Florida Bar Journal

A Review of the 2020 Amendment to Rule 30(b)(6): A Guide for Practitioners on How to Approach the New Corporate Deposition Process

The U.S. Supreme Court has approved an amendment to Federal Rule of Civil Procedure 30(b)(6) — the first-ever substantive amendment to this rule — which took effect on December 1, 2020. This amendment is the result of years of complaints by practitioners that the rule was fertile ground for abuse and circumvention of discovery rules designed to encourage proportionality and equity for all parties when conducting discovery in a civil case. Most commonly used for noticing the deposition of a corporate representative. Since its enactment in 1970, Rule 30(b)(6) has often fostered contention and gamesmanship by parties attempting to obtain otherwise impermissibly broad discovery from an opposing party corporation.

After years of deliberation, the Advisory Committee on Civil Rules recommended an amendment that would require opposing parties “to confer in good faith about the matters for examination” in a Rule 30(b)(6)-noticed deposition. However, discussing 30(b)(6) notice issues with opposing counsel is already considered a best practice and is often required by local federal court rules. Nonetheless, this amendment will encourage more meaningful negotiations and will likely generate successful resolution of issues without the need for court intervention than the prior informal practice. This article discusses the 2020 amendment to Rule 30(b)(6), ways the rule could be improved, and how practitioners can work around the rule’s shortcomings with best practices for anticipating and resolving disputes related to Rule 30(b)(6) depositions early in the litigation.

The History and Evolution of the Rule

Rule 30(b)(6) was created in 1970^[1] to address issues encountered by both plaintiffs and defense counsel when attempting to notice the deposition of a corporation.^[2] It allowed the noticing party to name an organization as the deponent, along with the matters for which that party requests examination, and then allowed the organization to choose which of its agents would appear and testify on its behalf.^[3] In short, Rule 30(b)(6) was adopted to strike a balance between the needs of those seeking discovery from a corporation and the needs of the corporation itself.^[4] Yet, over two decades after its promulgation, Rule 30(b)(6) became a “forgotten rule” as litigants often fail to utilize its ability to reduce the burden of litigation.^[5]

As the Federal Rules of Civil Procedure and litigation tactics evolved, Rule 30(b)(6) transformed from a “forgotten rule” to a key tool for parties looking to circumvent more restrictive discovery rules. Now, the Rule 30(b)(6) deposition notice has become an established part of the discovery process involving organizations.^[6] However, the rule has also transformed from an under-utilized discovery tool to a discovery tactic that “creates unfair, unworkable burdens on the responding parties and risks imposition of inappropriate sanctions, including preclusion of proof.”^[7] This most often occurs when litigants utilize Rule 30(b)(6) for abuse by attempting to circumvent new limitations on the number of interrogatories^[8] and the number^[9] and length of depositions.^[10]

The 2020 Amendment to the Rule

Amendments to Fed. R. Civ. P. 30(b)(6) have been proposed and considered by the Advisory Committee on Civil Rules in the past. In 1970, when the rule was first created, broad discovery tactics were rampant.^[11] Since then, there have been sweeping changes throughout the Rules of Civil Procedure controlling discovery.^[12] Remarkably, however, attempts to amend Rule 30(b)(6) have consistently failed, with no significant modifications to the rule since its adoption in 1970.^[13]

During its April 2016 meeting, the Advisory Committee on Civil Rules finally decided that a further examination of Rule 30(b)(6) was warranted.^[14] After considering public comment on proposed amendments and practitioners’ general experience under the rule, the committee noted a “pervasive concern” about practice under Rule 30(b)(6) and a plaintiff-defendant divide among opinions.^[15] The plaintiff’s perspective articulated an inability to prepare for corporate examinations. Defense concerns included over-reaching use of the rule, the risk of “gotcha” maneuvers, and the substantial cost of preparing a witness to testify.^[16]

In April 2018, the Advisory Committee published for comment a preliminary draft amendment to Rule 30(b)(6).^[17] The proposed draft amendment required the parties to “confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”^[18] As published, the new duty-to-confer requirement was meant to be iterative, including language that the conferral must “continu[e] as necessary.”^[19] The proposed amendment drew an enormous amount of attention from the bar, generally, and the public. Twenty-five witnesses appeared at hearings conducted by the Advisory Committee in Phoenix and 55 at the hearing in Washington, D.C. Additionally, some 1,780 written comments were submitted. ^[20] The Advisory Committee noted the divide between the plaintiff and defense bars with both sides having strong opinions about whether the proposed changes were beneficial and what other changes should be included. After reviewing and considering public commentary, the Advisory Committee recommended the adoption of a revised version of the preliminary draft of the rule, and recommending the following key changes: 1) deleting the requirement to confer about witness identity; 2) deleting “continue as necessary”; 3) deleting the directive to confer about the “number and description of” the matters for examination; and 4) adding a reference to Rule 31(a)(4) depositions to the committee note.^[21]

The final proposed amendment approved by the Advisory Committee retains only a new requirement: that the parties confer about the matters for examination, adding to the rule what was generally already considered a best practice.^[22] The Judicial Conference approved the proposed amendment and transmitted the recommendation to the U.S. Supreme Court.^[23] On April 27, 2020, the U.S. Supreme Court ordered that effective December 1, 2020, Fed. R. Civ. P. 30 be amended as shown below:

Rule 30. Depositions by Oral Examination

* * * * *

(b) Notice of the Deposition; Other Formal Requirements.

* * * * *

(6) Notice or Subpoena Directed to an Organization. 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.^[24]

The accompanying committee note clarifies that these changes were made to “facilitate collaborative efforts to achieve the proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1).”^[25] Consistent with that purpose, the new meet-and-confer requirement may be iterative, but does not require the parties to reach agreement and “[in] some circumstances, it may be desirable to seek guidance from the court.”^[26]

The Rule 30(b)(6) Amendment Analysis: The Good, How It Could Have Been Better, and a Proactive Approach to Resolving Disagreements

The key objective of the 2020 amendment to Rule 30(b)(6) is to “facilitate[] collaborative efforts to achieve the proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1).”^[27] Early on in the Advisory Committee’s consideration of amendments to Rule 30(b)(6), the discussion focused on the creation of a requirement for the parties to confer prior to the requested deposition. However, a meet-and-confer requirement is effective only when significant requirements are put in place to enforce its use in line with the proportionality goals stated in 2015. During the public comment period, many argued that the proposed amendment to create a meet-and-confer requirement would not create any meaningful change because this is already common practice. Indeed, all three Florida federal districts have a meet-and-confer requirement before bringing a dispute over a Rule 30(b)(6) notice to the court.^[28] Florida practitioners should use this new meet-and-confer requirement along with its stated purpose to improve the fairness and effectiveness of Rule 30(b)(6) depositions.

• The Good: No Proposed Meet-and-Confer Requirement Regarding Selection and Identification of Corporate Witnesses — One goal of amending Rule 30(b)(6) was to do away with the gamesmanship and disputes that often arise when a Rule 30(b)(6) deposition notice is issued. Yet, the Advisory Committee seriously considered including a requirement to meet and confer about the identity of each person the organization will designate to testify. This was included in the preliminary draft amendment published for public comment.^[29] Requiring an organization to confer about the identification of each person it designates to testify would imply that the party issuing the notice has a right to participate in that choice. Empowering a noticing party in this way would contradict the rule’s clear and unambiguous mandate that it is only the organization who must designate the witness to be deposed.^[30]

The identification of the designated corporate witness is wholly irrelevant to the purpose of a Rule 30(b)(6) deposition, which is to obtain the knowledge of the corporation, not that of any particular individual within the corporation. Accordingly, it has been settled for some time that Rule 30(b)(6) “does not permit the party issuing the notice to select who will testify on the organization’s behalf.”^[31] It should come as no surprise that this portion of the preliminary draft amendment resulted in harsh objections from around the country. This change would have inevitably invited rather than discouraged gamesmanship and abuse of the discovery process as a tool to challenge the designation of witnesses. If a noticing party has a particular need to hear from a certain employee or representative of an organization, they are always able to notice the witness in his or her individual capacity, even without the 2020 amendment. Thankfully, the Advisory Committee listened to the public’s input on such a requirement and removed it from the final amendment proposal.

• How It Could Have Been Better: Subject Matter or Topic Limitation on the Matters Designated to be Deposed and a Procedure for Objections — In the spirit of encouraging collaboration and efficient resolution of discovery disputes, many practitioners advocated for an amendment that would limit the scope of Rule 30(b)(6) deposition notices. Accordingly, the Advisory Committee’s preliminary draft amendment included a requirement to “confer in good faith about the number and description of the matters for examination.”^[32] This proposed amendment with a defined meet-and-confer requirement would have encouraged a much more meaningful process to clarify the scope of a 30(b)(6) deposition, allowing for better preparation by each side. Many practitioners even advocated for a more defined and focused amendment in conformity with the 2015 amendments to Rule 1 and 26(b)(1), such as limiting the number of topics and deposition time to specified limits unless compelling reasons can be shown otherwise. Such a limitation of topics and duration would be consistent with Rules 30 and 33, which set out similar limiting parameters for interrogatories and depositions.

Unfortunately, this defining language was excluded from the final amendment, which merely requires the parties to confer “about the matters for examination.”^[33] This vague description of the scope of the new meet-and-confer requirement is an improvement to the rule, but results in a much less productive requirement than what was initially envisioned by the Advisory Committee.

In light of the amendment’s purpose, it does not follow why the committee would reverse course and remove guidance encouraging discussion on the appropriate scope of examination in its final draft. Parties may still be encouraged to clarify the scope of examination from the language included in the committee note, stating that the amendment is in response to concerns “includ[ing] overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.”^[34] Rule 30(b)(6) depositions should not be utilized as a fishing expedition, and it is well settled that the use of corporate deponents to develop new theories is outside the proper scope and intent of Rule 30(b)(6).^[35]

Unfortunately, removal of this language from the text of the rule may invite gamesmanship from parties aiming to circumvent limitations on discovery. Compelling the parties to act in good faith to confer on the number and description of matters on which a witness may be deposed would have aided responding organizations. It is those organizations, after all, who are ultimately responsible for preparing witnesses, and it is they who bear the consequences if their representative witnesses are not prepared to address designated topics.^[36] Inclusion of a preemptive limitation on topics and duration of a 30(b)(6) examination would have assisted parties in addressing a persistent issue in Rule 30(b)(6) exams: the lack of proper remedy to address a verbose, voluminous, or overbroad notice when the parties are unable or unwilling to come to an agreement.

The most glaring omission from the 2020 amendment to Rule 30(b)(6) is its lack of procedure or guidance on how to object to an improper Rule 30(b)(6) notice. The current remedies for addressing a poorly constructed notice require filing a motion for protective order or motion to quash, neither of which are completely appropriate methods to resolve such a dispute. Florida courts in particular have been reluctant to become involved in 30(b)(6) disputes because “the Rule is intended to be self-executing and must operate extrajudicially.”^[37] This has left organizations in a grey-area with no defined judicial remedy for an inappropriate 30(b)(6) notice and no requirement that the parties come to an agreement on these issues prior to the deposition. The new, nebulous meet-and-confer requirement will likely facilitate and aid in the resolution of such issues prior to deposition, but that will inevitably not always be the case. This leaves organizations required to present witnesses without the ability to adequately identify and prepare them with the knowledge necessary to respond to the noticing parties’ designated topics. As the party ultimately responsible for and bearing the consequences of presenting an ill-prepared witness, organizations are left with no real remedy when dealing with a noticing party who fails to clearly define the scope of its requested matters for examination.^[38]

• How Practitioners Can Resolve the Shortcomings of Rule 30(b)(6) — Although the 2020 amendment could have been enhanced to create more significant improvements to Rule 30(b)(6), there is hope that the new meet-and-confer requirement will encourage meaningful discussions and resolution of disputes prior to a 30(b)(6) deposition. When conducting a meet and confer under the amendment, both parties will be required to confer in accordance with the 2015 amendments to the Federal Rules of Civil Procedure, which provide that the parties must employ the rule to secure the “just, speedy, and inexpensive determination of every action and proceeding”^[39] and obtain only as much discovery as is proportional to the needs of the case.^[40]

Parties should proactively work to identify and resolve issues early in the case. For example, the committee suggests referencing “Rule 30(b)(6) depositions in the discovery plan submitted to the court under Rule 26(f)(3) and in matters considered at a pretrial conference under Rule 16.”^[41]A best practice is to have conversations regarding the scope of the Rule 30(b)(6) deposition early in the case including a limitation of the topics and a process for objecting to the notice. These agreements can be memorialized in the case management order or other early case discovery plan. Requesting parties should have a good-faith basis for having filed their pleadings and, therefore, good understanding as to the nature of the allegations. Similarly, responding parties should appreciate what information they will require to substantiate their claims and defenses. Articulating what would be a reasonable number of deposition topics given the nature of the allegations and defenses should be manageable early in the litigation. Similarly, the parties should be able to reach an agreement on an objection procedure should aspects of the Rule 30(b)(6) notice be subject to objections. A best practice to consider is proceeding with the deposition subject to the objections, which may ultimately result in sufficient information to support the allegations and/or defenses.

Conferring on anticipated discovery issues early in a case allows both parties to work more efficiently at planning and preparing for all pretrial matters. Even though the new meet-and-confer requirement is not continual and does not require the parties to come to an agreement, it should discourage parties from outright refusing to resolve disputes in good faith. In sum, when opposing parties are able to anticipate and are encouraged to resolve discovery disagreements early, everybody wins.

This column is submitted on behalf of the Business Law Section, Leyza Florin Blanco, chair, and Robert Charbonneau, editor.