A gift for this holiday season: “Confer in good faith”

Given the increased use of subpoenas to elicit information from non-party entities, in-house counsel will be interested to learn of the recent updates to Federal Rule of Civil Procedure 30(b)(6) mandating serving counsel to timely confer in good faith with the served party. Rule 30(b)(6) allows a party to depose a public or private entity by service of a notice or subpoena that “describe[s] with reasonable particularity the matters for examination.” Reasonable particularity means that the served entity can identify from the notice or subpoena the outer boundaries of the matters to be investigated.

Traditionally, the burden then fell on the served organization to identify an individual or individuals with the requisite knowledge or educate a representative to testify about information known or reasonably available to the organization relating to the listed matters. The old rule was: (1) burdensome for the served entity, which often had no prior knowledge of the litigation; (2) risky, due to the binding nature of these depositions; and (3) potentially inefficient, because the topics were often overly broad to ensure coverage of all desired information.    

The recent amendment may offer some protection from these burdens. Effective December 1, 2020, Federal Rule of Civil Procedure 30(b)(6) provides:

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 non-party organization of its duty to confer with the serving party and to designate each person who will testify.

The impact of this amendment will depend on the willingness of counsel to engage in meaningful discussions and courts’ desire to assertively enforce the meet and confer requirement. At a minimum, entities receiving a subpoena may want to consider the following when responding to forthcoming notices or subpoenas:

1. Setting a tone: The Advisory Committee Notes state that one of the primary goals of the amendment is to facilitate collaborative efforts between counsel, limiting potential conflicts and increasing the likelihood of reaching resolution outside of the courtroom. Early meet and confers are an opportunity to set a tone with opposing counsel that may influence the ultimate tone of the deposition.
2. Raising objections: The formal route for objecting to the scope of a Rule 30(b)(6) notice or subpoena is to seek a protective order from the court. Courts will now expect the parties to have a meaningful discussion about any objections or issues prior to engaging in motion practice and those discussions are likely to form part of the record that the judge will consider when rendering decisions. Thus, while meet and confers will offer an avenue for discussion of vague or ambiguous requests, privilege issues, trade secrets and other commercially sensitive information, or raising other objections without motion practice, it will also form the initial steps in creating a record and should be approached in that manner.     
3. Defining the scope: Instead of guessing at how to properly prepare the 30(b)(6) witness, early engagement with the serving counsel on the exact scope of the deposition and why each topic is necessary for the examination may assist the organization by potentially reducing the burden of preparation and ensuring the witness is properly informed for the intended scope of the deposition. Reaching agreement on the boundaries of the matters noticed may also help counsel defend questions during deposition that attempt to go beyond the scope of the notice or subpoena.

As entities continue to face a growing number of non-party subpoenas, entities will want to keep these changes to the Rule 30(b)(6) in mind as well as the ways these changes impact their response strategy. 

We are grateful to the assistance of Laura Hunt, who is admitted to practice only in Maryland. Her practice is supervised by principals of the firm admitted in the District of Columbia.