Proposed changes to FRCP 30(b)(6) (deposition of a corporate representative) and how they may affect you.

Rule 30(b)(6) of the Federal Rules of Civil Procedure has long been both a blessing and a curse for litigators. It allows for a deponent corporation, partnership, association, or government entity to identify an individual or a number of individuals to testify on the entity’s behalf. That individual, when testifying, is speaking for the entity on whatever subject he or she has been designated (by the deponent) to address.

Currently, the deponent organization has no obligation to notify the party seeking to depose it under FRCP 30(b)(6) who will be addressing each topic – it merely must put someone in the witness chair at the designated time.

The proposed changes to Rule 30(b)(6) (found here), would require “the serving party and the organization” 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.” This must occur “[b]efore or promptly after the notice or subpoena is served, and continuing as necessary.”

One view is this will prevent the seating of unqualified or unprepared 30(b)(6) witnesses, and will also streamline the 30(b)(6) process by requiring the parties to discuss the “number and description of the matters for examination.” The more information that is shared, in good faith, well in advance, the less temptation and opportunity there is for litigation mischief. The parties can better understand the topics, and no one will be confused (or sandbagged).

Conversely, requiring the “identity of each person the organization will designate to testify” “[b]efore or promptly after the notice or subpoena is served” creates a number of problems for corporate defendants. Staffing changes, but litigation often languishes. A company’s CIO when a 30(b)(6) notice is first served may have moved on 10 months later when the parties get around to taking the 30(b)(6) deposition. The company (and witness) are required to spend time and resources for a deposition in which that witness may not be called. Will changing the designation of a witness be grounds for motions practice and bickering? By allowing the party seeking discovery to involve itself in the selection of 30(b)(6) witnesses, some fear that the proposed rule changes will open the door “to gamesmanship and mini trials over witness selection.”

The deadline for submitting written comments on the proposed changes is February 15, 2019. Further (and much more detailed) commentary on the proposed changes can be found here.