Federal Rule 30(b)(6) amended to require meet-and-confer process

When your organization is served with a Federal Court deposition subpoena, Federal Rule 30(b)(6) requires your organization to confer with the serving party.

Rule 30(b)(6) of the Federal Rules of Civil Procedure governs deposition notices and subpoenas to an entity, such as a corporation, partnership, association, or government entity.  This Rule permits a party to take the deposition of the “person most knowledgeable” of that entity, a natural person who can speak on behalf of the entity.

Frequently, Rule 30(b)(6) deposition notices or subpoenas contain a list of topics upon which the designated person will testify.  These topic lists have been the source of many discovery disputes. (See, e.g. DarbeeVision, Inc. v. C&A Mktg., Inc., No. CV 18-0725 AG (SSX), 2019 WL 2902697, at *1 (C.D. Cal. Jan. 28, 2019)).

In an effort to curb discovery disputes before the court, Rule 30(b)(6) was amended in April 2020 to include the following language, in bold:

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 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 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.

Fed. R. Civ. Pro. 30(b)(6)(emphasis added).

This amendment will become effective December 1, 2020.  The Advisory Committee Notes to the 2020 Amendment explain that Rule 30(b)(6) was amended to address and respond to problems with topic lists, such as “overlong or ambiguously worded lists of matters for examination.”  Relatedly, the amendment also addresses complaints of “inadequately prepared witnesses,” likely a result of the ambiguous topic lists.  As noted by the Advisory Committee, “Candid 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.”

The Committee Notes suggest that parties should confer “either before or promptly after the notice or subpoena is served,” (emphasis supplied), and encourages a continuation of the meet-and-confer process as warranted as the parties further refine the topics to which the 30(b)(6) designee may testify.  The Committee Notes also suggest that if a party knows early in the case that it will need a 30(b)(6) deposition, then that party should use the early planning tools of the Rule 16 pretrial conference and the Rule 26(f) conference to begin these discussions with the court and opposing counsel.

Courts will likely look to the language of the Committee Notes to determine whether parties have sufficiently complied with the meet-and-confer process before seeking judicial intervention.