Effective December 1, 2020, the United States Supreme Court adopted an amendment to Rule 30 of the Federal Rules of Civil Procedure. Specifically, the amendment is to Rule 30(b)(6), which pertains to notice of deposition and subpoenas directed at organizations. The amendment adds language requiring parties to meet and confer prior to or shortly after the notice of deposition or subpoena is served upon the organization. While the amendment’s goal is to make the process of deposing a witness pursuant to Rule 30(b)(6) more efficient, some background is required to properly appreciate the impact of this seemingly minor change.
While the average person may think of a deposition as involving an individual person testifying based on their own experience or perception of an event, often key players in litigation are business organizations rather than people. Because of this, the Federal Rules of Civil Procedure actually allow a party to a lawsuit to take the deposition of an organization rather than the individual people that encompass it. Since a business organization cannot physically speak for itself, the organization will designate someone or a group of people, known as “corporate designees,” to speak on its behalf. The crucial concept is that these designees are not testifying as themselves but as the corporation. While this may seem like the kind of granular distinction only a lawyer could make, it actually has important implications. Chiefly, corporate designees are “on the hook” to know the answers to questions they are asked—in other words, John Smith from Human Resources is allowed to not know what his company-specific HR policy is on a particular area; however, it would not be proper for corporate designee John Smith to testify the same.
Of course, the corporate designee is still human and therefore has a limited amount of bandwidth; accordingly, the Rule requires the party seeking to depose a corporate designee to provide a list of topics to be addressed. This allows the organization to know who is a solid choice to serve as a corporate designee and if it should chose more than one person (e.g., John Smith as the corporate designee for the HR issues, but Jane Doe as the corporate designee for IT issues). This is where, under the old Rule, there were challenges for both sides that led to inefficiency and often confusion.
From a strategic perspective, the party taking the organizations deposition wants that list to be construed as broadly as possible and the organization wants the list to be construed as narrowly as possible. Sticking with the HR example, if the corporate designee is asked a very tough question on an HR policy, the organization will want to argue that the question is beyond the scope of the list of topics given beforehand. The party taking the deposition will obviously argue that the topic is included. Obviously, tougher challenges arise in practice than this oversimplified example.
The former Rule 30(6)(b) generated too much incentive for the party taking the deposition to craft a very broadly worded and ambiguous list. In some cases, the goal became to cover as many topics as possible without tipping off the organization to the specific questions that were going to be asked. While this is an understandable strategy, it is also incredibly burdensome on the organization as it would have to review an enormous amount of documents with its corporate designee to prepare for the deposition. In addition, the organization might need to designate more than one person as designees to cover a range of topics. However, by doing so, they subjected the entity to more days of deposition, which most organizations will be loath to do. The amended to Rule 30(b)(6) adds the language, “[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.” And, the explanatory comments to the Rule make the language’s intent clear: “[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.”
It many cases, it will be known from the beginning that a corporate designee deposition will be needed, and in those cases (as the explanatory comments point out) the discovery conference governed by Rule 26(f) is the logical place to have this discussion. However, in other cases where the need is not initially apparent—or if a third-party organization is subpoenaed—the party seeking the deposition will need a plan for an appropriate meet and confer. The Rule as amended puts a greater, but reasonable, burden on both sides of the dialogue to engage in a meaningful good faith discussion on the scope and substance of a corporate deposition and it discourages unnecessary gamesmanship.