Have you heard about the new meet and confer requirements? In December of 2020, an amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure came into effect. This represents the first substantive amendment to Rule 30 since it was enacted in 1970. So, just what do the changes mean for you?
In this article, we’re going to share details about the goal and reasoning for the amendment and we’ll share how it’s expected to impact depositions going forward.
History of Rule 30(b)(6)
Before we dive into the latest changes in the recent amendment, we must explore the original creation and goals of Rule 30(b)(6). Although opponents of the rule have fought for change for years, at the time it was enacted, the Rule was designed to address issues facing both plaintiffs and defendants. The original text attempted to strike a balance between the needs of those seeking discovery from a corporation and the needs of the corporation itself. Essentially, it allowed the noticing party to name an organization as the deponent, while the corporation was free to select which of its employees would offer testimony.
As you might imagine (or as you may have personally experienced), the well-intentioned Rule 30(b)(6) soon began causing problems. The organizations receiving notice were able to form their own interpretations of planned topics, which led to frequent disputes when the designated witnesses were not adequately prepared to testify. Nevertheless, the rule remained unchanged for decades.
To closely examine the modifications to Rule 30(b)(6) and discuss the potential ramifications of this amendment, we’re including the full text below:
“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. to confer with the serving party and to designate each person who will testify. 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.”
Rule 30(b)(6) now requires them to meet and confer “before or promptly after the notice or subpoena is served. According to the Advisory Committee Notes for the 2020 Amendment, the changes reflected above are meant to promote candid exchanges about the purposes of the deposition and to make it easier for parties to achieve the proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1). The committee notes also clarified that the meet-and-confer provisions in the amendment do not necessarily require the parties to reach an agreement without guidance from the court.
Considering the finalized text of the amendment, many attorneys have argued that the meet-and-confer requirement does not create any meaningful change because this is already considered best practice. To some extent, this is a valid criticism, however, the new language requiring parties to confer “in good faith” does offer some protection from duplicitous maneuvering.
Ultimately, the amendment provides a basis to refute any claims that a witness was unprepared, given the noticing party has a duty to confer regarding the topics of examination. Furthermore, the party receiving the notice has very little wiggle room when it comes to putting forth an unprepared witness because the matters of examination should be focused and clear. As a result of these changes, both parties should gain a better understanding of the specific subject of the deposition, which will reduce the overall number of discovery disputes over time.
Thanks for reading! We hope we’ve been able to provide a useful review and summary of the recent amendments to Rule 30(b)(6). If you enjoyed this article, feel free to share it on social media.