Urgent: Comment on 30(b)(6) Rule Change TODAY

Urgent: Comment on 30(b)(6) Rule Change TODAY

Trial Guides author Mark Kosieradzki (author of 30(b)(6): Deposing Corporations, Organizations, and the Government) sent us this important announcement:

On Friday February 8, I testified before the Federal Rules Committee in Washington DC about proposed changes to Rule 30(b)(6).

Even if you don’t practice in federal court, there are 50 state-level laws similar to Rule 30(b)(6) that will likely follow its precedents. 

The proposal that was being considered was as follows:

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 number and description of the matters for examination and the identity of each person the organization will designate to testify.

The corporate interests were well organized and heavily represented. They relentlessly pushed to expand the proposed rule changes to limit the number of topics which could be listed in a 30(b)(6) notice.

What started as good proposal to meet and confer about the notice has the potential of limiting access to relevant information and becoming a new cottage industry of litigation. By creating presumptive limits of areas of inquiry, there is a very real risk that responding organizations will claim every notice is overbroad. Then when we provide them with greater specificity, they will claim that the notice goes beyond the presumptive limit of topics.

I am concerned that enormous turnout by the defense will result in a lopsided public comment record that will be used to limit access to relevant information using 30(b)(6).

It is really important that you personally send in a comment about how limiting topics will harm your clients.

DEADLINE: 11:59 p.m. Eastern, February 15, 2019

The corporate interests were pushing hard for presumptive limits of topics. We have to make it clear through the public comment that it is a bad idea designed to tilt the scale in favor of corporations. Corporations have been putting on a full court press. We really need you, members of your firm, and your colleagues to file comments opposing the presumptive limits to topics of examination, with specific examples of how individual plaintiffs will be harmed.

Posting a comment is easy. It takes 5 minutes. Go to https://www.regulations.gov/docket?D=USC-RULES-CV-2018-0003

DEADLINE: 11:59 p.m. Eastern, February 15, 2019 

The points that I consider important are:

  • Rule 30(b)(6) does not need to be changed.
  • Rule 30(b)(6) works when the case law is followed.
  • Rule 30(b)(6) is the most efficient tool to gain access to information which is exclusively controlled by corporations.
  • Limiting access to relevant information tips the scales in favor of corporations.
  • There isn’t a real problem of overburdensome requests.
  • Stories of abuse are at best anecdotal.
  • If there was a serious problem it would be seen in motions for protective orders. There are very few motions asking limitation of topics.
  • Good lawyers work out disputes using the existing meet and confer process.
  • Presumptive limits on “topics” will result in gamesmanship as to what constitutes a “topic.”
  • Presumptive limits on “topics” will encourage crafting broader notices.
  • Broader notices will be more difficult to prepare for and result in more unprepared witnesses.

Although Rule 30(b)(6) does not need to be changed, adding language in the comments establishing that a meet-and-confer process is necessary before making a motion for protective orders would memorialize the practice that good lawyers already do.

PLEASE, PLEASE, PLEASE send your comments on the proposed rule change to the Committee on Rules of Practice and Procedure by 11:59 p.m. Eastern, February 15, 2019.

Post your comments here:



Thank you.

Mark Kosieradzki