January 18, 2021

Volume XI, Number 18

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January 15, 2021

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New Conferral Requirement for Rule 30(b)(6) Depositions Effective December 1

The last month of the year brought changes to Rule 30 of the Federal Rules of Civil Procedure, specifically Rule 30(b)(6), governing deposition notices to organizations. The rule was amended, effective December 1, 2020.

Substantive Change and Purpose

The Amendment requires that the parties—before or promptly after service of the notice or subpoena for the deposition—confer in good faith about “the matters for examination.” The Rule recognizes that multiple conferences may be required to satisfy the new guidance, however, it does not establish a timeline for completing the meet-and-confer process. Based on feedback on the preliminary proposed amendment, the adopted changes purposely do not require that the parties reach agreement on the organization designee or matters that will be covered, but merely require that they confer in good faith. The named organization ultimately retains its right to select its own designees.

The Advisory Committee notes that the Amendment is intended to facilitate collaborative efforts and candid exchanges about discovery goals and organizational information structure in order to reduce difficulty in identifying the right person to testify and materials needed for preparation. The change is aimed at resolving issues with overly long or ambiguous lists of matters for examination and inadequately prepared witnesses.

Implications on Product Liability Litigation

The Amendment likely will provide the advantages predicted by the Advisory Committee, but with those advantages come potential risks. Particularly in the class action or mass torts sphere where multiple 30(b)(6) depositions are common, the new conferral requirement may provide an opportunity for the party issuing the deposition notice to use the conferral process to its advantage.

Conferral may provide a path for the issuing party to attempt to dig for information prior to a deposition. A party could use such additional information to make a 30(b)(6) deposition more personal to the designated representative. In addition, issuing parties may attempt to negotiate for more deposition opportunities, potentially disproportionately increasing the burden to the organization. Issuing parties also may have an opportunity to influence an organization’s ability to select a representative witness. While the Amendment preserves an organization’s right to choose its own witness or witnesses, introducing the conferral requirement could lead to disagreement, efforts by the issuing party to require the organization to designate multiple witnesses, and motion practice encroaching on the organization’s right to choose its witness(es). An issuing party may attempt to argue whether a conference was in good faith based on an organization’s designation of a witness. Furthermore, the new meet-and-confer obligations may create clearer motion to compel opportunities if an organization’s witness is not prepared for a topic or topics documented as part of a meet-and-confer discussion.

The Amendment does not provide a clear timeline for when the conferral process must conclude. This leaves the door open for last-minute requests to confer that could be used to modify the substance of a deposition or merely to cause harassment or delay in the deposition.

While the Amendment to Rule 30(b)(6) was intended to achieve proportionality and appears widely supported (as it is likely documenting a process already taking place in the majority of cases), time will tell what advantages or obstacles the new conferral requirement will introduce. Regardless, organizations should take note of the change today, and be prepared to use the change to proactively push back against the abuse of Rule 30(b)(6) depositions in class actions and mass tort matters.

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© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 339
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About this Author

Teresa Griffin Product Liability Lawyer Faegre Drinker Law Firm
Partner

Teresa Griffin is a commercial and trial litigator defending clients in product liability and mass tort litigation, advising clients in commercial shareholder disputes, and handling complex individual and family disputes and appeals.

Teresa has represented product and medical device manufacturing clients, and has experience with clients in agribusiness. She has guided and advised clients in a wide variety of lawsuits and alternative dispute resolution proceedings, including:

  • Medical device defense
  • Multidistrict litigation and coordinated proceedings
  • ...
317-237-1117
Kip S.M. McDonald Product Liability Lawyer Faegre Drinker Law Firm
Partner

Kip McDonald defends and counsels clients in product liability, multidistrict and mass tort litigation matters nationwide. He collaborates with clients to develop defense strategies and manages the details, from pre-suit negotiation, pretrial proceedings — including international e-discovery — to expert discovery and trial.

Medical Device Advocate

Kip has particular knowledge in the medical device field and counsels clients on marketing materials and regulatory submissions, such as medical device reporting and FDA communications related to adverse events and quality system...

+1 317 237 1485
Jenna Lawson Products Liability Lawyer Faegre Drinker Law Firm
Associate

Jenna Lawson helps clients prevent and resolve product liability disputes. She defends companies in product liability litigation around the country, including federal multidistrict litigation (MDLs).

During law school, Jenna served as a legal intern for the Maurer School of Law’s Nonprofit Legal Clinic, where she assisted Indiana nonprofits with formation and compliance issues. She also served as a summer associate with Faegre Baker Daniels and a legal intern in the Elkhart County Office of the Prosecuting Attorney.

Personal Interests

Jenna is an avid runner, baker,...

1 317 237 1320
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