Powerhouse Points: Federal Rule 30(b)(6) Now Requires Parties to “Confer in Good Faith” for Corporate Representative Deposition Topics Before or “Promptly After” Notice or Subpoena

Written by Attorney Katlyn D. Krysan for the Fall 2021 Edition of Powerhouse Points,  A Quarterly Litigation Update.

Read the full issue here.

Powerhouse Points:

• Rule 30(b)(6) was amended to avoid overly long and ambiguous areas of inquiry for corporate representative depositions and inadequately prepared deponents.
• Serving parties and responding organizations now must “confer in good faith” about the matters for examination.
• Counsel should take greater care to prepare their corporate representatives for deposition, as the amendment leaves little room to argue that the topics were not clear prior to deposition.

The year 2021 has brought about a lot of exciting change. We said goodbye to the year of widespread lockdowns in the wake of a global pandemic, we witnessed the inauguration of the 46th president of the United States, we cheered on our favorite athletes in the Summer Olympics, and—you guessed it—we ushered in an amendment to Federal Rule of Civil Procedure 30(b)(6). 

Okay, perhaps the amendment to Rule 30(b)(6) is not all that exciting. But it is something that litigators and in-house counsel must keep in mind because it imposes new requirements on parties seeking to depose a corporation or other entity. At the end of 2020, Rule 30(b)(6) was amended to require that “[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.”¹  Additionally, “[a] subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify.”²  

The Advisory Committee Notes share that the amendment is intended to “respond to problems that have emerged” with “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.”³  The Advisory Committee hopes that “[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.”⁴ 

However, this “confer in good faith” requirement has less teeth than some commenters were hoping.⁵  An earlier draft of the proposed amendment included language requiring parties to confer in good faith not just on the “matters for examination,” but on both the “number and description of the matters for examination.”⁶  Removing reference to the “number and description” of matters for examination leaves the new meet and confer requirement vague as to what the parties are actually directed to confer about. It also leaves the amendment without reference to the “number” of matters for examination, which some hoped would encourage fewer areas of inquiry. 

The Advisory Committee Notes acknowledge that parties may not be able to reach agreements and, in those cases, “it may be desirable to seek guidance from the court.”⁷  But the amendment to Rule 30(b)(6) contains neither a requirement that counsel certify that they conferred in good faith about the matters for examination, nor any guidance on how such issues should be addressed if the parties cannot resolve them on their own. With the Advisory Committee weighing in to try and resolve issues posed by Rule 30(b)(6) depositions, it seems like a missed opportunity to provide a formal way to resolve those disputes short of moving for a protective order. 

Nonetheless, the amendment to Rule 30(b)(6) does require litigants to make some changes in their approaches to corporate representative depositions, and savvy practitioners will use those changes to their advantage. 

First, the plain language of the amendment requires litigants to confer in good faith with the responding organization and advise non-party respondents of the requirements of Rule 30(b)(6). But the amendment allows the conference to occur before or after notice or service of a subpoena. If you are unfamiliar with the organization’s information structure, a conference before issuing a notice or subpoena may lead to more fruitful topics. On the other hand, practitioners may find that a conference after an initial notice or subpoena may lead to a more targeted conference to determine the proper areas of inquiry. Practitioners should consider the new requirement to confer and weigh those choices before issuing a deposition notice as usual. 

Second, counsel for responding organizations should take even greater care to prepare their corporate representatives for depositions in light of the amendment. The meet and confer requirement will cut against any future argument that the areas of inquiry noticed were too vague to allow for adequate witness preparation. Responding organizations should use the meet and confer requirement to fully understand the matters for examination so that the proper deponent can be selected and prepared.  

Third, counsel should be sure to make a record of their conference, whether that is in the form of letters exchanged formally discussing the matters of examination (akin to Rule 201(k) correspondence for Illinois practitioners) or as follow-up confirmations after a meeting. Now that there is a requirement to confer in good faith, litigants should be prepared to demonstrate compliance in case of subsequent motion practice. 

For some practitioners, the amendment to Rule 30(b)(6) will have no affect on their practice. After all, the amendment simply requires litigants to collaborate in good faith in advance of corporate representative depositions, and some may already consider this to be best practice.⁸  But even if your practice was to confer with deponent organization regardless, Rule 30(b)(6) does offer some new assistance by requiring that the responding entity participate “in good faith.” Though we all would like to hope that counsel would always act in good faith, codifying that expectation could make a huge difference if you have a difficult adversary across the table.