Depositions of Corporate Representatives under the 2020 Amendment to Rule 30(b)(6)
The parties now must confer before any side believes there is a dispute and regardless of whether ultimately there is a dispute.
Rule 30(b)(6) of the Federal Rules of Civil Procedure sets forth the requirements for noticing the deposition of a corporation, partnership, limited liability company, or other entity. Historically, Rule 30(b)(6) did not impose procedural hurdles other than a requirement that the noticing party “describe with reasonable particularity the matters for examination.” Even so, that requirement led to litigated disputes for many years. Discovery disputes about whether the noticing party described the matters precisely enough and disputes over the sufficiency of a representative’s preparation have strained judicial resources and, all too often, have delayed courts and the parties from reaching the merits of a case.
Effective December 1, 2020, Rule 30(b)(6) was amended to address these challenges, including problems such as disputes caused by “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.” See Fed. R. Civ. P. 30 advisory committee’s notes to 2020 amendment. The amended rule requires 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 amendment further requires that a subpoena include language to “advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify.”
The Amendment to Rule 30(b)(6) Imposes an Obligation to Confer Before Any Dispute Emerges
Consultation before raising discovery disputes over depositions is not new: It has long been required under the Federal Rules, in rules other than Rule 30. For instance, Rule 26(c) provides that, before a movant may obtain a protective order related to deposition topics or deponents, the movant must have “in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.” Fed. R. Civ. P. 26(c)(1). Similarly, prior to moving to compel, which may raise disputes about seeking deposition testimony from specific deponents or in connection with certain topics, a movant must have “in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1).
The amended language of Rule 30(b)(6), however, goes a step further and requires that consultation occur either “[b]efore or promptly after the notice or subpoena is served.” Thus, the parties now must confer before any side believes there is a dispute and regardless of whether ultimately there is a dispute. The amendment added this new requirement in the hope that “[c]andid exchanges about the purposes of the deposition and the organization’s information structure may clarify and focus the matters for examination and enable the organization to designate and to prepare an appropriate witness or witnesses, thereby avoiding later disagreements.” See Fed. R. Civ. P. 30(b)(6) advisory committee’s notes to 2020 amendment.
Such discussions, of course, are likely to be most productive when they take place before a notice or subpoena is served, such as by exchanging drafts of the matters for examination. See id. Often, however, circumstances or strategies may preclude having these discussions before serving the notice. Even so, that does not relieve the noticing party and deponent from conferring in good faith “promptly after the notice or subpoena is served.” See Fed. R. Civ. P. 30(b)(6). In short, pursuant to the amended rule, lawyers must take this necessary step of consulting with the receiving party in all instances before the deposition.
Trial Courts Have Recently Denied Relief for Noncompliance
In the less than a year since the amendment took effect, trial courts have denied some motions because the parties did not comply with Rule 30(b)(6)’s requirement that the noticing party and deponent confer in good faith about the matters for examination. See Settlemyer v. Borg-Warner Morse TEC, LLC, No. 1:19 CV 344 MR WCM, 2021 WL 66411, at *2 (W.D.N.C. Jan. 7, 2021) (denying a motion to compel as premature where the parties had not satisfied procedural requirements under Rule 30(b)(6)); Dagon v. BNSF Ry. Co., No. 19-CV-00417-JPG, 2021 WL 793990, at *2 (S.D. Ill. Mar. 2, 2021) (denying a defendant’s motion for protective order to quash Rule 30(b)(6) deposition notice and expressing concerns regarding whether a party conferred in good faith); Nevilles v. Waffle House, Inc., No. 1:19-CV-5782-MHC-JKL, 2021 WL 3417942, at *2 (N.D. Ga. Mar. 8, 2021) (similar). Although these decisions have relied, in part, on the obligation to confer in good faith pursuant to other Federal Rules of Civil Procedure (such as Rules 26 and 37), these cases demonstrate the trend in trial courts to strictly enforce the additional obligations now imposed by Rule 30(b)(6) relating to corporate deposition notices.
Rule 30(b)(6) Imposes an Obligation to Confer in Good Faith, Not to Agree
The new meet-and-confer requirement in the amended Rule 30(b)(6) is an obligation to “confer in good faith,” not a requirement to “reach agreement.” Fed. R. Civ. P. 30(b)(6) advisory committee’s notes to 2020 amendment. So long as the parties have satisfied their obligation to confer in good faith regarding the matters for examination, Rule 30(b)(6) does not preclude either side from requesting relief from the trial court when the parties reach an impasse. Indeed, the advisory committee’s notes to the 2020 amendment note that “[i]n some circumstances, it may be desirable to seek guidance from the court.” Thus, litigants should not view the amendment to Rule 30(b)(6) as a barrier to obtaining relief from the court, provided that they have satisfied the necessary prerequisites before seeking relief.
The 2020 amendment may not reflect a big change to many practitioners who already had a practice of promptly meeting and conferring over deposition notices under Rule 30(b)(6). However, whether it was part of an attorney’s regular practice previously or not, a well-planned and thoughtful 30(b)(6) deposition practice must now incorporate a timely meeting with counsel for the noticed party (or nonparty) in order to avoid unnecessary discovery disputes, as well as permit court involvement if it becomes necessary.