Significant Change to Federal Court Rule Impacts Corporate Defendant Depositions

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Significant Change to Federal Court Rule Impacts Corporate Defendant Depositions

Robert D. Brownson
Brownson, PLLC

Effective December 1, 2020, the Rule that governs depositions of persons designated by
corporations or other organizations to appear under oath and provide testimony to bind the
corporation, Rule 30(b)(6) of the Federal Rules of Civil Procedure, was amended to incorporate a
new Meet-and-Confer requirement among the parties before the deposition takes place.

The change is significant and, if utilized properly by counsel for corporate deponents, will
streamline both preparation, and the deposition itself.

Prior to December 1, 2020, Fed. R. Civ. P. 30(b)(6) provided in relevant part:

Notice or Subpoena Directed to an Organization. In its [deposition] notice [to a
corporate party] or subpoena [to a non-party], a party may name as the deponent a …corporation,
a partnership, an association, a governmental agency, or other entity, and must describe with
reasonable particularity the matters for examination. The named entity must then designate one
or more officers, directors, or managing agents, or designate other persons who consent to testify
on its behalf…

Preparation of the designated witness or witnesses is a daunting task. The witness(s) must be
educated to answer on behalf of the corporation deponent in response to each of the designated
topics whether, or not, the information is within the personal knowledge of the witness(s). Since
the “deponent” is the corporation itself, the person designated is essentially acting as a
spokesperson. It is not acceptable to have that spokesperson appear and claim he/she is without
knowledge on a designated topic. Indeed, Courts have routinely, often severely, sanctioned such
conduct. Only if the corporation itself is without information -upon reasonable and diligent
inquiry- can such an answer be given.

In Rule 30(b)(6) depositions, the two key elements which have caused the most difficulty are:
1) The “reasonable particularity” of the notice, and,
2) locating and educating the witness.

The December 1, 2020 amendment is designed to address these issues. Its significance lies in the
fact that it is the first substantive amendment to Rule 30(b)(6) since its introduction 50 years ago
in 1970. The amendment imposes the obligation for counsel for the parties to meet and confer
before the deposition is taken to address these, and any other, issues up-front. It provides,
“Before or promptly after the notice or subpoena is served, and continuing as necessary, the
serving party and the organization must confer in good faith about the matters for examination.”

There is little doubt that the new requirement will be enforced strictly, and counsel should not
take it lightly. For example, in the District of Minnesota, it has been the practice of the
Magistrate Judge on a case to utilize the Local Rule 16.2 Initial Pretrial Conference and
Scheduling Order to strictly enforce a similar meet-and-confer requirement with respect to discovery disputes by imposing an in-person or telephone requirement to avoid a perfunctory
correspondence or e-mail exchange. See, Local Rule 7.1(a). The same may now be expected
under the new Rule 30(b)(6) amendment.

Brownson, PLLC has long experience in handling Rule 30(b)(6) deposition preparation for
corporate deponents and defending the deposition. This includes a unique, proprietary deposition
preparation system in order to effectively educate Rule 30(b)(6) witnesses. It is our view that the
new amendment will make that process, and the deposition, if not easier, less fraught with