Did the Hot Seat Just Get Hotter?

March 11th, 2019 By Catherine Hanna

Potential Substantive Changes to Rule 30(b)(6): What Companies Need to Know

For the last fifty years Rule 30(b)(6) of the Federal Rules of Civil Procedure, which governs corporate representative depositions, has remain unchanged.  Now, in a move that is causing defense attorneys and their clients heartburn, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed an amendment that could potentially cause discovery disputes to hit the roof.

In its current form, Rule 30(b)(6) stipulates that after a detailed notice or subpoena for a deposition of a party from a corporation, partnership, association, government agency, or other entity, the named organization must then designate or person or group of people who can testify on its behalf.  Notably, Rule 30(b)(6) neither specifies when this designation must occur, nor does it give the requesting party any influence over this designation.  Now, in a rather polarizing move, the Committee has proposed amending Rule30(b)(6) to include a “meet and confer” requirement, where:

Before or promptly after the notice or subpoena is served, 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 who will testify.  A subpoena must advise a nonparty organization of its duty to make this designation and to confer with the serving party.

While proponents of the amendment have argued that it will reduce discovery disputes and streamline litigation, there are concerns that this requirement will instead create an obligation that will only cause more opportunities for discovery disputes.  Specifically, by forcing both parties to meet and confer on the number and description of the deposition topics, as well as the identity of the person who will testify, the amendment creates yet another hoop to jump through in the litigation process, thereby increasing litigation costs.  The term “confer” could potentially open up conflict where the noticing party could attempt to influence the selection process.   Many defense attorneys have expressed concerns that this amendment would only cause discovery disputes that could potentially eat up valuable docket time in federal courts.

As alarming as the proposed amendment may be, there is at least one provision that should not be “news” to litigators in Texas.  Rule 199.2(b)(1) of the Texas Rules of Civil Procedure requires that a named organization designate its corporate representative(s) “a reasonable time before the deposition.”  While Texas does not require parties to meet and confer, it does allow for some transparency as to the identity of the witness.

Takeaway: The Committee has held public hearings the last few months to determine if the proposed change to Rule 30(b)(6) will go forward.  If it does, the U.S. Supreme Court will then consider the amendment, which would take effect no later than December 1, 2019.  If the amendment for Rule 30(b)(6) goes forward, organizations will need to be prepared to identify matters and persons who can testify to these matters prior to deposition.  While many companies in Texas are already aware of the need to identify corporate representatives prior to deposition in state court, the new “meet and confer” provision may cause additional disputes and costs in federal discovery.