A Review of the 2020 Amendment to Rule 30(b) (6): A Guide for Practitioners on How to Approach the New Corporate Deposition Process.

• Date: 01 January 2021
• Author: Ward, Tiffany

The U.S. Supreme Court has approved an amendment to Federal Rule of Civil Procedure 30(b)(6)--the first-ever substantive amendment to this rule--which took effect on December 1, 2020. This amendment is the result of years of complaints by practitioners that the rule was fertile ground for abuse and circumvention of discovery rules designed to encourage proportionality and equity for all parties when conducting discovery in a civil case. Most commonly used for noticing the deposition of a corporate representative. Since its enactment in 1970, Rule 30(b)(6) has often fostered contention and gamesmanship by parties attempting to obtain otherwise impermissibly broad discovery from an opposing party corporation.

After years of deliberation, the Advisory Committee on Civil Rules recommended an amendment that would require opposing parties "to confer in good faith about the matters for examination" in a Rule 30(b) (6)-noticed deposition. However, discussing 30(b)(6) notice issues with opposing counsel is already considered a best practice and is often required by local federal court rules. Nonetheless, this amendment will encourage more meaningful negotiations and will likely generate successful resolution of issues without the need for court intervention than the prior informal practice. This article discusses the 2020 amendment to Rule 30(b)(6), ways the rule could be improved, and how practitioners can work around the rule's shortcomings with best practices for anticipating and resolving disputes related to Rule 30(b)(6) depositions early in the litigation.

The History and Evolution of the Rule

Rule 30(b)(6) was created in 1970 (1) to address issues encountered by both plaintiffs and defense counsel when attempting to notice the deposition of a corporation. (2) It allowed the noticing party to name an organization as the deponent, along with the matters for which that party requests examination, and then allowed the organization to choose which of its agents would appear and testify on its behalf. (3) In short, Rule 30(b)(6) was adopted to strike a balance between the needs of those seeking discovery from a corporation and the needs of the corporation itself. (4) Yet, over two decades after its promulgation, Rule 30(b)(6) became a "forgotten rule" as litigants often fail to utilize its ability to reduce the burden of litigation. (5)

As the Federal Rules of Civil Procedure and litigation tactics evolved, Rule 30(b)(6) transformed from a "forgotten rule" to a key tool for parties looking to circumvent more restrictive discovery rules. Now, the Rule 30(b)(6) deposition notice has become an established part of the discovery process involving organizations. (6) However, the rule has also transformed from an under-utilized discovery tool to a discovery tactic that "creates unfair, unworkable burdens on the responding parties and risks imposition of inappropriate sanctions, including preclusion of proof." (7) This most often occurs when litigants utilize Rule 30(b)(6) for abuse by attempting to circumvent new limitations on the number of interrogatories (8) and the number (9) and length of depositions. (10)

The 2020 Amendment to the Rule

Amendments to Fed. R. Civ. P. 30(b)(6) have been proposed and considered by the Advisory Committee on Civil Rules in the past. In 1970, when the rule was first created, broad discovery tactics were rampant. (11) Since then, there have been sweeping changes throughout the Rules of Civil Procedure controlling discovery. (12) Remarkably, however, attempts to amend Rule 30(b)(6) have consistently failed, with no significant modifications to the rule since its adoption in 1970. (13)

During its April 2016 meeting, the Advisory Committee on Civil Rules finally decided that a further examination of Rule 30(b)(6) was warranted. (14) After considering public comment on proposed amendments and practitioners' general experience under the rule, the committee noted a "pervasive concern" about practice under Rule 30(b)(6) and a plaintiff-defendant divide among opinions. (15) The plaintiff's perspective articulated an inability to prepare for corporate examinations. Defense concerns included over-reaching use of the rule, the risk of "gotcha" maneuvers, and the substantial cost of preparing a witness to testify. (16)

In April 2018, the Advisory Committee published for comment a preliminary draft amendment to Rule 30(b)(6). (17) The proposed draft amendment required the parties to "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." (18) As published, the new duty-to-confer requirement was meant to be iterative, including language that the conferral must "continu[e] as necessary." (19) The proposed amendment drew an enormous amount of attention from the bar, generally, and the public. Twenty-five witnesses appeared at hearings conducted by the Advisory Committee in Phoenix and 55 at the hearing in Washington, D.C. Additionally, some 1,780 written comments were submitted. (20) The Advisory Committee noted the divide between the plaintiff and defense bars with both sides having strong opinions about whether the proposed changes were...