Trial Magazine

Never has so much work resulted in so little change. Since 2016, the Advisory Committee on Civil Rules, the policymaking arm of the Judicial Conference responsible for revising the Federal Rules of Civil Procedure, has been considering whether to amend Rule 30(b)(6) on taking corporate and organization depositions. Many AAJ members filed comments during the ­six-month formal comment period that ended February 15 on whether to add a formal meet and confer process to the rule. AAJ and many members actively opposed limiting the number of topics that may be discussed during a 30(b)(6) deposition and supported requiring disclosure of the witness’s identity.

At the end of the formal comment period—in a highly unusual move—the 30(b)(6) subcommittee that drafted the rule came up with two alternatives that the Advisory Committee considered at its April meeting.

Alternative 1. This option is a stripped-down version of the meet and confer rule that was discussed during the formal comment period:

• It does not contain limits on the number of topics. Language requiring conferral on the number and description of topics has been removed, limiting conferral to the matters for examination.
• The duty to confer is no longer ongoing.
• The draft also removed language regarding conferral on the witness’s identity.

Alternative 2. This contains the same provisions as Alternative 1 but also requires 30 days’ notice before taking the deposition and requires the organization to disclose the witness’s identity before the deposition. The time frame for disclosure could be three, five, or seven days. Because these two ­requirements were not part of the original rule, the 30(b)(6) subcommittee believed that an additional comment period may be warranted.

The subcommittee recommended the Advisory Committee approve a meet and confer process. Subcommittee members all supported Alternative 1, but some members believed that Alternative 2 is a better choice. Other members preferred no change to the rule over Alternative 1. AAJ filed comments in support of Alternative 2.

At its April meeting, the Advisory Committee had a robust discussion about which alternative to adopt and ultimately sent Alternative 1 with amendments to the Standing Committee for its approval. The amendments did not substantially alter Alternative 1. If the Standing Committee approves the draft at its June meeting, the proposed amendment would continue along the approval process and go into effect on Dec. 1, 2020.

The original 30(b)(6) proposal discussed during the informal comment period was extraordinarily broad. It contained provisions that would have allowed supplementation of testimony, limited the duration and number of 30(b)(6) depositions, forbade contention questions, and allowed deponents to object to questions. During the formal comment period, defense interests insisted that the proposed meet and confer draft amendment should limit topics and not require disclosure of the witness’s identity, even though many defense lawyers conceded that they regularly disclose witness identity at least one or two days before the deposition. The Advisory Committee removed these controversial provisions due to tremendous pushback from AAJ and our members.

The Advisory Committee also con-tinues to discuss topics for a ­multidistrict ­litigation rulemaking and proposed draft Social Security amendments, which would create new rules for district courts hearing Social Security Disability appeals.

AAJ welcomes suggestions for proposed amendments that can be recommended to the Advisory Committee on Civil Rules. If you have a suggestion, please contact me or ­Associate General Counsel Amy Brogioli (amy.brogioli@justice.org).

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.