A proposed new change to the Federal Rules of Civil Procedure governing depositions has companies and their defense counsel up in arms.
The proposed amendments to Federal Rule of Civil Procedure 30(b)(6) would require both parties to confer “about the number and description of the matters for examination and the identity of each person the organization will designate to testify.” It would mark the first substantive change to Rule 30(b)(6) since its creation in 1970.
Current law allows companies to choose witnesses that speak on their behalf in a deposition. In a joint letter to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, 138 companies strongly urged rejection of the proposed rule change.
“Imposing such a requirement would provoke time-consuming and costly new discovery disputes as counsel and courts struggle to square the change with the well-settled and well-grounded law that the responding organization has complete discretion to select the 30(b)(6) witnesses that will speak for the organization,” the letter states. The new rule as proposed effectively would give the opposing party the right to influence the choice of the witness(es).
“Moreover, the addition of a conferral requirement regarding ‘the number and description of the matters for examination’ does not provide meaningful guidance or direction as to what precisely is to be discussed,” the letter continued. “Additionally, the “continuing as necessary” requirement is vague and undefined, and will spawn further controversy—in particular, the length of time in which the parties shall continue to confer and who will decide how long the conferral shall last and what constitutes ‘as necessary.’ ”
Among the cross-sector of companies that have signed the letter include Altria, Bank of America, Exxon Mobil, General Electric, General Motors, Bayer, Eli Lilly, and Novartis Pharmaceuticals. The 138 companies join dozens of other in-house counsel and external corporate defense counsel in their opposition of the rule change.
In a separate, nine-page comment letter, Ford Motor Company argued that proposed Rule 30(b)(6) changes “do not address the long-standing problems with the rule. Worse, by including a conferral requirement about witness identity, the proposed rule changes would substantially interfere with an organization’s existing right to identify its own witnesses, thereby giving rise to a whole new category of discovery abuses and disputes.”
“Creating rules, as the Committee proposes to do, that ignore the tactical leverage sought and exploited by the propounding party would solve nothing,” Ford Assistant General Counsel Beth Rose and Counsel Brittany Schultz wrote. “Adding a requirement that the noticing party has a say in the person who speaks for the producing party just compounds the problems already inherent in Rule 30(b)(6) depositions.”
The Committee considered the amendment at a public hearing in Washington, D.C. on Feb. 8. The public comment period is still open. Comments are due no later than Feb. 15.