On August 15, 2018, the federal Committee on Rules of Practice and Procedure released its latest proposed change to the federal rules of civil procedure to require opposing parties to confer in good faith when serving deposition notices to organizations under Federal Rule of Civil Procedure 30(b)(6). The proposed change makes litigants think twice (literally), or three times in some jurisdictions, before bothering the court with a discovery dispute over a Rule 30(b)(6) deposition. Reading between the lines, the proposed change is the latest indicator that courts don’t like wading into the weeds of discovery disputes.
These days, the main driver of the high cost of civil litigation is the so-called “discovery” phase of the case. In broad strokes, civil cases have three stages: pleadings, discovery, and trial/judgment. The pleadings stage is the formal initiation of a lawsuit that is triggered when a complaining party (the plaintiff) puts the alleged wrongdoer (the defendant) on notice with a formal document called a complaint, and the defendant responds by admitting or denying the allegations in a formal document called an answer. The trial/judgment phase is where the rubber meets the road and either a judge or jury resolves the dispute between the parties by issuing a judgment. Wedged between the pleadings and the trial/judgment phases is the behemoth known as discovery. During the discovery phase, each side “discovers” the basis of the other side’s claims and defenses, in addition to seeking information from disinterested third parties. Discovery has many uses, including fodder for settlement or deployment at trial.
The civil rules authorize several tools to “discover” the other side’s claims and defenses, including requests to produce documents and electronically stored information, interrogatories (written questions posed to the opposing party), and depositions (live testimony under oath in which one party gets to ask witnesses for information relevant to the case). These tools sound simple, but they can impose enormous costs on the opposing party. For example, think how long it takes to pose a request for production like “all documents at the company the relate to the sale of the widget” (about 10 seconds), and then think how long and how much it would cost for a large company to respond to the request — there could be literally millions of responsive documents and electronic files. The high cost of discovery has spawned high-profile initiatives like the Sedona Conference to counteract the problem, and gradually the Federal Rules of Civil Procedure have been amended to restrict sprawling discovery and rein in costs.
In a normal deposition, one side identifies a specific person to be deposed through live testimony. There’s no list of topics that the deponent must be prepared to testify about, and the person can be asked about almost anything relevant to the case. The deponent shows up and testifies to matters within his or her personal knowledge. Saying “I don’t know” is a stock answer in a regular deposition.
A Rule 30(b)(6) deposition is different because the person taking the deposition wants the knowledge of an organization (like a corporation) instead of a person. Under the existing rule, the party noticing a Rule 30(b)(6) deposition must include within the notice a list of topics that “describes with reasonable particularity the matters for examination.” The organization receiving the Rule 30(b)(6) notice must then designate the person(s) who will testify on behalf of the organization at the deposition on specific topics, and those persons “must testify about information known or reasonably available to the organization” on the topics listed in the deposition notice. There is no requirement that a Rule 30(b)(6) deponent have personal knowledge about the deposition topics — instead, the person must make a reasonable inquiry so that he or she can testify capably on behalf of the organization. The deponent’s answers on the noticed topics are considered the answers of the organization. After all, while corporations have extensive First Amendment rights, they can’t speak for themselves.
Rule 30(b)(6) depositions present opportunities for shenanigans on both sides. The party taking the deposition can include as many topics as they want, and through this method get around the 7 hour time limit that applies to other federal court depositions. A party that receives a notice with lots of topics (assuming it doesn’t move for a protective order) will probably designate more than one person to testify. Under most federal case law, each person designated can be deposed for up to 7 hours. This means, as a practical matter, that one Rule 30(b)(6) notice can spawn multiple days of depositions and create a huge burden on the party that receives the notice. The party taking the deposition can also veer off topic and start asking questions outside the scope of the Rule 30(b)(6) notice but within the personal knowledge of the deponent.
On the other side, the attorney for the person testifying can object throughout the deposition that the topics are ambiguous or the questions are outside the scope of the topic and therefore the deponent’s answers are not the answers of the organization. There is also a split of authority amongst the courts on whether an attorney can instruct the deponent not to answer if the question is outside the scope of the noticed topics — not answering is a generally a no-no for any other type of deposition. It is fairly common for a 30(b)(6) deponent to claim lack of knowledge even if a question is within the scope of a noticed topic.
The proposed changes to Rule 30(b)(6) are designed to prevent these problems by getting everyone on the same page about the meaning of the noticed topics for the deposition so that all involved can prepare adequately and the deposition goes smoothly. The proposed new language in Rule 30(b)(6) says that “before or promptly after the [Rule 30(b)(6)] notice 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.” In other words, the parties must confer about the list of topics for the deposition, and the person(s) who will testify about those topics, either before or soon after the party taking the deposition serves the notice.
This proposal imposes a new rule of conferral that does not exist for any other type of deposition. In the ordinary course, if a party wants to take a person’s deposition, he or she simply sends out a deposition notice and picks a date and time. If the deponent can’t make the appointed time, it’s standard practice for opposing parties to confer to pick a new date, but the rules don’t require conferral.
More significantly, the proposed change makes litigants confer twice before seeking court intervention on a potential dispute over a Rule 30(b)(6) deposition. First, they’d have to confer under new Rule 30(b)(6), and then, if they can’t agree and one side either moves to compel the deposition under Rule 37 or the other seeks a protective order under Rule 26, they have to confer again before filing the motion. That’s because Rules 26 and 37 both contain good faith conferral requirements before filing motions. And, if you’re in a jurisdiction like the federal District of Massachusetts with a local rule that says “[n]o motion shall be filed unless counsel certify that they have conferred and have attempted in good faith to resolve or narrow the issue,” see D. Mass. Local Rule Cv. 7.1(a)(2), you’re faced with a trifecta of conferral requirements — in Rule 30(b)(6), Rules 26 and 37, and the Local Rule.
Why the need for all this conferral? It’s hard enough facing a federal judge when the rules require you to confer with the other side and you can’t work it out. But not working it out after conferring twice, or three times? The average judge is probably going to think, and might actually say, “what is wrong with you?”
The multiple layers of conferral create an incentive to stay away from the courthouse, and to bring only the most worthy of discovery disputes (think Perry Mason arguing a weighty legal issue) to the attention of the judge. Seen from this perspective, the proposed change to Rule 30(b)(6) is yet another sign that courts don’t want to be in the business of discovery disputes. The trend away from the courthouse door is counterintuitive because many cases spend most of their lives in the discovery phase and never make it to trial. Some federal judges buck the trend; for example, Judge McConnell in the District of Rhode Island encourages parties to contact chambers to resolve disputes informally before filing motions. But this isn’t the message from the proposed change to Rule 30(b)(6); the message is that judicial resolution of discovery disputes is like washing dishes — it has to be done or things stack up, but it isn’t any fun.
The conferral requirement in proposed Rule 30(b)(6) is also part of a general trend in the federal rules to streamline litigation in federal courts through focusing the claims in the case and narrowing discovery. Other recent examples of this trend include a revised pleading standard that requires more factual allegations, sharpening the definition of relevance to a case to justify discovery requests, and changing the rules on where witnesses can be deposed. Depending on your point of view, the streamlining trend makes it harder for plaintiffs to prove their cases, or it rebalances the playing field by making it less costly for defendants (who are involuntary litigants) to participate in discovery and defend themselves.
If the streamlining in the federal rules continues, albeit at a glacial pace, one day we’ll wake up and realize we’ve become France. There’s no discovery in civil litigation over there.