowledgeable w itness.

Serve writt en objections to proposed topics. Craft objec-

tions to identify is sues to discuss that are also desig ned to

achieve a reasonable and good -faith compromise. Even if the

objections are not resolved , consider moving forward with

the deposition in the e vent the deponent may disclos e suf-

cient information to re solve the dispute.

Meet and confer on th e topics the deposing pa rty intends

to discover. Practitioners shou ld explain why each side

believes the mat ters of examinat ion are meritorious or not

while also weigh ing the proportionality require ment of Rule

26. Focus on area s of likely dispute to ensure t hat any issues

were fully vette d before seeking court intervention . Also,

keep a written reco rd or summary of t he exchanges in the

conference and consider m emorializing them with opposi ng

counsel for reference in a f uture potential discovery motion .

Consider discu ssing the designe e witness. While litigant s

have greater leeway not to confer over the w itness identi-

cation (such a requirement was reje cted in the n al amend-

ment), future problems may be avoided if prac titioners

discuss the de signee before the deposition. If addres sed in

advance, parti es may avoid a sanction motion if a po st-depo-

sition dispute arise s over whether the witne ss was indeed

knowledgeable on each of the desig nated topics.

Use discovery mot ions as a last resort . Conducting a

candid, good-fa ith conference is intended to narrow the

issues and, if i nsurmountable, present them to the cour t on

motions to compel, to quash, or for a prot ective order. In the

event of either a pre- or post-dep osition motion, the mov-

ing party mus t certify compliance with t he meet-and-confer

criteria or risk a su mmary den ial. A court may not rule on a

motion to compel under the a mended rule if a pa rty failed to

satisfy the mee t-and-confer re quirements.

The rule chan ge ultimately shi fts more responsibi lity to

practitioners rather t han the court s to resolve party dis-

putes. The succe ss of the meet-and- confer requirement will

depend, therefore, on me aningful attorney exchan ges and—

if they fail— the court’s enforcement of the new provisions

of the rule.

RESOURCE

Settlemyer v. Bor g-Warner Morse TEC, LLC , No. 1:19 CV 344 MR

WCM, 2021 U. S. Dist. LEXIS 32 10 (W.D.N.C. J an. 7, 2021).

Practice Tips for the New Changes to

Rule 30(b)(6) Depositions

By Brian A. Zemil , Litigation News A ssociate Editor

20 | SECTION OF LITIGATIO N

Published in Litigation News Volume 46, Number 3, Spring 20 21. © 2021 by the American Bar A ssociation. Repr oduced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

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