The general counsel of a manufacturing company received a deposition notice for a person with knowledge of over 20 listed topics and subtopics. Some of the topics and subtopics are not applicable to the company, and other topics are described so vaguely that the general counsel cannot determine who at the company would be an appropriate deponent. The general counsel believes that a conversation with the lawyer for the party submitting the deposition notice would help clarify whom to designate as the deponent and that the requesting lawyer should have contacted her in advance to discuss the topics. Under the current Federal Rules of Civil Procedure, the general counsel is right.
In December 2020, amended Federal Rule of Civil Procedure 30(b)(6) went into effect, requiring parties to meet and confer about matters for examination. Per the Advisory Committee notes, this meeting should occur either before or promptly after service of a Rule 30(b)(6) subpoena. The subpoena must also notify the receiving party of the recipient’s duties to confer and designate who will testify.
Since its creation in 1970 until December of last year, Rule 30(b)(6) remained unchanged in guiding litigants on depositions of corporations, LLCs, government agencies, etc. The rule requires the noticer to describe the matters for examination with “reasonable particularity.” The recipients of a Rule 30(b)(6) deposition notice in turn must designate one or more individuals to testify on behalf of the entity and ensure they are prepared to be deposed about information “known or reasonably available to the organization.”
The amended rule came after almost two years of discussion. The Advisory Committee considered numerous obligations but ultimately decided against requiring the parties to confer as to the number of matters for examination, the identity of each person the organization planned to designate, or ordering the meet and confer to continue as necessary.
The amended rule seeks to solve issues for both the noticer and the recipient. Rule 30(b)(6) has long required the noticing party to describe the matters of examination “with reasonable particularity” but noticing parties are sometimes overinclusive in their descriptions. Noticing parties understandably seek to avoid foreclosing certain areas of inquiry through an objection that the topic sought to be covered was not part of the deposition notice. On the other side, the recipient is required to be adequately prepared to testify, which can be extremely burdensome where there is a broad and ambiguous Rule 30(b)(6) deposition notice.
The goal of the revision is to help reduce the number of disputes surrounding the Rule 30(b)(6) deposition and witness(es) that are brought before the court. The rule change is designed to help clarify proposed examination topics earlier in the litigation. Ideally, it will also make it easier to identify the witness(es) best suited to testify and assist in their preparation. This may, in turn, reduce available defenses for witnesses who are inadequately prepared.
Many litigants have used written objections to Rule 30(b)(6) deposition notices, which can (and should) continue to help clarify the scope of the examination. If this rule change does not seem new to you, it is because many courts’ local rules already require a meet and confer. And many litigators were already in the practice of having a meet and confer as a best practice, even absent any local rules on the matter. Where this practice has not been common, the new rule is intended to help both sides in the litigation with more timely and efficient resolution of at least this issue.