Did you know that under the Federal Rules of Civil Procedure, you are obligated to confer with opposing counsel before taking the deposition of an organization under Rule 30(b)(6)? Did you know the benefits of utilizing such as strategy in state court as well? Rule 30(b)(6) governs the deposition of an organization, such as a business entity, and requires that the notice of such a deposition set out with reasonable particularity the matters of examination.

In 2020, the rule was amended to require talking to your adversary before the deposition to iron out possible issues:

Rule 30(b)(6)-Notice or Subpoena Directed to an Organization.

“Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify.”

Note that the requirement is only to confer, and not to both meet and confer, as as sometimes imposed by other rules governing discovery. The committee notes for the Federal Rules in December 2020 state that the revisions were made to respond to problems, such as “overlong or ambiguously worded lists of matters for examination” and gives the parties the opportunity to discuss “process issues,” such as the timing, location and number of designees. The stated intent is to facilitate early discussions of the deposition’s purpose and procedures to eliminate “later disagreements.” The 2020 amendment was a addressed recently in a wonderful article. See Ann H. MacDonald and Kylie S. Wood, “More Like a Chess Match, a Poker Game, or Family Feud? Preparing Representatives of Franchise Entities for Rule 30(b)(6) Depositions,” ABA Franch. Law Jn., Vol 42, No. 1 (2022).

We note that no obligation to confer exists under similar deposition rules in Pennsylvania and New Jersey state courts, Pa.R.C.P 4007.1(e), N.J. Court Rule R. 4-14-2(c), respectively. The new confer mandate reflected a reality in prior practice. A party would serve its notice with categories of issues for deposition. The responding party would serve written objections to notices or subpoenas seeking depositions of organizations even though neither Rule 30 nor Rule 45 specifically provided for objections to the categories propounded. Courts have considered the failure to provide written objections in advance of the deposition to the topics to be a waiver of the objection to the topic. The parties would then meet and confer as a prerequisite for filing a motion to compel or a motion for a protective order arising from a discovery dispute.

This obligation to confer seeks to avoid this minuet of demand and objection, although some practitioners question why they must confer in the absence of a dispute. Perhaps the confer obligation can be used for everyone’s benefit even in the absence of a dispute. Also, there may be some strategies which can be employed to maximize the opportunity to discuss the deposition before it occurs.

The committee notes suggest that before drafting the actual notice of deposition, “the discussion may be more productive if the serving party provides a draft of the proposed list of matters for examination, which may then be refined as the parties confer.” This suggestion seems more appropriate when initiating a discovery plan and deciding how may witnesses will need to be deposed, then it does in the heat of battle. Although the parties must confer in good faith, how early in the case can they really decide on the pertinent issues for examination and the depth of preparation necessary to have a representative of the organization testify? This raises the question of timing of the organization’s deposition. Ideally, one might exhaust the testimony of individuals known to have the information pertinent to the issues first, and then try to bind the organization to a certain set of facts. But an early deposition of the organization may provide a road map of whom to later depose to establish motive and to find additional documents or facts.

If you receive a notice of deposition for an organization, you might find the conference requirement quite salutary. The topics may be too broad and you can request clarification. You may recognize that the topics may invade attorney client privilege issues, and these can be addressed and capsulized before the deponent is sworn. You can discuss limitations on the knowledge available to the organization and how the deposing party would be better served by deposing a third party. While the organization will be bound by its answers at the deposition, some courts may allow evidence to vary that testimony if the organization was not be best source of the information. On the other hand, testimony by the organization are admissions, so it is necessary to carefully prepare of the testifying designee.

If you are issuing a notice of deposition to an organization, the committee notes reference the need of the deponent to be properly educated by the organization as to the facts within its knowledge. A conference before the deposition may provide an opportunity to remind the organization’s counsel of the need to educate the designee of the organizational knowledge, so that an efficient deposition occurs. Failure to fully educate the designee may result in repeating the deposition, counsel fees and other sanctions. The conference also provides an opportunity to learn about the identity of possible designees. When deposing an organization under either the state or federal rules, the organization is required to identify a person who will be testifying as a designee for the organization. The rules do not say when such designation must be made, and sometime the designation is withheld until the start of the deposition. Prior knowledge of the person testifying allows a deep dive investigation of the background of the person and my help assess credibility before the first question is asked at the deposition. In addition, the same person may ultimately be a fact witness that needs to be deposed, and the depositions could be efficiently conducted on the same day.

The conference requirement should be used strategically. The parties can learn from each other though informal discovery in an effort to clarify and enhance the deposition of an organization. The parties can address privilege issues, document handling, and issues involving the education of the deponent to streamline the deposition and the proceedings. As the federal practice of conferencing before the deposition becomes more familiar, practitioners may employ a similar strategies in state court proceedings. We will see whether state courts adopt similar amendments to their discovery rules.

Reprinted with permission from the November 16, 2022 issue of The Legal Intelligencer© 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.