A proposed amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure raises the potential for problematic consequences that may lead to more discovery disputes, such as a new discovery obligation to discuss the selection of witnesses.
While the proposed amendment may ratify current best practice – to discuss in advance of the deposition potential issues that may arise regarding the proposed topics – the addition of a wholly new discovery obligation to discuss the selection of witnesses likely will result in more problems than it solves.
The amendment put forth by the Advisory Committee on Civil Rules says that “[b]efore 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 number and description of the matters for examination and the identity of each person the organization will designate to testify.”
Rule 30(b)(6) permits a party to take the deposition of an organization through persons designated to testify on its behalf. Currently, the Rule provides little guidance on how much notice is required, how a 30(b)(6) deposition counts towards the limit and duration of depositions, the presumptive limit on the number of deposition topics and the process for objecting to (and resolving disputes about) the scope of a notice, among other critical issues.
Beginning in April 2016, the Advisory Committee on Civil Rules began considering a variety of changes to the Rule. The Committee ignored many reforms that would improve the Rule and instead landed on the aforementioned proposed amendment requiring a continuing good faith conference about the number and description of deposition topics and the identity of witnesses. In practice, this may result in more disputes, not less.
As an initial matter, witness selection is not grounds for many discovery disputes. The law is well-settled that an organization has the sole responsibility for selecting the witness(es) who will testify on its behalf. The organization has the corresponding duty to ensure that the witness is adequately prepared to testify.
And, it is the organization (not the individual) who must answer if the deponent is not adequately prepared. As a result, the identity of the witness is simply irrelevant to the process. Thus, injecting the requirement to discuss witness selection only invites mischief and gamesmanship.
For instance, if the organization selects an otherwise adequately prepared witness who has less personal knowledge on a topic but has better deposition skills than someone with more personal knowledge, the amendment may encourage the requesting party to challenge the selection of the designee.
Similarly, if the identity of the witness must be disclosed pre-deposition, it may invite an ambush – a barrage of questions within the witness’s personal knowledge, but outside the scope of the designated topics.
Moreover, witness selection likely falls within the scope of attorney work product. If litigation ensues regarding the selection of the organization’s designee, it may require attorneys to disclose otherwise protected selection criteria.
While the Draft Committee Note purportedly addresses some of these concerns – confirming that the “named organization ultimately has the right to select its designees,” and “the amendment does not require the parties to reach agreement” – the amendment nevertheless may result in more discovery disputes.
In sum, because witness selection is rarely litigated (as opposed to adequacy of preparation), requiring parties to discuss witness selection may turn out to be a solution in search of a problem.
The public comment period for the proposed amendment closes on February 15, 2019. After the comment period, the Advisory Committee on Civil Rules will decide whether to submit the proposed amendments to the Committee on Rules of Practice and Procedure for approval.
If approved by the Advisory Committee, the Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court, with or without revision, the proposed amendment would become effective on December 1, 2020, if Congress does not act to defer, modify or reject it.
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