By Monica McCarroll and Mathea Bulander

On December 1, 2020, new amendments to the Federal Rules of Civil Procedure went into effect.  Of particular interest is the amendment to Rule 30(b)(6), which added a new conferral requirement to the process, reflecting a continued commitment to the principles of Rule 1 regarding the “just, speedy and inexpensive determination of every action.”  Fed. R. Civ. P. 1. Rule 30(b)(6), as amended, directs that parties “must confer in good faith about the matters for examination.”  Fed. R. Civ. P. 30(b)(6) (2020).  Echoing the 2015 Amendments to the Federal Rules of Civil Procedure, the stated goal behind the new conferral mandate is straightforward: driving the parties to manage disputes and bring efficiency to the judicial process.  “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.”  Fed. R. Civ. P. 30(b)(6) Advisory Committee Note (2020).  Indeed, with this comment, the Rules Advisory Committee expressly encourages parties to disclose more about their respective positions to fulfill their ongoing duties to streamline discovery.  Unlike other discovery vehicles, depositions pursuant to Rule 30(b)(6) generally occur toward the end of the discovery period,¹ which should minimize concerns about such disclosures being incomplete or inaccurate.  The later timing of such depositions, however, should not discourage the parties from starting to address topics and witness(es) as early as the Rule 26(f) conference.  

The intent of the amendment aligns with the comprehensive effort undertaken in 2015 to reform the discovery process, but the textual changes to Rule 30(b)(6) are relatively modest:

Rule 30(b)(6) was originally promulgated in 1970 based upon a desire to create an even playing field for organizations in discovery.  The Notes of the 1970 Rules Advisory Committee reflect the committee’s desire to “reduce now encountered in determining, prior to the taking of a deposition, whether a particular employee or agent is a managing agent. . .” (and thus could speak on behalf of the company) and “organizations which find that an unnecessarily large number of their officers and agents are being deposed.” Fed. R. Civ. P. 30(b)(6) Advisory Committee Note (1970).  Before December 2020, the original Rule was amended only once, in 1971, to extend the Rule to the examination of nonparties.  The original text of the Rule erects a facially simple mechanism in which the requesting party sets out the topics for examination.  The responding entity can then designate the individual, or individuals, it so chooses to testify on those topics.  Over time, however, especially with complex civil matters, the depositions permitted under the Rule have become increasingly challenging, especially when seemingly exhaustive lists of topics for examination clash with inadequately prepared witnesses.  Counsel seeking to avoid such outcomes, with regular encouragement from the judiciary, have engaged in sometimes extensive conferral in order to narrow topics and ensure proper witnesses are prepared to testify as to those narrowed topics.  Thus, in practical terms, the simple addition of a conferral requirement merely codifies a practice familiar to counsel and organizations who regularly engage with Rule 30(b)(6) for all who seek depositions under the Rule. 

Ideally, parties drafting a notice of deposition under the Rule will consider the conferral requirement and attempt to narrow the scope of topics to those truly at issue in the matter and not duplicative of information covered by other discovery vehicles.  Likewise, parties responding to such a notice will consider the conferral requirement and propose reasonable alternatives to objectionable topics.  Such efforts on both sides will ensure the ensuing conferral is productive and help the parties identify any true disputes requiring court intervention.  As with the 2015 Amendments, the 2020 amendment to Rule 30(b)(6) encourages parties to focus on the merits of their clients’ respective positions and seek compromise where possible before turning to the Court for relief.  Critically, the success of the 2020 amendment to Rule 30(b)(6) will require a coordinated effort by the parties, their counsel, and the courts.