Friday, June 11, 2021

Mastering Rule 30(b)(6) and the New Confer-in-Good Faith Requirement for Construction Corporate Representative Depositions

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. 

The rule does not mandate specific designees be decided upon. In fact, it was considered and rejected in a proposed amendment. However, the topics and/or areas of inquiry continue to require painstaking specificity. Conferral topics may include date and time of the deposition, duration, method (in person, remote, video, etc.), topics and specification. 

Parties receiving a notice or subpoena should:
  1. Meet early and actually confer;
  2. Focus on specifying the noticed topics to eliminate confusion and ambiguity;
  3. Confirm that proper entity was selected; and
  4. Designate appropriate deponent(s).
Is this the only option to gather information about an organization? No; this is one tool in your toolbox. 30(b)(6) depositions do enable litigants to nail down the opposition’s position and to determine defenses and theories. However, this tool is not a case determinant. 

Furthermore, the amendment does not mandate that parties must reach an agreement—it requires good faith efforts to confer. Many proponents for additional rule components vehemently opposed the revisions arguing that although intentions are good, the amendment is not going to change much at all. However, the goal was to avoid disputes about “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.” 

The rule change is an attempt to reduce one aspect of discovery that can result in satellite litigation. Lawyers defending corporate deponents should use this new arrow in their quivers to shoot down overly broad topics. For those noticing corporate depositions, this rule change underlines what should have been the practice previously – sharper, narrower topics are better topics to get binding testimony for use at trial.

If you are interested in further discussion about this topic, please join the authors on June 16, 2021, for the Webinar CLE sponsored by the Forum called “Mastering Rule 30(b)(6) and the New Confer-in-Good-Faith Requirement.” Just click the link to sign up. 

Author Anthony D. Lehman is a partner with the Atlanta, GA office of Hudson Lambert Parrott Walker, LLC. He is licensed in Georgia, Florida, and Alabama and is Board Certified in Construction Law. He is a past chair of Division 1 and is a member of the ABA Forum on Construction Law’s Governing Committee.

Author C. Jade Davis is an associate attorney with the Sarasota, FL office of Shumaker, Loop & Kendrick, LLP. She is experienced in representing manufacturers of building products and engineers in all phases of construction litigation and trial.

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