The Advisory Committee on the Federal Rules of Civil Procedure have announced proposed amendments to the Federal Rules. The most significant are the proposed changes to Rule 30(b)(6) governing the deposition of corporate representatives. Specifically, the amendment would add a “conferral mandate” requiring the parties to confer in advance regarding the number and identity of topics and identify the corporate designees implicated by a Rule 30(b)(6) deposition notice. The amendments would be the first substantive changes to Rule 30(b)(6) in the nearly 50 years since it was adopted. If adopted by the Supreme Court, the rule would be effective December 1, 2020.
Rule 30(b)(6) governs corporate depositions and requires the corporate entity to designate deponents to testify on behalf of the corporation as to the notice topics. As interpreted by many courts, Rule 30(b)(6) imposes no obligation to reveal the identity of the corporate designee to testify until the 30(b)(6) deposition actually takes place.
The proposed amendment strikes at that precedent by creating an obligation for the parties to confer and try to agree on the scope of the deposition and the designees to testify before or right after the deposition notice is served. The key language of the amendment is as follows:
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.
The drafters claim this conferral mandate would make the deposition process more efficient. For example, conferring about the identity of the designee could offer the prospect of a single-day “hybrid” 30(b)(6)/30(b)(1) deposition, rather than learning the witness’s identity the day of the deposition and potentially request a second day to complete the “hybrid” deposition. In addition, the conferral, in theory, could streamline the preparation process by allowing the noticing party to learn which witness will address which topic(s) listed in the deposition notice. However, a closer examination of potential unintended consequences of the amendment potentially conveys a different story.
By forcing the parties to confer over the identities of the corporate representative, the proposed conferral mandate interposes the deposing party within the decision-making process. This is true even where the deposing party has no idea who is who in a corporation. Critics have identified several potential negative consequences of the proposed amendment:
- Deposing Party May Be Incentivized to Request Multiple Witnesses. The advisory notes to Rule 30(d)(1) imposes a seven hour limit on the deposition of each witness. This is true even if the witness is designated as a corporate designee on multiple topics and is also a fact witness. However, nothing prevents the deposing party from requesting separate witnesses for the 30(b)(6) noticed topics if it means an additional seven hours of deposition testimony per witness.
- Deposing Party May Be Incentivized to Request C-Suite Executive Deponent. Because the conferral mandate injects the noticing party into the designee decision-making process, the noticing party may feel empowered to request a corporate executive merely to create leverage or harass. While the so-called APEX doctrine (and similar protections) should still protect against clear harassment of an executive, the conferral mandate may empower the plaintiff’s bar to overreach.
- Possible Increased Motion Practice. The Federal Rules are generally designed to streamline discovery. The proposed conferral mandate, however, could lead to increased motion practice in several ways. First, the parties may likely litigate what “good faith” means in identifying the witness. How should the corporation go about identifying a witness for purposes of the conferral process? Does the corporation need to justify the designee in the conferral process? Is identifying the witness enough? And is the corporation stuck with the witness it identifies in the conferral process? Second, the parties may litigate about who should be the designee before the deposition takes place. For example, even if the corporation identifies a witness, the noticing party may think another witness is better suited for noticed topic(s). This is true even if the witness is a capable designee and would be prepared to testify on the topic(s).
- Possible Increased Hybrid 30(b)(6)/30(b)(1) Depositions. If the noticed party learns the identity of the witness, the noticed party may prepare to depose the witness in his corporate and percipient capacities. Combining 30(b)(6) and 30(b)(1) testimony in a single deposition could lead to undesirable blurring of the capacity in which the witness was answering. Given the burden already imposed by Rule 30(b)(6) to prepare the witness on all knowledge available to the organization, adding to that burden the need to prepare the witness with regard to relevant matters within his or her personal knowledge but beyond the 30(b)(6) could be imposing an overload.
- Proposed Amendment Could Drive Up Discovery Costs. The conferral of course is itself a cost. But the conferral mandate may further require corporations to spend extra to prepare witnesses that the deposing party demands, even if that witness is not already the person most knowledgeable on the topic(s).
Whether the conferral mandate will be adopted is still unclear. The Advisory Committee met earlier in the year to discuss the proposed changes to Rule 30(b)(6). A subcommittee on the conferral mandate considered strong criticism by corporations and proposed removing the conferral mandate from the amendment. This does not mean the mandate will be removed from the amendment. The amendment (and the proposal to remove the conferral mandate) will still need to make its way through the Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court before the result is clear. Entities subject to Rule 30(b)(6) should watch this space closely for updates.