January 15, 2021
Rule 30(b)(6) of the Federal Rules of Civil Procedure, which concerns the use of a deposition notice or subpoena directed to an organization, was amended in December 2020 to require that parties meet-and-confer prior to taking such depositions or, when relevant, that the party serving the subpoena and the subpoenaed third-party do so.1 Specifically, the amendment incorporates the following into the Rule: “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.”2 The amended rule also requires a subpoena to advise a nonparty organization of its “duty to confer with the serving party and to designate each person who will testify.”3
According to the Advisory Committee Notes for the 2020 Amendment, the Rule was “amended to respond to problems that have emerged in some cases[,]” particularly, “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.”4 Thus, a stated goal for the amended Rule is to promote “[c]andid exchanges about the purposes of the deposition and the organization’s information structure.”5 The Committee noted that the meet and confer “may clarify and focus the matters for examination,” and in turn “enable the organization to designate and to prepare an appropriate witness or witnesses[.]”5 The Committee further suggested that discussing “process” issues—such as the timing and location of the deposition, number of witnesses, matters on which each witness will testify, and ancillary matters—could make the depositions more “productive.”7
The amended Rule states that the parties must confer either “before or promptly after” service of the deposition notice or subpoena.8 The Committee noted that having a meet and confer before service “may be more productive,” and suggested that this could be accomplished “if the serving party provides a draft of the proposed list of matters for examination, which may then be refined as the parties confer.”9 The Committee further suggested that “the process for conferring may be iterative.”10 The amended Rule also requires the parties to confer in good faith. The Committee noted, however, that this “does not require the parties to reach agreement[,]” and “[i]n some circumstances, it may be desirable to seek guidance from the court.”11
In cases that anticipate Rule 30(b)(6) depositions early on, the Committee suggested that the parties discuss these topics in the Rule 26(f) conference and, in appropriate cases, “include reference to Rule 30(b)(6) depositions into the discovery plan.”12 The Committee clarified that the meet-and-confer requirement regarding matters for examination does not apply to a Rule 31 deposition because such a deposition relies on “written questions rather than a description with particularity about matters for examination.”13
In sum, practitioners need to be aware that the amendment to Rule 30(b)(6) added meet-and-confer requirements “before or promptly after” service of a Rule 30(b)(6) deposition notice or a deposition subpoena on a third-party organization. While some parties may have used such practices in the past, the new requirements are likely to change how many litigants approach and prepare for Rule 30(b)(6) depositions of organizations.
1See Fed. R. Civ. P. 30(b)(6) (amended 2020).
2Id. (emphasis added).
3Id. (emphasis added).
4Fed. R. Civ. P. 30(b)(6) Advisory Committee Notes—2020 Amendment.