The Proposed Meet and Confer Requirement to Rule 30(b)(6) Helps, But Falls Short
Rule 30(b)(6) depositions of organizations are a guessing game. The noticing party must guess as to (or discover during the course of the deposition) the competence of the designated witness to address the matters for examination. The organization must guess as to what exactly the matters seek to cover, and how to prepare one or more witnesses to address them. On October 23, 2019, the Judicial Conference of the United States took some of the guesswork out of the process, transmitting to the Supreme Court for consideration a proposed amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure (approved by the Judicial Conference), requiring for deposition notices to an organization, most often a corporation, that "[b]efore 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." The proposed new amendment would take effect on December 1, 2020. The Judicial Conference rejected an additional meet and confer requirement regarding the "identity of each witness the organization will designate to testify," which it published for comment.
In rejecting the latter proposal, the Judicial Conference stated it received "[v]ery strong opposition," as "[w]itnesses emphasized that the case law strongly supports the unilateral right of the organization to choose its witness, and asserted that the requirement that the organization confer in 'good faith' would undercut that case law." The conclusion it seems was that a meet and confer requirement would not, or should not, make a difference to the designation. But that runs counter to the spirit of a meet and confer requirement, and fails to appreciate the frequent incongruity between the knowledge of the organization and the understanding of its attorney. While the organization may have a unilateral right to decide its witness, there is nothing undermining in assuring that it exercises that right through a moderately rigorous testing of whether the proposed designee is adequately capable to testify, or whether another person is better suited. Indeed, most attorneys can relate to the rather common 30(b)(6) experience of the designated witness identifying other persons who are better suited to respond fully to questions posed by the examining attorney. And identifying those individuals in advance may cause an examining attorney to change the matters for examination, and depose the non-designated witness by notice or subpoena.
While the new proposed amendment is likely to facilitate that discussion regardless of the express rejected additional meet and confer requirement, placing the obligation on the organization would have helped better streamline the deposition process under Rule 30(b)(6). Hopefully the Judicial Conference will reconsider the additional requirement in coming proposals.
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