The recent amendment, effective December 1, 2020, to Federal Rule of Civil Procedure 30(b)(6), provides:
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 non-party organization of its duty to confer with the serving party and to designate each person who will testify.
Practitioners knew some form of change would come due to the absurd amount of stonewalling and abuse to minimize the impact of a corporate representative deposition as well as the contentious gamesmanship to obtain impermissibly broad discovery from an opposing party. For many, 30(b)(6) was kicked to the side or treated as the “forgotten rule.” (Mark A. Cymrot, The Forgotten Rule, 18 Litig. 3 (1992) (discussing the failure of litigants to use Fed. R. Civ. P. 30(b)(6) for the 20 years after its promulgation).) In the context of construction litigation, which is usually highly contentious, complex and multi-faceted, the conferral requirement provides litigants another opportunity to streamline issues in order to focus on the heart of the matter.
Litigants can either embrace the rule by maximizing the opportunities conferral brings or continue to deal with disputes and motion practice premised upon inadequately prepared witnesses and ambiguous topics incapable of putting any reasonable person on notice regarding the information sought. For many construction lawyers, the amendment is not a shocking change from best practices as construction law continues to be one of the more collaborative areas in litigation. But the amendment did send waves throughout the legal community since it has not had any significant modifications since its adoption in 1970.
Plaintiff’s expressed concerns regarding their inability to prepare for corporate examinations hindering their success in utilizing 30(b)(6) and defense counsel expressed similar discontent regarding the overreaching of the rule, “gotcha” moves, the incredible expenses of preparing designees, and the similarly high expense of investigating which designee or designees should testify as to each topic noticed or provided. 30(b)(6) depositions are binding; therefore, preparation, understanding the topics and proper witness designation is key.
The amended rule instructs parties to confer concerning the matters of examination, but it does not preclude further matters for conferral. Therefore, the sky is the limit. After six months in the wild, what we suspected to occur is true—the good, the bad and the ugly. Productive construction related 30(b)(6) conferences have enabled parties to identify issues and focus on what topics the deposing party intends to cover, why each side believes the matters of examination are meritorious or not, and alternatives to the deposing party’s specifications in pursuit of resolution of the dispute. Uncooperative parties have certified intentions and efforts to confer without success.
- Meet early and actually confer;
- Focus on specifying the noticed topics to eliminate confusion and ambiguity;
- Confirm that proper entity was selected; and
- Designate appropriate deponent(s).