Tom O’Connor wrote about it last year.  And, then Tom and I covered it on a webcast.  Now, the US Supreme Court (SCOTUS) has adopted an amendment to the Federal Rules of Civil Procedure (FRCP) for Rule 30(b)(6) and transmitted it to Congress.

In case you forgot, FRCP 30(b)(6) permits a party to notice or subpoena the deposition of “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.”

According to the Civil Procedure & Federal Courts Blog (with hat tip to the UF Law E-Discovery project), SCOTUS adopted the amendment to Rule 30(b)(6) and transmitted it to Congress on Monday.  The amendment would add to Rule 30(b)(6) a duty to confer about the matters for examination.  Here is the revised text for Rule 30(b)(6) (one word that was deleted shown in red, additions in bold):

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 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.

If you read Tom’s white paper or saw our webcast, you know that, during the public comment period, over 100 organizations (including Ford, Microsoft, and Comcast) submitted a joint public comment letter to the Committee on Rules of Practice and Procedure objecting to the new language.  These organizations voiced the following concerns:

• That an organization should be able to retain the exclusive right to identify Rule 30(b)(6) witnesses and the subject matters these witnesses will testify about without input from opposing counsel;
• That the rule needs to provide more guidance. For example, the language requiring counsel to confer about “the number and description of the matters for examination” is unclear and fails to lay out with specificity what the parties need to address prior to the deposition;
• And, that an amendment forcing the parties to confer would increase, rather than decrease, discovery disputes.

The Committee felt, however, that the amendment would not increase discovery disputes, but would instead reduce these issues and streamline litigation. Their belief was that having the parties confer with each other prior to the deposition may help bring issues to the forefront so the court can handle the matters promptly rather than the current method of interrupting a deposition or even a trial to handle arguments about testimonial issues then.

Looks like the Committee got the last word on the issue!  At least for now.  🙂

So, what do you think?  Do you think parties should confer on 30(b)(6) depositions or do you think that an organization should be able to retain the exclusive right to identify Rule 30(b)(6) witnesses without needing to confer?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.