Trial Magazine

Next month, the Judicial Conference’s Advisory Committee on Civil Rules opens a six-month notice-and-comment period on proposed changes to Federal Rule of Civil Procedure (FRCP) 30(b)(6) on corporate depositions. The proposed amendment to 30(b)(6) would add a ­meet-and-confer requirement. It will be important for AAJ members to submit comments regarding the proposed amendment and caution the Advisory Committee against more extreme changes to the rule.

Two years ago, the committee received a far-reaching request to rewrite FRCP 30(b)(6). It then came up with a preliminary list of issues, including:

• allowing supplementation of testimony
• forbidding contention questions
• adding a provision for objections
• limiting the duration and number of 30(b)(6) depositions.

AAJ members representing diverse practice areas pushed back against this proposal last summer, explaining to the subcommittee charged with drafting the rule why the proposal put plaintiffs at a disadvantage. The subcommittee then adopted an approach that would require parties to meet and confer before or promptly after a subpoena is served. The requirement to confer is ongoing if necessary, and the organization must confer in good faith about the number and description of the matters for examination as well as the identity of each person who will testify.

Lawyers for Civil Justice (LCJ), an organization of corporate defense counsel, and the U.S. Chamber of Com­merce are adamantly opposed to providing the identities of witnesses ahead of time, claiming that it will prematurely tie companies’ hands. Further, LCJ strongly advocates for limits on the number of topics that can be covered in a deposition.

Since members of the Advisory Committee will hear from LCJ and other defense interests during the comment period, it is vital that the committee also receive comments, both verbal and written, from AAJ and members of the plaintiff bar. Watch our list servers for more information on the comment period.

Possible MDL rules. The Advisory Committee is also considering whether specific rules are needed for the operation of multidistrict litigation (MDL), as well as mandatory disclosure of litigation funding. LCJ is leading a group of defense interests pushing for special MDL rules. Many of LCJ’s proposals were originally part of H.R. 985, the “Fairness in Class Action Litigation Act,” which passed the U.S. House of Representatives in March 2017 but has since languished in the Senate Judiciary Committee. LCJ has a website dedicated to its MDL rules agenda at www.rules4mdls.com.

AAJ has a working group that meets to discuss the ongoing issues involved in the rulemaking. The subcommittee on MDLs—chaired by Judge Robert Dow—will be attending AAJ’s Annual Convention in Denver to learn more about MDLs from the plaintiffs’ perspective. For more information about the meeting, visit www.justiceannualconvention.org. If you would like to join our MDL list server, please contact me at susan.steinman@justice.org.

Changes to the hearsay residual exception. The Advisory Committee on Evidence Rules also recently concluded a six-month notice-and-comment period on Federal Rule of Evidence 807, the residual exception to the hearsay rule. The proposed amendment ensures that ­trustworthy evidence is admissible even if a specific exception to the hearsay rule is not applicable.

AAJ filed comments focused on making sure the revised draft provided clear language to parties and judges regarding the slightly more relaxed standard of the revised rule. The Evidence Committee accepted the majority of AAJ’s proposed changes. If the revised rule is approved, it will go into effect on Dec. 1, 2019.

For any questions about AAJ’s work on the federal rules, contact Amy Brogioli (amy.brogioli@justice.org) or me.

Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.