Seyfarth Synopsis: Seyfarth Shaw submitted comments to the Federal Advisory Committee on Civil Rules regarding needed reform to Rule 30(b)(6), the rule that governs depositions of organizations in federal litigation. Our workplace class action group proposed two important areas for consideration that would encourage cooperation between the parties, including discovery proportional to the litigation, and more transparency and efficiency in an area that too often creates significant costs and burdens.
Proposed Changes To Rule 30(b)(6)
As most employers are aware, Rule 30(b)(6) allows a party to take the deposition of an organization by requiring the designation of an officer, director, managing agent, or other person competent to testify on a potentially wide range of topics requested by the opposing party. This process often results in the imposition of significant burdens on the organization where the requesting party makes disproportional and overbroad demands for information, seeks to impose sudden deadlines, or refuses to cooperate in negotiations that would appropriately narrow the types of information sought. In the face of such obstacles and inefficiencies, Seyfarth advocated for the need of procedural reform in this process.
The Advisory Committee on Civil Rules (the “Committee”) for the Federal Courts, which is responsible for recommending amendments to the Federal Rules of Civil Procedure, is contemplating possible changes to Rule 30(b)(6). In furtherance of this process, the Committee has created the Rule 30(b)(6) Subcommittee, which invited comment on the need for reform to the rule.
Seyfarth’s written submission is here. Seyfarth’s comments were prepared by the team of Alex Meier, Gina Merrill, Esther Slater McDonald, Ryan Swindall, and Julie Yap.
Seyfarth’s submission identified two major areas of reform to Rule 30(b)(6) that could provide much needed guidance and transparency. First, Seyfarth proposed that Rule 30(b)(6) should be amended to include presumptive limits on the number of topics that can be covered in deposition, on the scope of those topics, and on the number of deposition hours. These presumptive limits would not only create efficiencies on the resources required for an organization to be prepared for deposition, it would better ensure that the organization is prepared to respond to all topics identified by the requesting party.
Second, Seyfarth proposed that Rule 30(b)(6) should provide a clear framework for when depositions must be noticed and how a party may object to the notice. While district courts have created or endorse avenues for a party to protect itself from problematic Rule 30(b)(6) notices, disparities in the preferred approach has created confusion with respect to the proper procedure and the applicable standard of review. As such, Seyfarth endorsed a 30-day minimum notice requirement that would help organizations properly prepare their witnesses. Seyfarth also recommended adoption of an objection process — similar to that employed to respond to subpoenas — that would create a uniform, transparent process for challenging notices.
Implications For Employers
Rule 30(b)(6) can often create significant burden and impose substantial costs on employers facing all types of federal litigation. Potential amendments to this rule could help address the disproportional impact that this type of discovery has on employers. Seyfarth is hopeful that the Committee will continue to look at reform and potential amendments to address these issues.
Stay tuned for more updates regarding potential amendments to Rule 30(b)(6) as we continue to monitor developments on this important issue.
