FOR THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS 

 _________________

In the Matter of: )

 )

Public Hearing on Proposed Amendments )

to the Federal Rules of Civil Procedure )

 )

Advisory Committee on Civil Rules )

 ) 

Civil Rule 30(b)(6) )

________________________________________)

Sandra Day O'Connor U.S. Courthouse 

401 West Washington Street 

Phoenix, Arizona 85003 

January 4, 2019

Official Court Reporter:

Patricia Lyons, RMR, CRR

Sandra Day O'Connor U.S. Courthouse, Ste. 312

401 West Washington Street, SPC 41

Phoenix, Arizona 85003-2150

(602) 322-7257

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared with Computer-Aided Transcription

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A P P E A R A N C E S

Committee Members Attending in Person:

HON. JOHN BATES, Chair

HON. DAVID G. CAMPBELL

PROFESSOR EDWARD COOPER

PROFESSOR DANIEL COQUILLETTE 

HON. JOAN ERICKSEN 

PROFESSOR RICHARD MARCUS 

HON. KENT JORDAN 

JOSEPH SELLERS, ESQUIRE 

HELEN WITT, ESQUIRE

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I N D E X

WITNESSES:

John Griffin 6

Lisa LaConte 12

James McCrystal 18

Sandra Ezell 23

John Southerland 30

Nieves Bolaños 36

Mark Kenney 41

John Sundahl 49

Lee Mickus 56

Bradley Smith 65

Bill Rossbach 73

Patrick Fowler 81

Gray Culbreath 88

Michael Carey 95

Bradley Petersen 100

Jennie Lee Anderson 109

Bina Ghanaat 117

Tim Pratt 123

Keith McDaniel 130

Philip Willman 137

A.J. de Bartolomeo 143

Amir Nassihi 150

Donald Myles 156

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Francis McDonald 160

Michael Denton 164

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P R O C E E D I N G S

JUDGE BATES: Good morning. We're going to start

pretty promptly here today.

I'm John Bates, the chair of the Advisory Committee

on Civil Rules. I'm joined up here today by Dave Campbell,

the chair of the Standing Committee on Rules; by our chair of

the subcommittee dealing with Rule 30(b)(6), Judge Joan

Ericksen. Other members of the committee are reporters and

the reporter for the standing committee, or the former

reporter for the standing committee. And we appreciate your

coming here today.

We have a pretty full lineup of witnesses to hear

from this morning that will run into this afternoon a little

bit, I'm sure. I want to thank you in advance, all of you,

for your appearances today and for the written submissions as

well that we've already received.

There are 25 witnesses scheduled. It's a tight

schedule. We've only allotted seven minutes per witness. I

apologize for that, but we really have no choice if we're

going to hear from all of you.

To leave time for a question or two, I would urge you

to try to say what you'd like to say in five or six minutes

because there may be members of the committee who have a

0 9 : 0 0 : 5 9 question that they would like to ask you. So if you can shoot

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for that, I would appreciate it.

Again, we appreciate your cooperation and your input

into the rulemaking process as we deal with proposed

amendments to Rule 30(b)(6) of the Federal Rules of Civil

Procedure.

With that, we're going to turn to the first witness,

and our first scheduled witness is John Griffin.

MR. GRIFFIN: Good morning. What a difference it

makes from a few years ago when we had a facet -- a whole

facet of issues before us. Today we talk about a more

discrete issue, the venerable uniquely American Rule 30(b)(6).

I come to talk to you from a perspective of

representing people with disabilities who have opened up doors

through 30(b)(6) and what has been done with that rule in

important cases around our country.

As some of you know, I've assisted court security

officers who guard the federal judiciary around the country.

And Rule 30(b)(6) has helped make changes to the way the

Marshals Service deems CSOs fit for duty. Formerly CSOs, if

they needed a hearing aid in order to pass the hearing test,

they were fired. Rule 30(b)(6) allowed us to generate topics

about audiology, risks, what's important on the job, that sort

of thing, to the point now where the Marshals Service actually

judges people's ability to hear, period, with or without a

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Likewise, topics with the Marshals Service and cases

involving CSOs has helped the Marshals Service with

cardiology, endocrinology, and vision issues when cases have

come up with respect to court security officers.

Changes were made that made the judiciary safer

because of the discreteness of the topics that allowed

witnesses from the agency to candidly talk about the agency's

position on these issues.

Now, in other ways, in other important cases, I

practice, as you know from the last time, commercial cases,

but represent people with disabilities.

Some of you may recall in Washington, because of NPR

and the Washington Post, a case tried before Judge Anthony

Trenga, which involved a lot of 30(b)(6) testimony. There

were several issues that the FBI had with a young man who had

been selected to go to Quantico. He had his left hand blown

off in a grenade. He was an Army Ranger. At Quantico, he was

kicked out of academy because of the perception that he

couldn't shoot with his weak hand.

What happened in that case where there were topics of

deposition testimony under Rule 30(b)(6). The FBI first

claimed that agents had to be able to shoot with nondominant

hand in order to be qualified, and the notice included that

topic.

0 9 : 0 3 : 4 5 It turned out that in the history of the FBI, only a

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handful of times had any agent ever shot with the weak hand

and mayhem generally ensued.

Second, the FBI claimed in written discovery that

they never had anyone with a serious hand issue in the force,

that they can't have someone and never had people with a blown

off hand or a paralyzed hand.

The 30(b)(6) deponent, under oath, shared how the FBI

had several agents who had their hands, one even blown off

with a grenade, and others with paralysis and other types of

issues where the agent was declared fit for duty despite

something happening to the off hand.

Third, we learned under 30(b)(6) something else

different from the written discovery, that when FBI agents

take a firearms test, they don't have to hit the -- take any

of the shots with the off hand if they don't want to. They

can elect to pass so long as they achieve enough points with

their strong hand. In other words, points are points. Not

how they accumulate them.

Now, think about that.

The written discovery in those cases did not elicit

those frank answers. And following the case of the young man

in Virginia, Judge Trenga, the district judge, ordered

reinstatement, Director Comey elected not to appeal, and that

young man was chosen by his class when he was reinstated and

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He came after other 30(b)(6) testimony had changed

other ways. The FBI now employs agents who use insulin

injections as special agents. It took a jury trial and

30(b)(6) testimony by the FBI and a trial in Judge James

Robertson's court to make that happen.

More recently, we had 30(b)(6) testimony in the first

jury trial of the nation presided over by former chief judge

Royce Lamberth about a service dog for a veteran with PTSD.

30(b)(6) testimony generated the important testimony the jury

relied on in finding that that accommodation in that workplace

was reasonable.

Now, some people say that the committee shouldn't

look at such a discrete issue, but I commend the committee;

all rules need to be reevaluated. The committee, it seems to

me, hasn't thrown anything else -- what's the word I'm looking

for -- hasn't done anything radical or incendiary as some of

the comments have stated. Rather, the committee has taken

something and made it better by having a conferral process.

Some of you may know that Texas has patterned its

rule after 30(b)(6), and 199.2(b)(1) does have one of the

improvements that the committee is considering, a requirement

that the organization designate the witness a reasonable time

before --

PROF. MARCUS: Can I interrupt with a question.

0 9 : 0 6 : 3 4 MR. GRIFFIN: Go ahead. 

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PROF. MARCUS: We use the word in our rule

"designate." You seem to say Texas treats that as meaning

inform the other side; is that correct?

MR. GRIFFIN: That is correct.

PROF. MARCUS: Has that caused any problems and would

a rule that required that accomplish the goals you think we

should be trying to accomplish?

MR. GRIFFIN: It's a worthy goal. In 35 years,

there's not a reported case on a disagreement over what's a

reasonable time before the deposition.

JUDGE JORDAN: Is there a difference between

identifying a witness and meeting and conferring about a

witness?

MR. GRIFFIN: Meeting and conferring, in our view, is

a help. There's been a lot of chatter and overwrought

statements about people meeting and conferring about either

the top --

JUDGE JORDAN: Is there a difference?

MR. GRIFFIN: Sure.

JUDGE JORDAN: So the Texas rule is an

identification, not a meet and confer.

MR. GRIFFIN: Absolutely. It's only identification

and the Texas rule has only that facet. I think that the

committee's done better with the meet and confer. The

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and "radical," but they're from the vantage point of either

the organization or the party who seeks the deposition.

What you've done is create something that's very

balanced. The noticing party has to or should confer about

scope of the topics so that you can make sure your topics --

you don't see the judge in a motion for the first time, you

can discuss them with the other side. Likewise, the

organization's discrete obligation is to name the designee.

The meet and confer doesn't require them to -- doesn't require

us to tell who it is. But it does have some help that both

sides know the other's perspectives so you know that before

you face a motion after the deposition. And of course

procrastinating on the designation, waiting for the last

minute, invites the very problems the rule is designed to

prevent.

JUDGE ERICKSEN: Does the Texas rule have a meet and

confer aspect or is it simply --

MR. GRIFFIN: It does not.

JUDGE ERICKSEN: -- simply notice. Has that worked

all right?

MR. GRIFFIN: It has for 35 years. There are no

reported cases on it. In our practice, generally -- if I'm

presenting an organization a few days before the deposition,

I'm telling them who it is so that they can save their

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normally ask in a deposition.

But the meet and confer of discrete issues, I think

as a noticing party, and I represent companies too, as a

noticing party, I want to know problems with the notice. If

there's an argument that it's not sufficiently particularized,

let's talk about it. Maybe we can combine some topics.

Likewise, if I'm an organization, I don't want to

hear from it after the fact in a motion that my witness was

the wrong witness or was not sufficiently prepared or briefed

to address the topics. Those are good things.

JUDGE BATES: Mr. Griffin, any last comments?

MR. GRIFFIN: Sure.

Finally, courts have done a good job policing the

rule as it is. It is not a judicial admission, those

depositions. Yet nobody can ambush, a company can't ambush

someone when their witness doesn't know an answer to a

question. It ought to be supplemented.

If you did nothing it wouldn't be a crisis, but what

the committee's proposed is a good improvement on what's

already there and therefore I commend the committee's draft

for your consideration.

JUDGE BATES: Thank you very much, Mr. Griffin.

MR. GRIFFIN: Pleasure.

JUDGE BATES: Our next witness will be Lisa LaConte.

0 9 : 1 0 : 1 0 MS. LaCONTE: Good morning. Thank you for the

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opportunity to come and speak with you. My take is going to

be a little bit different.

I want to give you a little bit of background. I'm

with the law firm of Heyl Royster Voelker & Allen, and have

practiced for 30 years primarily in the area of mass tort,

toxic torts, asbestos litigation in state and federal courts

in Illinois and Missouri.

My real issues and comments perspective today come

from my role as national counsel representing a corporation

that began in the 1920s in the -- and representing the -- in

the asbestos litigation across the country. So we face the

issue of 30(b)(6) witnesses, not only in federal court, but

state court as well. In virtually every case this is a issue

and topic that comes up regularly. And we face notices for

those depositions regularly.

So there's some unique challenges when you are

talking about litigation such as the asbestos litigation that

deals with companies that have very long history, companies

who are a conglomeration of acquisitions, mergers, and sales

over many years, and you're talking about a product or a

premises of that company that may no longer exist, it may have

been bought or sold or acquired later on. So the idea of

identifying someone with knowledge about all these myriad

topics becomes quite a challenge. So it's certainly something

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I certainly recognize that the committee has spent a

lot of time considering the amendment to 30(b)(6). My

position and my request is that the committee today consider

not adopting the proposed amendment but frankly re- --

considering some revisions to the proposed amendment that we

think will provide real meaningful change as we proceed in the

litigation.

The concept of meet and confer is certainly not

anything new to any of the lawyers that are in this room, and

I think you would expect that most of us do that on a regular

basis on topics and issues in a case regardless of a mandate

to do so.

However, the mandated meet and confer requirement in

the proposed amendment merely, in our view, creates a

discovery obligation that is new but provides no meaningful

change or meaningful means for us to move the litigation

forward more efficiently, less costly the matter, or to

streamline judicial resources in any way.

Merely mandating the meet and confer aspect of a

30(b)(6) notice is not going to do anything but create an

infinite loop and an infinite opportunity for disputes to

arise and costs to be incurred because there's no companion

outline of a process to raise objections and a means to have

those objections to the notices resolve before the deposition.

0 9 : 1 3 : 2 8 JUDGE BATES: On the meet-and-confer aspect, we've

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been told by others that good lawyers with 30(b)(6)

depositions generally do have conversations.

MS. LaCONTE: We do.

JUDGE BATES: They do have a meet and confer.

MS. LaCONTE: We do.

JUDGE BATES: Why would that having as that as part

of a rule really change things all that much?

MS. LaCONTE: Well, by making it a mandated process,

you interject a requirement that sometimes is not necessary.

Sometimes we can resolve things easily. Sometimes the meet

and confer is not going to be the way that you resolve the

issue.

JUDGE BATES: But wouldn't that happen even with the

language in the rule? If it's easy to resolve, it will be a

30-second conversation.

MS. LaCONTE: And those aren't the problems that we

bring to the court. But that doesn't create the issues that

we see when we have 30(b)(6) issues.

And I'll be very honest, we don't have an issue that

requires court intervention in every single notice that we

receive. But when the parties equally on both sides have an

issue that either their clients insist that they hold their

ground or the lawyers are adamant about the relevance or other

objections to the deposition notices, there's no means for us

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their ground.

JUDGE JORDAN: That's a separate issue, though;

right? You're talking about a notice as to meet and confer.

What is -- what's the problem with a meet and confer? You've

said it's a problem. If lawyers are doing it anyway, what's

the problem with having it in the rule? 

MS. LaCONTE: Well, the problem is that you're

requiring a process that is not going to resolve the problem.

There's an easier way to resolve the process.

Again, I'm not objecting to the concept of meeting

and conferring. But to make that a discovery obligation, I

think it's not going to get us the meaningful change that we

would like to see in the rule.

JUDGE JORDAN: It's not so much that the meet and

confer is a problem as the draft doesn't have things in it

you'd like to have? Am I understanding that right?

MS. LaCONTE: Yes. With respect to the topics, the

scope of the deposition, yes.

So by providing a means for the parties to raise

objections and a means to have those objections ruled on

before the deposition goes forward, I think would provide the

meaningful change that the concept of meet and confer you may

think is going to get us there, but when both sides hold their

ground, there's no means in the rule to address those issues

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appropriate deposition taken.

JUDGE BATES: Is there a mechanism for objections

formally in the rules now for Rule 30 -- not specifically

30(b)(6), but Rule 30 depositions?

MS. LaCONTE: I don't believe so. We reference --

JUDGE BATES: So why do we need one for Rule 30(b)(6)

if there isn't one for depositions generally? Doesn't the

process work all right, not just for 30(b)(6) but for all

depositions?

MS. LaCONTE: No, I don't believe so because 30(b)(6)

notice is so different than a witness's deposition on the

basis of personal knowledge. The usual fact witness

depositions, party depositions, expert depositions are focused

on specific facts of the case or limited to the knowledge of

those witnesses, as opposed to 30(b)(6) witness who is

speaking on behalf of the corporation.

And, you know, the notices that we receive have 50,

75, sometimes 100 areas of inquiry that go back into history,

back way beyond the personal knowledge of the witness, outside

of the scope of the particular limited facts of the case, and

that's where we get into the disputes of the scope of the

30(b)(6) deposition.

JUDGE BATES: Do you have any final comments you'd

like to make for us?

0 9 : 1 7 : 3 2 MS. LaCONTE: Well, the final thing that I'd like for

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you to take away is that by providing a framework for the

parties to address their objections and resolve their

objections before the depositions go forward would be a very

meaningful change. It would streamline the deposition

process, the objection process, it would eliminate unnecessary

motion process practice, and that just bogs down the whole

process of the case. And I think you would find that it

resolves a number of the issues that you're going to hear

about today.

Thank you for your time.

JUDGE BATES: No further questions.

Thank you, Ms. LaConte.

The next witness will be James McCrystal.

Welcome.

MR. McCRYSTAL: Morning, Your Honors.

I'm here this morning on behalf of the DRI, which is

a membership group of over 20,000 lawyers that practice in the

civil courts of the United States, including federal courts.

And they routinely encounter issues with

Rule 30(b)(6) in the federal courts and the analog in many

state courts. And the guidance that this panel creates by

writing rules and offering committee notes guides not only the

federal judges applying these rules, but state judges that

also have to consider issues that arise in the context of

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Our comments are directed at things that are not

included in the present draft that we think are important for

consideration. Paramount is that it is unclear in practice

whether the limitation on the number of depositions or the

length of depositions conducted under Rule 30 apply to an

organizational deposition.

And the reason I say this is that, as you know in

rule changes from 2015, the number of interrogatories and the

number of witnesses were limited. So now the dynamic has

shifted to potentially, well, let's get the organization to

produce someone who will give us all the information that we

couldn't have obtained through the 25 interrogatories or the

limited number of witnesses in time we have to take testimony

from percipient witnesses.

And our concern is that without -- at least in your

comments -- knowing that those principles apply to this type

of discovery deposition leaves us where we're down the rabbit

hole. Where suddenly this type of deposition becomes the

dominant and becomes uncontrolled by the normal limits of time

and length and number of witnesses.

PROF. MARCUS: So what you're saying is that your

goal is that the committee note add a reference to the

existing 26(b)(1) proportionality provision? That's the

solution?

0 9 : 2 0 : 5 0 MR. McCRYSTAL: I think by noting that this type of

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organizational deposition counts as one of the witnesses or

that the seven-hour rule applies --

PROF. MARCUS: But the committee in 2000 does address

that issue, doesn't it?

MR. McCRYSTAL: With regard to this type of

deposition, I'm not sure, Professor, that it does

specifically.

JUDGE BATES: If you assume it does, is there really

that much of a problem? You say this issue comes up, and I'll

grant you that it probably does come up between the lawyers,

they have a discussion. It doesn't wind up with a lot of

motions practice or a lot of wasted time or taking the judge's

time to resolve that, does it? We haven't seen cases like

that.

MR. McCRYSTAL: I think you're correct on that,

Your Honor. But what I'm concerned about is the future, not

the past. And I think that this is an excellent opportunity

for the committee to make it clear in its comments that you

believe there is a framework here, because otherwise what

we've done is expanded into another universe where

interrogatories aren't important, I'll just issue a 30(b)(6)

notice and I'll actually get to interrogate someone who is

supposed to know what otherwise I would have done in an

interrogatory.

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The -- that's -- the issue that you put on the table is that

the numbers and length limitation should apply, and we've got

a few years experience now with the 2015 amendments. If there

were a problem with this, would we see some information that

shows, hey, this is a regular problem?

MR. McCRYSTAL: I think lawyers are reluctant

generally to go before the court with issues like this because

it's contextual, and some judges are very active in the

management of their dockets. Those who say you can't, this

rule encourages the judge can put an order on saying that you

can't file papers before you conferred with me or my office

first, I don't want that paperwork, let's work it out. And,

yes, lawyers do that. But there are a number of occasions

where clearly framing the issues for them that, yes, seven

hours, yes, a limited number of witnesses --

PROF. MARCUS: If it's contextual, doesn't that mean

the circumstances of a given case are important?

MR. McCRYSTAL: Yes.

PROF. MARCUS: Then a specific across-the-board limit

might be inconsistent with that.

MR. McCRYSTAL: All of these rules were written with

the changes over the past 20 years to encourage management

techniques to be applied by the district judges and to cause

the parties to confer with each other without the

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I agree with you, Professor. I don't encourage an

absolute rule. But I do encourage the litigants be mindful of

those limits and the judges respect the opinion of a committee

in its notes that these limits have meaning in the context of

litigation.

Yes, you can have more than 25 interrogatories. Yes,

you can take a deposition for longer than seven hours by

agreement. Yes, you can have more than ten witnesses by

agreement or by court order.

This rule with regard to 30(b)(6) doesn't contain

references to that, and I think it would be assistive if it

did.

JUDGE CAMPBELL: Mr. McCrystal, what exactly would

you have us put in the committee note?

MR. McCRYSTAL: I think I can draft language for you,

but my concept would be --

JUDGE CAMPBELL: Concept, yeah.

MR. McCRYSTAL: -- that reference to (1) and (2) of

Rule 30 are to be considered as guiding the practice under

30(b)(6). 

With that, I appreciate the questions and I look

forward to your deliberations.

JUDGE BATES: We appreciate your testimony,

Mr. McCrystal. Thank you.

0 9 : 2 5 : 1 1 Our next witness will be Sandra Ezell.

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MS. EZELL: Good morning.

JUDGE BATES: Good morning.

MS. EZELL: I am here as a 28-, almost 29-year lawyer

first admitted in 1990. I'm admitted to practice in Illinois

and Virginia, and as a 54-year-old woman will be admitted in

California in a few weeks.

JUDGE BATES: I don't know congratulations or

condolences.

PROF. MARCUS: Congratulations.

MS. EZELL: Both, I think, is the answer.

But that's where the trials are and so that's where

I'm headed. I'm a trial lawyer. And for most of these, 27 of

these 28 years, I have been defending corporate clients who

design, build, and make things against people who sue them for

injuries that they allege are caused by them.

And in conjunction with that I have defended or been

assistive in defending hundreds of 30(b)(6) depositions or the

state corollary depositions, and I'm here today to address the

proposed amendment from this experience.

I support this committee's proposed concept of a meet

and confer with regard to the matters for consideration or to

be addressed.

I particularly draw the committee's attention to your

report where you indicate that one of the things that would be

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consideration would be the documents that the noticing party

plans to use at the deposition be identified.

In my experience, the noticing party and the

responding party don't necessarily speak the same technical

language, the same terms of art. I deal with a lot of

scientific terms. And even within the same industry,

companies who deal in the same products don't speak the same

terms. And so people on different sides of the aisle, and

generally the defendant, the defendant and plaintiff don't

speak the same terms.

But if you identify the documents that you're going

to be discussing, it makes it much easier to know what that

deposition is going to be about. It makes it --

JUDGE BATES: Would it be fair to require the

noticing parties to identify the documents to be used without

the noticing party knowing who the witness is?

MS. EZELL: Yes.

JUDGE BATES: How so? If you know the witness, you

might choose one set of documents versus another set of

documents or some subset of those documents. It would seem to

make it inefficient if the noticing party has to produce the

documents but doesn't know who the witness is.

MS. EZELL: So litigation is separated into different

events, and the 30(b)(6) deposition is the time to take facts

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that is not the time, like an expert deposition or a 30 -- a

30 Section (1) deposition, a 30(a) deposition, to take

individual information. That is the time to find information

from the company about discrete topics. And if you have

through the course of interrogatories and requests for

production obtained documents that you want additional

information about, putting the company on notice that these

are the documents that you want to know more about is the best

way to get the information about those documents.

JUDGE JORDAN: How does that answer the question put

to you, ma'am? If you know who the witness is, would it not

make a difference in the documents selected? And if that's

true, why is it fair to demand that the inquiring party

identify the universe of documents while not knowing who the

witness is?

MS. EZELL: The witness in a 30(b)(6) deposition is

not there in their individual capacity.

JUDGE JORDAN: Given. Understood.

MS. EZELL: They're there as the company.

JUDGE JORDAN: That's understood.

MS. EZELL: And so who the individual is on that day

is irrelevant to the exercise on that day.

We had another attorney who spoke --

JUDGE BATES: I don't see how that really would be

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on, even though they aren't being examined as to their

individual knowledge, you would have documents that would be

more relevant to talking to that witness about the company

information.

MS. EZELL: Whether or not somebody was copied on a

document is something that is -- the document speaks for

itself. But whether or not that person knows about that

information is not what they're there for. That's about their

personal knowledge. They're there to answer questions about

the state of the company's knowledge on particular topics.

And I think that the questions that you're asking are merging

the two --

JUDGE BATES: If you were conducting the deposition

and someone said X and you had a document indicating they were

copied that said, no, Y, wouldn't you want to be able to

examine them on that?

MS. EZELL: Well, yes, I'm sure that I would. But

that is not the purpose of a 30(b)(6) deposition. Within a

company, the larger the company, I imagine, the more

exponential the issue. But even within a small company, if

the question is what is the definition of Y, you're going to

have multiple documents that would show that different people

within that company would define it differently, but the

company is going to eventually come up with a definition of

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that is defined. And the -- 

JUDGE JORDAN: Does your approach not lead to an

overdesignation of documents? Because what it sounds like

you're saying is because the company gets to pick who it wants

to pick and it should be irrelevant who that voice is for the

company, the other side, the inquiring side, then has an

incentive, strong incentive, to not narrow the number of

documents that your party needs to be prepared to answer, but

to get a sort of data dump because they don't know who they're

getting in the seat of the witness.

MS. EZELL: In my experience I've never been able to

figure out a way to limit the documents that the other side

requests. However, I think that they would not permit the

company to limit that by saying if you take these documents,

we'll give you a witness. I mean, that's not a decision they

would permit the company to make anyway. They're going to

decide.

JUDGE JORDAN: So you think this is a data dump

anyway?

MS. EZELL: Depends on what the issue is. No, I

don't think there's a data dump. I think the questions are

asked usually long before the deposition and the documents

that are responsive are given.

MR. SELLERS: Well, let me ask a question. When you

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deposition, do you take into account the job duties of the

person you selected who might be relevant to the subject of

the deposition?

MS. EZELL: It depends on the company. In some cases

there's nobody left alive at the company who knows.

MR. SELLERS: Understood. But if there is somebody

around who -- I understand that may be the occasion, but if

there's somebody at the company who has background or

knowledge of a particular subject, wouldn't you -- unless they

are ill-suited to be a witness for other reasons, wouldn't you

prefer somebody who has some knowledge on that subject?

MS. EZELL: It sounds like the answer should be yes,

but the answer is so often it really doesn't matter. If their

purpose within that company is so instrumental to doing that

job, if they really need to be building those widgets and

while this litigation is really important to us but the

widgets are really important to the company, it doesn't matter

if my preference would be to have that witness. I get

somebody else.

JUDGE BATES: Ms. Ezell, can I ask you one last

question.

MS. EZELL: Absolutely. I'm here for you.

JUDGE BATES: And ask you to be brief in your

response.

0 9 : 3 4 : 1 3 From your experience, does the person that's going to

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testify, the witness, commonly get identified by the

organization to the other side before the deposition occurs?

MS. EZELL: No.

JUDGE BATES: And does the subject of who the witness

is commonly get discussed now or would the organization

generally refuse to do so?

MS. EZELL: And by identified, I mean their name is

not given. Certainly what happens is we would say we will

produce somebody who will address this issue and this issue

and this issue.

JUDGE BATES: I understand. I'm asking whether the

identity --

MS. EZELL: Well, I'm unclear in this process what

your committee means by the word identity, so I wanted to make

sure I was clear.

I'm sorry, your question was?

JUDGE BATES: Appreciate that.

Does the organization refuse to identify and refuse

to discuss? And if so, why?

MS. EZELL: I think that -- it's not that there's a

refusal. We get a request, we say we will produce somebody to

address these issues on this day at this location, and I'm

not -- I don't have any recollection of somebody saying tell

me who it is and my refusing.

0 9 : 3 5 : 2 9 JUDGE BATES: Are you ever asked who the witness is

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going to be?

MS. EZELL: Not in my personal experience.

JUDGE BATES: All right. Thank you very much,

Ms. Ezell.

MS. EZELL: Thank you.

JUDGE BATES: All right. We'll turn now to the next

witness, John Southerland.

MR. SOUTHERLAND: Good morning, and thank you for

allowing me to be here.

I come here this morning with 14-plus years of

experience, and I have had the pleasure of being able to

represent both large corporations and also smaller locally

owned businesses, some may refer to as mom and pop businesses.

I've done it representing both the plaintiff and defendant.

I've had the opportunity to present 30(b)(6) witnesses as both

counsel for plaintiff and counsel for defendant in multiple

states and across multiple jurisdictions.

What I want to do this morning is, one, I'm asking

the committee to not pass the current proposed amendment. I

believe it is problematic. I don't believe it solves any of

the current problems with Rule 30(b)(6). I'm asking the

committee to continue this process that you've clearly engaged

in, with a lot of effort, to try to actually enact meaningful

change to the rule.

0 9 : 3 6 : 4 2 When I began analyzing the current proposal, I asked

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myself three questions: Does it offer anything new? If so,

will it resolve any current problem? And what can be done to

enact meaningful change?

I began, and if you read my written testimony I

looked at the advisory committee comments when Rule 30(b)(6)

was originally enacted. And what I found from there is there

are essentially four purposes for the rule at that time. It

was to add a discovery method to improve the discovery

process, to reduce difficulty in identifying a particular

witness, and to be advantageous for both sides.

I then took those purposes and I asked myself does

the current proposal, does it meet the purpose and the spirit

of any of those goals for Rule 30(b)(6) when it was enacted?

And I don't believe it does.

JUDGE ERICKSEN: Can I just ask you, it seems from

your written commentary that your objection is primarily to

the identification of witnesses in advance.

MR. SOUTHERLAND: That is certainly the most

problematic area to the proposal. But, as I think

Judge Jordan asked earlier, is there a problem with the meet

and confer being part of the rule, and I don't believe that

there's necessarily an issue with a meet-and-confer

requirement being part of the rule. I believe the current

proposal does not provide enough meaningful and specific

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And also the biggest issue is it does not provide any

process to allow the parties to resolve the dispute once

they've reached an impasse.

JUDGE BATES: Would you identify with respect to the

meet and confer what specifically you would advocate be

removed from the proposed language and what specifically you

would advocate be added in terms of specificity on the meet

and confer.

MR. SOUTHERLAND: Well, on the current meet and

confer language, the issue that I have is that it basically

just says you need to meet and confer and you need to continue

to do so as necessary. But -- and so --

JUDGE BATES: Anything wrong with the subjects that

are identified for meeting and conferring?

MR. SOUTHERLAND: I'm sorry, the subjects that are

identified for meeting and conferring?

JUDGE BATES: Topics and the names of the witnesses.

MR. SOUTHERLAND: I think it's fine to meet and

confer about the topics. I do believe that there is a problem

with identifying and meet and conferring about the identity of

the witness. That is obviously an issue that I have with it.

JUDGE BATES: In your experience, does the identity

of the witness get disclosed before the deposition or not?

MR. SOUTHERLAND: It can. I've certainly --

0 9 : 3 9 : 3 0 JUDGE BATES: I know it can. Does it usually or not?

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MR. SOUTHERLAND: Well, you know -- and I don't mean

to mince words with you, Judge Bates, but "usually" is a

relative term. In my experience -- the way I would describe

usually, I would say usually does not. The identity of the

witness usually in my practice does not get disclosed.

And when I'm asked, you know, the first thing that I

do is I ask my client, do you have a position on this?

Because really at the end of the day, it's the client's

decision as to whether they want to identify who the witness

is.

In practicality I can tell you that having some type

of early identification of the witness, and this doesn't even

get into what does identifying the witness actually mean in

the current proposed amendment, but the practical implications

of having to identify the witness early is problematic in and

of themselves. One, who the specific individual is that will

respond to a 30(b)(6) notice is irrelevant. The witness in

response to a 30(b)(6) notice is the organization. That's all

you need to know.

And I believe you asked earlier, Judge Bates, if you

know who the witness is, will that affect what documents you

may use during the deposition. I submit to you it shouldn't.

Not in 30(b)(6) context.

And in a 30(b)(1) context, sure, that's fine, you

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obviously have a specific reason for wanting to depose that

person. 

But in a 30(b)(6) context, you've given topics of an

organization, and who the person shows up to testify for that

organization, who that person is should never affect your

preparation for that deposition because you should be

preparing to testify or to depose that individual

organization, not the specific individual who shows up on that

day.

JUDGE BATES: I understand, though, your position

there may not be any advantage to having to identify the

witness. What would be the problem or disadvantage to a

requirement that the witness be identified? Identified

meaning by name and title. Say seven days before the

deposition is scheduled.

MR. SOUTHERLAND: Sure.

JUDGE BATES: What would be the problem with that? 

MR. SOUTHERLAND: And, Judge Bates, I'll give you

some advanced notice. I know that another of my colleagues

I've worked with over the years is going to speak to you later

and give you some more real world examples, but I

wholeheartedly agree with them because I've seen them.

Here's the issue: There are times, probably more

times than not, where I don't know seven days in advance if

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single topic in the notice. And I may get to a point in time

within that seven-day period where I realize that I'm going to

have to have more than maybe the person who I've been working

with and preparing up to that point.

So then let's say that I identify that witness in the

seven-day time period and then I realize, oh, I'm going to

have to identify somebody else or I'm not going to submit that

person for the deposition. Now I have to go back to the other

side and say, I know I told you that person was going to

testify, but now that's not going to be the case. You know

what happens then? Then the other side goes and takes the

30(b)(6) deposition and then they follow that up with a

30(b)(1) notice for the individual I named originally, and

that witness has to be subjected to a bunch of questions about

why they can't testify on behalf of the company they work for.

That's a very problematic situation, in my opinion.

JUDGE BATES: So it's your view that seven days

before the deposition, I could change that to four days, it's

commonplace that the identity of the witness is not even known

to the organization and it's lawyer?

MR. SOUTHERLAND: Not commonplace. I'm saying

that -- that's not commonplace. I'm saying that that's an

issue that can arise. I'm not saying any of that is

commonplace. I don't believe that there's any advance

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creates a new discovery obligation on the party that has never

been created before and, quite frankly, flies in the face of a

very well settled body of case law around this country that

recognizes the identity of the witness in a 30(b)(6) context

is irrelevant.

And so I think that my time is up.

JUDGE BATES: Any last question for Mr. Southerland?

Thank you very much, Mr. Southerland. We appreciate

it.

MR. SOUTHERLAND: Well, thank you all and I

appreciate it. 

JUDGE BATES: All right. Our next witness will be

Nieves Bolaños.

MS. BOLAÑOS: Good morning. 

JUDGE BATES: Good morning. 

MS. BOLAÑOS: First of all, I'd like to thank the

committee for its work on the rule changes. I understand a

lot of effort and time went into these proposed changes, and

also thank you for taking so many opportunities to allow

testimony from both sides, defendants and plaintiffs, with

respect to these changes.

I'm here today on behalf of my law firm,

Potter Bolaños, and as an executive board member for the

National Employment Lawyers Association, as well as the

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My firm, Potter Bolaños, is a Chicago law firm of

about five attorneys, and we exclusively represent employees

and labor unions in both individual and class-action cases.

The vast majority of our cases are filed in federal court and

pursuant to federal statutes, including Title VII, Fair Labor

Standards Act and False Claims Act.

The diversity of our practice provides us the honor

and opportunity to represent workers from all walks of life:

Executives and learned professionals, as well as low-wage

workers who sometimes don't even make the legally mandated

minimum wage.

At the outset of these proceedings, it is

absolutely -- there's no question, individuals are at a clear

disadvantage when it comes to ascertaining the organizational

structures and inner workings of the companies and

corporations that they provide work for.

That fact, taken together with the reality that

companies control a disproportionate share of the information

necessary to narrow and resolve disputes and also often have

far greater resources to put into litigation for those

disputes, demonstrates just how important it is that these

rules and the discovery process generally promote efficiency

and fairness in order to level that playing field for all

those who are seeking justice in our federal courts.

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effective, and one of the most effective ways for plaintiffs

with employment claims to learn some very basic information

about their claim and the defendants' processes.

These include the identification and description of

timekeeping and payroll systems, methodology and organization

and assessment of data that's gathered, as well as just the

corporate structure of their workplaces.

JUDGE JORDAN: Can I ask you, Ms. Bolaños, how does

knowing the identity of a 30(b)(6) witness in advance do

anything to advance those goals?

MS. BOLAÑOS: Knowing the identity of a 30(b)(6)

witness allows us to, in the meet-and-confer process, which we

find already often takes place with the more seasoned

attorneys on both sides of the table, it allows us to discuss

whether or not that witness is going to be sufficiently able

to testify to the topics that are outlined in the notice.

JUDGE JORDAN: Does that imply, then, that this rule

would make a substantive change in who gets to say who the

witness is? Because the assertion from the defense side, as I

understand it, is the plaintiff's lawyers, the inquiring

lawyers, should never have the opportunity to tell us who our

corporate representative is.

MS. BOLAÑOS: I did not read the proposed changes to

give me the power to say who should be testifying. I read it

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and then be able to offer my suggestions on why or why not

that person might be appropriate or able or -- able to be

prepared to testify on a particular set of topics.

JUDGE JORDAN: Can you respond -- I realize this is

not oral argument with one side or the other side, but we just

heard from Mr. Southerland that that would raise practical

problems, and he said specifically if we have to identify in

advance, you heard what he said, that if we have to change

somebody or add somebody, now we've got a dispute that we

would otherwise wouldn't have.

Do you have a response to that?

MS. BOLAÑOS: Well, I heard two things being said,

and one was that we might not know until four days before,

seven days before who we're going to designate. I find that

problematic because I think that one of the biggest problems

we've run into in 30(b)(6) depositions is that a witness is

not properly prepared to testify on a designated topic. Four

days before a deposition may be too soon for that witness to

become fully prepared on a particular topic. So I found that

concerning.

As to the second piece, I think -- we're a plaintiffs

law firm and we represent folks with pretty limited resources,

so there's no reason for us to notice up another deposition

simply to harass or harangue an individual about why they can

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to get the information, to get it from the person who is most

prepared and able to testify as fully as possible.

JUDGE BATES: Do you think -- I take it you think

there should be a requirement in the rule that there be

conferral as to the identity of the witness.

MS. BOLAÑOS: That is correct.

JUDGE BATES: Aren't there considerations with

respect to choosing a witness that an organization might not

want to or indeed should not have to share with the other

side? And wouldn't a conferral requirement expose that?

MS. BOLAÑOS: Not necessarily. A conferral

requirement would identify the scope of the communications

that have occurred. If there's then a problem at the

deposition, we have a record and we've already done some of

the groundwork for the judge if there's a reason to bring a

motion and have any issue that's come up be decided by the

judge.

JUDGE BATES: And since you haven't used all your

time, I have one more question for you. And that is, some

have suggested a numerical limit on the number of topics. How

do you think that would affect the process? Would that cause

plaintiffs lawyers, if they were the ones noticing the

deposition, as they usually are, would it cause them to have

unreasonably broad topics if they have to fit it within

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MS. BOLAÑOS: I think that absolutely could be the

result of a strict numerical limit. I think that the

committee's decision to reject that as an inclusion into the

proposed changes recognizes that there's not a one size fits

all in these circumstances, and that the number of topics, the

breadth of topics will always depend on the underlying claims

and the nature of the cases.

JUDGE BATES: Any other questions for Ms. Bolaños? 

Thank you very much.

MS. BOLAÑOS: Thank you.

JUDGE BATES: Our next witness will be Mark Kenney,

please.

MR. KENNEY: Good morning.

JUDGE BATES: Good morning.

MR. KENNEY: I'm a member of a firm called

Severson & Werson in San Francisco. I spent 40 years in

federal litigation all over the United States. I am a trial

lawyer, too, but I don't have a particular subject matter

focus. Way down deep I'm shallow.

But today I want to focus pretty narrowly on this one

requirement for a meet and confer about what's called the

identity of the 30(b)(6) witness. And I want to just ask what

I've been asking myself and anyone I could talk to about this

for weeks now, which is the existential question "Why?" What

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meet and confer about this thing we call identity?

And here's how however good the intentions of this

committee and the ultimate decision-makers are, you know and I

know that we lawyers will mess with it. And this is where the

trouble can start. So I ask why.

Presumably --

JUDGE BATES: At least you're saying the trouble

starts with the lawyers, not with the rule.

MR. KENNEY: First thing we'll do, we kill all the

lawyers, we'll be fine.

But we start with the proposition that in an already

fraught litigation environment and 30(b)(6), there is some

contention about it, you ask, but if lawyers are already

talking now, if they're already meeting and conferring with

each other about any other topics, why not force them to meet

and confer about this one. I do not. I have probably

promulgated as many 30(b)(6) notices as I've been tasked with

responding to them. But in responding, I do not identify

witnesses, and I counsel my clients not to. I think there are

very good reasons for that.

That begs the question, why would someone want to

know what the identity of the person is who is going to be

testifying?

JUDGE BATES: Tell us what the good reasons for not

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MR. KENNEY: Well, here's the thing. Inseparable

from this meet-and-confer requirement, if meet and confer

means anything, it means we have to have a robust conversation

about this thing called identity.

Now, identity, you know that the Oxford Dictionary

says identity is not just name, but it's the personal

attributes that make that person whom and what they are.

JUDGE BATES: Well, why don't you read identity as

being name and title for the moment. Okay?

MR. KENNEY: Okay. Name and title. What could

possibly be wrong with identifying name and title? Well, I

think one of you asked if I knew that, couldn't I look that

person up? Couldn't I do some research on that person?

Now, starting with the proposition that 30(b)(6) is

about the information reasonably known to or available to the

corporation, as opposed to the individual witness, regular 30

deposition, what would you be the utility, what would be the

appropriate reason for looking up that person in social -- I

mean, you all know what a diligent, effective, energetic

lawyer will do. There will be social media research, there

will be research as to this person's work history, and that

will all likely show up in the questioning of that witness.

The question is whether that is appropriate, and I

submit to you that it is not and it is devoutly to be avoided.

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fair, it's not appropriate, and it's not -- a deposition can

always be taken under Rule 30 of an individual witness if

someone wants to get there. But to use 30(b)(6), which is a

very different salutary process but for a very different

purpose, to use it to focus on the individuality of the

spokesperson is inappropriate.

MR. SELLERS: Let me ask you, when you select -- I

asked this before of somebody else. When you select witnesses

to be produced in a deposition, do you consider the job a

person held and what their knowledge may be of the subjects

that are designated for a deposition?

MR. KENNEY: Of course. Here's the point, and this

is why you can't separate meet and confer, in my opinion. If

I'm meeting and conferring, you just heard a proponent of this

rule say that the opposing party might want to know so that

they can discuss whether it was a proper witness.

Your question suggests that since I'm interested in

knowing the qualification of the witness, the other side might

be.

Here's the problem that I don't think has been

mentioned yet: This gets into my work product. And

potentially into attorney-client privileged information.

There may be any number of reasons why this, quote, more

qualified witness -- used to be a person most qualified. It's

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qualified. There could be any number of reasons that

implicate -- 

JUDGE JORDAN: It is in California.

MR. KENNEY: It is in California.

JUDGE BATES: But I don't understand, if you think

there's a work product or attorney-client problem, the lawyer

can handle that by declining to discuss in the meet and confer

some subject, just like they can say at the deposition, we

object to that question because you're getting into work

product. I don't understand what the problem would be.

MR. KENNEY: In trying to understand this question

why, I looked at the committee's comments, and the only

comments available about why the committee got to where it is

is that it might, quote, avoid future disputes.

But if you look at all of the literature and all of

the comments from proponents, it is invariably about avoiding

surprise, hiding the ball, hindering counsel's ability to

prepare, gamesmanship. Those are all of the reasons why they

ought to know who this person is.

There will be an argument that to have a meaningful

meet and confer, there has to be a discussion, as you just

heard, about the qualifications of the witness. To discuss

the qualifications of the witness inherently invades work

product.

0 9 : 5 7 : 3 5 JUDGE BATES: Let's set aside the meet and confer for

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a moment and just talk about identity, whether a requirement

that the witness be identified some days in advance of the

deposition would really be that harmful.

It sounds like you're advocating the benefits of

surprise, which isn't really what our system elevates to the

highest favored level. You think it's better that there be a

surprise the day of the deposition as to who the witness is as

opposed to telling the other side who that witness is a few

days beforehand?

MR. KENNEY: Well, I respectfully reject that

characterization. I have no interest -- I don't need to

surprise them. What I -- surprise suggests that I'm going to

come in with someone who in some way subverts the purpose of

30(b)(6).

JUDGE JORDAN: No, I think the surprise here speaks

to your earlier comments, which is I don't want them to be

able to look things up about this witness. And in that

respect you want them surprised because you don't want them to

be able to look up things about the witness.

What is it about your desire on the defense side to

not allow advanced notice of the witness to provide an

opportunity for research that is significant enough to

outweigh the opportunity for a person on the other side to at

least know who is showing up in the witness chair?

0 9 : 5 9 : 0 4 MR. KENNEY: I don't want them to know because I

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don't want the work of this body to be institutionalized, a

subversion of the salutary purpose of 30(b)(6), which is to

provide what the corporation knows. To respond honestly and

as fully and completely as possible to questions posed about

what the corporation knows.

JUDGE JORDAN: So the question --

MR. KENNEY: What is the value --

JUDGE JORDAN: The question put to you is how, if at

all, how would identifying the witness, not meeting and

conferring, but identifying the witness by name and title

subvert those purposes?

MR. KENNEY: Because it would -- it encourages -- I

can't think of any good reason for it other than -- and for

the life of me I can't think of a good reason -- other than

encouraging behavior which is completely apart from the

purposes of 30(b)(6).

JUDGE BATES: Might it not make the deposition more

efficient because the deposing noticing party would have the

opportunity to look over the documents and help to ascertain

exactly what topics this person really had the background to

talk about?

MR. KENNEY: I'm trying to think. Maybe in a nominal

sense, like that first half hour of the deposition. That

typically is what have you done, what's your resume. It might

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meet-and-confer process than in the first half hour of the

deposition.

JUDGE BATES: All right. Any other questions?

JUDGE CAMPBELL: I have one for you, and I'd

appreciate other folks addressing this as well.

We've heard from folks who take these depositions

that they can't learn the identity of the witness before the

deposition, that's a general practice, that there is a

frequently recurring problem that witnesses who appear are not

prepared to testify. And we've been hearing that for 15

years.

How do we solve those problems? What can we do in

the rule to help ensure that the correct witness is put in the

chair and is prepared to testify?

MR. KENNEY: As a trial lawyer, I'll tell you that

I -- I know you've probably heard that anecdotally. I think

probably in any statistical sense it is de minimis for the

following good reasons. Federal judges come down with a

hammer when an improper 30(b)(6) witness has been put forward.

I, as a promulgator of 30(b)(6) notices, have made miserable

the lives of people who have put on witnesses who aren't

properly prepared, both in motion practice and most certainly

at trial, where you can play havoc with someone that comes in

not having taken their responsibility seriously. So I don't

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JUDGE BATES: Thank you.

MR. KENNEY: Thank you.

JUDGE BATES: Our next witness, John Sundahl.

Mr. Sundahl.

MR. SUNDAHL: Members of the committee, thank you. I

am John Sundahl from Cheyenne, Wyoming, and I'm here on behalf

of the Defense Lawyers Association of Wyoming. Primarily

defense attorneys, not exclusively that. We come in

opposition of the rule.

When I was sitting here, I was thinking what am I

going to say to this august and obviously well-intentioned

group that has thought this thing through and has very, very

poignant questions, and I want back to the first presenter

that we had, and I think what we learned from that presenter

is that the rule seems to work just fine. We don't have any

reported cases indicating that there's a problem with it. To

the extent that there is a problem, we have a mechanism in

place where if the plaintiff believes that the witness is

inadequately prepared, he can go seek a motion for sanctions

in the federal court system. And he can do that.

So we have a situation in which, in Wyoming, we would

maybe describe as flawless. If it ain't broke, don't fix it.

So we have a situation where we really don't have a problem to

speak of.

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competent federal judges that can handle.

People always informally discuss things. Our

particular opposition is to the identity issue. In our

written comments that we provided on the 14th of December, I

sent in a couple of cases just as an example of things that

can go haywire when you get into a dispute about who's the

most knowledgeable, and if you allow the opponent to come in

and challenge the person that you have selected to be the

spokesman, and inject the deponent into the process of who is

to testify, you're creating an interesting and very

problematic situation.

JUDGE JORDAN: What if instead of meet and confer it

was identification only?

MR. SUNDAHL: I think the other would actually be in

a sense better because I don't think you have any obligation

to confer -- excuse me, to identify at this point. I don't

see any reason why it needs to occur.

JUDGE BATES: But what would be the harm if that were

a requirement?

MR. SUNDAHL: Well, to follow up on a couple of the

cases that I mentioned in my presentation, it promotes rather

than reduces the chance of challenge ahead of time regarding

the competency qualifications of the witness.

The one case that I mentioned, the one from actually

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most problematic and the most knowledgeable, both, was the

supervisor of the employee who's suing on the basis of

harassment and discrimination. And that person wanted the

supervisor, who was the perpetrator, to be the one designated

as the witness because he was the immediate supervisor. And

that was not allowed in that case, and I think for good

reason. He was diametrically opposed in theory to the

position of the defendant organization because he was acting

within the scope of his employment. That's the position he's

going to be forced to take.

That's one example, and only one.

JUDGE BATES: Let me ask you this question: We've

heard from numerous federal judges, district judges, and

magistrate judges, that there really aren't Rule 30(b)(6)

issues that are brought to the court for resolution that

often. That to the extent that there are any issues that

arise, the lawyers tend to work them out. And maybe that's an

inefficient process and somebody needs to address that. But

the judges don't get burdened with it.

Do you believe if there were a requirement to

identify the witness seven days, five days in advance, that

that would lead to motions being brought to the judge that

this is the wrong witness? Is that really what would happen?

MR. SUNDAHL: In answer to your question, let me

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have the obligation to meet and confer, you're advising me,

and I concur with you, that the federal judges don't see a lot

of this problem being brought to their attention.

So we have a known in the past. If we want to

replace that known in the past with an unknown, which is what

happens if you now impose this requirement, then I would

respectfully submit that we are entering into a very gray area

that's unnecessary to go to.

JUDGE BATES: I'm not sure you answered my question,

though. Do you really believe that it would lead to more

motions practice with emergency motions being brought to the

judge immediately before the deposition?

MR. SUNDAHL: Yes.

Yes, I do. Because if there's a conflict about who

is or is not the most knowledgeable, the most proper to be

able to appear, and you allow your opponent to become involved

in that decision, then I think that that really creates

something that the body of law that's been established to date

does not support.

JUDGE ERICKSEN: So you think that identification is

going to lead to resurrection of the concept of the witness

needing to be the most knowledgeable? Because there's no

reference in the draft rule about the most knowledgeable.

MR. SUNDAHL: I understand that. But that is

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questions and in the answers, that people are going to be

wondering and posing questions about who is or is not the

appropriate -- the most appropriate witness for the

organization.

JUDGE BATES: What if the committee note said

something about this is no change in the law, that you don't

have to have the most knowledgeable person, and also was very

unequivocal in stating that the choice of the witness remains

with the organization? Why would that create a problem?

MR. SUNDAHL: That would certainly help if that were

made emphatically, yes.

So essentially, we're coming from in Wyoming, we're

comfortable with the relationship that the lawyers in Wyoming

have with the federal courts, the willingness on the part of

the federal courts to use the rules of proportionality in

evaluating disputes, the willingness of the federal courts in

Wyoming to be able to adopt the protective order process if

necessary in advance of the deposition.

JUDGE JORDAN: You've got great judges there.

MR. SUNDAHL: We do.

JUDGE JORDAN: So what is the harm, though, if

advanced identification -- with the caveats and the advisory

committee note on the sort Judge Bates noted, would it not be

on balance a helpful thing if a witness were to be identified

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were going to depose anyway, why don't we talk about how to

arrange this so that that individual only has to appear once?

Isn't that sort of -- doesn't that lead to efficiencies that

would be salutary?

JUDGE BATES: That combination of 30(b)(6) and normal

30 deposition.

MR. SUNDAHL: I agree. For example, Judge Bates,

when you were mentioning that somebody might be copied on a

document and therefore you have to figure out who the proper

person is who's going to appear, because the approach to the

deposition may be different, the answer to that is that if you

know who that person is, know that that person had a copy of

the document you want to inquire about, you can always do a 30

witness on them.

JUDGE BATES: I think Judge Conrad -- Jordan's

question is isn't there an efficiency from identifying the

witness because then there's a possibility of sort of

combining the two depositions that might otherwise be

occurring of that same individual.

MR. SUNDAHL: To be direct, yes. That is an

efficiency. I'm not so sure that it really makes any

difference. I think people actually do talk about those

things informally anyway. At least we do in Wyoming.

JUDGE JORDAN: So then the question arises if it's

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vigorous concern? About, again, not talking about meeting and

conferring at this point, but just the question of identifying

the witness by name and title.

MR. SUNDAHL: Well, to answer the question as I have

previously, if it's not currently broken and it currently

works well, without the identity having to be disclosed and

there haven't been reported cases, why do we want to change it

in the first place?

JUDGE BATES: So one of the things that the rules

process does is receive a lot of information as to what the

best practices are, what the good lawyers do anyway. But a

rule sometimes is intended to address not just what the good

lawyers do, but to take that and to set it for all of the

lawyers to follow. If the good lawyers are doing something,

why not have a rule that all lawyers will then undertake.

MR. SUNDAHL: If I may be so bold --

JUDGE BATES: You may.

MR. SUNDAHL: If the bad lawyers, and there are bad

lawyers out there, want to use the appropriate rule of

30(b)(6) to conduct a deposition, they're going to do it in

any way they can do it to create the most difficulty for the

organization and to create the biggest advantage for the

plaintiff, typically. And so the bad lawyers are going to be

the ones that are going to be dragging the good lawyers along

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alone at all costs.

JUDGE BATES: Thank you very much, Mr. Sundahl. We

appreciate it.

Next we'll hear from Lee Mickus.

MR. MICKUS: Thank you very much. I appreciate the

chance to appear before the committee.

I come to you as a civil litigator with about 25

years of experience. I practice at a firm called

Taylor Anderson in Denver, but my practice is national. I

typically represent manufacturers in product liability cases,

mass torts, and patent litigation. And over the course of my

career, I've been involved in 30(b)(6) practice on dozens and

dozens of occasions ranging from working to identify the

witness to preparing him to testify, raising objections, and

ultimately defending the deposition.

My perspective on this rule is that the proposed

amendment fails to address the real needs of 30(b)(6) and

represents a missed opportunity. What is proposed, and in

particular the mandate to confer regarding witness identity,

or even as I'm now hearing, the idea of simple disclosure of

the name and title, will actually make 30(b)(6) depositions

more troublesome and more difficult.

Now, I want to respond to some of the questions that

I have heard raised about, what's the problem? Isn't this

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party.

And my response is no. It's not about surprise.

It's about information that is irrelevant and information that

is going to become a distraction and ultimately lead to some

more disputes. 

Why do I say that? Well, first off, it's irrelevant

because, as we all know, 30(b)(6) depositions are about the

corporate knowledge, and case after case, and I've cited them

to you in my written comments, the courts have determined and

said explicitly the name of the witness is simply irrelevant.

But why do I care? And I will tell you, in my own

practice it is highly unusual for the name to be disclosed in

advance of the deposition. Why is that -- that the case? For

me, in those instances where the name has been disclosed in

advance, it changes the nature of the process and the

deposition becomes muddled and it becomes confusing and the

record becomes discombobulated.

JUDGE ERICKSEN: Is that because the questioning

blurs the line between the corporate representative and the

individual?

MR. MICKUS: Exactly. Exactly. Because once that

information is put on the table, we can expect that the

noticing party is going to use it. Engaging in social media

searches, engaging in transcript reviews if the witness has

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background.

And now the deposition becomes not just about what is

the corporate information that is reasonably available on X,

Y, and Z issues, it becomes what is the personal experience of

this person. What did they do at a previous employer, how did

the previous employer handle this same issue.

JUDGE ERICKSEN: Can you imagine a time when you're

meeting and conferring in advance about the number of topics.

Let's say you get deposition notice that is one of those

outlier extremes that we heard about where, say, 150 topics or

something.

MR. MICKUS: Sure. 

JUDGE ERICKSEN: So you're meeting and conferring.

Can you imagine a situation in which a discussion about the

person who might be able to testify would help you mutually

come to a winnowing down of those topics? There's no way we

can have one person know this and this, we might have somebody

who would know this subcategory, and the deposition notice

could be broken down?

MR. MICKUS: You know, what I'm envisioning, as I

think about the scenario you've posed, is frankly a discussion

not just about deposition topics, I would imagine about

discussion about the discovery as a whole, because rarely is

it a case where only a 30(b)(6) deposition occurs. Usually

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discussion may go, okay, I've seen your 150-topic notice. All

right, Mr. Plaintiff's counsel, who else are you considering

deposing in this case? And if they tell me, okay, Joe Smith

and Bob Jones, I'm going to say --

PROF. MARCUS: They have to reveal that, you think.

MR. MICKUS: They're going to anyway.

JUDGE ERICKSEN: They have to if they are going to

depose them.

MR. MICKUS: If they're going to depose those people,

then we have that discussion as part of a broader context of

how discovery is going to proceed.

And I've actually suggested that that is the sort of

conversation that ought to be happening in preliminary cases.

PROF. MARCUS: And if that discussion leads to

identification of witnesses A, B, and C, who would also be

probably those you'd designate, you don't want to tell them

that?

JUDGE ERICKSEN: I think he's saying you might tell

them that.

MR. MICKUS: Conceivably, I might. But what I don't

want to have happen is for a deposition to degenerate into

this muddle where we're proceeding with a 30(a) deposition as

well as a 30(b)(6) at the same time, and then I've got to

object every third question that that's outside the scope, the

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he's testifying or she's testifying about his or her personal

knowledge. And then, if that deposition ultimately gets

presented at trial, you can imagine the distraction that that

becomes with having to have instructions to the jury about the

capacity of the witness in giving this answer versus that

answer. That makes for a real mess at trial.

JUDGE BATES: Have you had that occur?

MR. MICKUS: Yes.

JUDGE BATES: Has it occurred in situations where the

reason that it occurred was because you identified the witness

in advance of the deposition?

MR. MICKUS: Yes.

JUDGE BATES: How often has that happened?

MR. MICKUS: Because I rarely will identify the

witness in advance, and it's because of that. In fact, three

or four times come immediately to mind, Your Honor, where I

have revealed the name and because of that the information

gets used and the deposition just turns into this muddled mess

where the -- where it becomes a less efficient process.

JUDGE ERICKSEN: The idea is because in advance of a

deposition, the defense or whoever is the recipient of the

notice, has to go get a protective order because this is

unwieldy or whatever the problem.

Then, you get to the deposition, you have a witness

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the deposition or you have to go to court after the

deposition, and the idea is to try to minimize those problems

on either end. There is a timing difference, obviously,

between the -- when the two types of disputes arise.

If there is a meet and confer about the identity of

the witness, would that not make it more difficult to complain

later that the wrong person was selected?

MR. MICKUS: I guess I don't see that because

ultimately if my witness, whoever that person might be, can't

answer the questions because that witness was not properly

prepared and I didn't anticipate the direction that the

questioning was going to head, then that's ultimately going to

be on me. And I can't imagine a scenario where my opponent is

going to say, you give me Bob Jones and I guarantee you I will

never object. I don't anticipate any good advocate would ever

say that. What they will say is, I want Bob Jones, and, of

course, when I hear that, then I immediately become skeptical

because it is an adversarial system, and if he wants Bob

Jones, then I think counsel on the other side has something,

and I'm concerned about that.

And so I think frankly there is even a risk that the

adversarial nature could lead to more of a breakdown than more

of the parties coming together.

JUDGE BATES: Mr. Mickus, let me ask you to address

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The response from that witness was it just doesn't happen.

The question is, if there's a problem with respect, as we hear

frequently, with respect to the correct witness being produced

and that witness being properly prepared, how can we best deal

with that from a rules perspective?

MR. MICKUS: Thank you. I was hoping I would get a

chance to address Judge Campbell's question. 

In my perspective, some advancement would be gained

from the meet and confer about the topics in advance. I think

there's going to be a small step, but I agree with what we

have heard, that that is largely already taking place to some

extent.

But I think the better avenue is to allow an

objections procedure that is defined so that if -- and

ultimately, if a witness is improperly prepared, I will tell

you from my perspective, if that happens at a deposition, that

is because there was not a mutual understanding of the nature

of the topics that were going to be addressed at the

deposition.

JUDGE BATES: What do you mean objection procedure?

Do you mean just something that is between the lawyers, or do

you mean something in the rules that brings objections to the

court for resolution in advance of the deposition?

MR. MICKUS: The latter.

1 0 : 2 2 : 2 0 JUDGE BATES: That doesn't exist for any deposition

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now, does it?

MR. MICKUS: It does not. But Rule 30(b)(6) is very

different.

JUDGE BATES: Don't you think that would increase

dramatically the amount of litigation over 30(b)(6) issues

that the judges have to deal with?

MR. MICKUS: I do not. I do --

JUDGE BATES: Then what's the purpose of it if it

won't do that?

MR. MICKUS: The purpose of it is there are going to

be some circumstances, some topics, some noticing counsel

where we just can't communicate and we, for whatever reason,

both sides are dug in and we have a genuine dispute about

discovery. Maybe it's about proportionality of a particular

topic. Maybe it's about relevance of a particular topic.

Maybe it's about how far that topic goes into privilege issues

or work product. We can envision a bunch of different

scenarios.

I never want to bring a discovery dispute to the

federal courts because I know they're not popular things on

the dockets. It's going to be a very, very serious issue.

And if I have that, then I can actually get some definition.

I can force a resolution and force a meeting of the mind where

there is an objective determination that is made: This is

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JUDGE JORDAN: Since this is, in the end, sort of a

cost-benefit analysis, right, your arguments against advanced

identification are explicitly -- it will cause more trouble

than it will solve, does incorporating a Rule 45 kind of

procedure into the 30(b)(6) process, is that going to cause

more problems than it resolves? We've heard emphatically from

some of your colleagues on the defense bar side if it ain't

broke, don't fix it.

Is inserting this into the rule going to, in fact, be

more costly than beneficial?

MR. MICKUS: I don't think so. I think you would get

more benefit out of it if there is an opportunity to get the

definition of what the topic is and how the witness is going

to be able to proceed so the boundaries are established.

Usually, usually counsel can work that out. But if it can't

get worked out, it's going to ultimately end up in one of

these motions anyway where noticing counsel is going to

complain that my witness was not properly prepared. I want my

witness to be properly prepared. There is nothing good that

comes out from --

JUDGE JORDAN: It will. If it's really a problem, it

will come up. So if we invite the fight before the

deposition, when we don't know whether it is actually going to

be a problem, how is that beneficial to the system and not

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MR. MICKUS: I don't know that it's inviting. It's

allowing a procedure so that issue can be addressed where we

can work it out without having to go through the deposition

and then go through motions on the back end.

And another alternative that I know has been

considered is working this into the initial case conferences,

where discussions about the nature of the discovery plan, and

especially 30(b)(6)s, are laid out so I can start the planning

process, I can start trying to identify what the documents are

that my witnesses are going to need to review, who else in the

department we need to interview, all of those sorts of things.

So, again, it is all about developing a mutual

understanding so I can get my witnesses prepared, and wherever

that happens, it needs to happen at some point. And when the

process breaks down, that's where the breakdown occurs.

JUDGE BATES: All right. Mr. Mickus, thank you very

much. We appreciate your testimony.

MR. MICKUS: Thank you.

JUDGE BATES: Next we will hear from Bradley Smith,

please.

MR. SMITH: Good morning. I appreciate the

opportunity to testify here today.

My name is Bradley Smith. I'm from Jackson,

Mississippi. I'm with Baker Donelson in the Jackson,

1 0 : 2 6 : 1 9 Mississippi office. I've been litigating for 25 years, and I

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have defended and taken 30(b)(6) depositions throughout that

time.

I want to focus today on this notice provision with

respect to the identity of the witness. And if I may, I'd

like to provide you all with two recent examples for two

companies that -- and I'll start with one that I think makes

it very problematic if this proposed change goes into effect.

There are, as you're aware, litigation with -- I

guess some businesses where the businesses are not in a mesh

type litigation or automotive product liability litigation

where they have established a very vast resource general

counsel procedures they receive and defend -- receive 30(b)(6)

notices and defend a great deal.

Recently, defendant, a dram shop case for a global

wine manufacturer, one of the largest in the world,

headquartered in California, they sponsored an event in

Mississippi. There was an awful accident and the 30(b)(6)

deposition notice was received.

I had actually flown to California. We got ready one

round, and then when we were back preparing two days before

the deposition, it became apparent to me that the witness was

not the appropriate witness because she would not be able to

answer the questions. And we had worked with her previously

and I had several phone conversations with her.

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to San Francisco where the depositions were being held, and

worked all night and all day preparing for the deposition.

And the reason we did that was because the questions in the

30(b)(6) notice were numerous, but that the plaintiff's lawyer

and I both had agreed that they were arguably relevant, I

wanted to make certain that those questions were answered,

information was provided.

And, in fact, what Mr. Kenney said with respect to if

you're going to make this change, the question of why. And we

talked about harm. But if the purpose of a 30(b)(6) is for

that lawyer to obtain the information critical to proving

their claims asserted in the complaint and they designate the

topics that will enable them to do that, then the identity of

the witness is not relevant to that.

And one of -- I think, Your Honor, Justice Bates,

you -- I think -- I believe you said if you know the witness,

it would not make a difference. You mentioned I think one set

of documents may be focused on, and my response to that is it

shouldn't make a difference, and your responsibility is to

prove your claims through documents, you should determine

which documents are best to establish your claims. And it

shouldn't matter who the witnesses is.

In that instance, and I can count on one hand -- go

ahead.

1 0 : 2 9 : 4 1 JUDGE BATES: You've mentioned specific situation,

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and I'm curious as to how a rule that required either or both

preidentification of the witness some days in advance of the

deposition or meet and confer on the identity of the witness

would have made the situation worse in that case.

MR. SMITH: Well, if --

JUDGE BATES: Sounds like it was a bad situation

anyway. How would that have made it worse? 

MR. SMITH: An opportunistic plaintiffs lawyer. And

the plaintiffs lawyer in this case, we have a long

relationship, and all he cared about was getting the

information he wanted. He did not care about who was

providing the information.

I can count on one hand how many times I've had

opposing counsel ask or request identity of a witness, and the

reason is, fortunately for most of my 30(b)(6)s, they know

what they want and they want it and they don't care who is

providing it because it does not matter because a 30(b)(6) is

not for that purpose.

But in that situation, if there were a seven- or

four-day notice period, I would be in violation of that. I

would have called this opposing counsel as he's boarding a

flight from Jackson, Mississippi, flying to San Francisco,

saying she's not going to testify.

JUDGE BATES: There probably would have -- with good

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perhaps a two-day postponement of the deposition, so it would

have been better for all involved.

MR. SMITH: Well, I don't think it would have been

better for the company. It would have been more work and it

would have been -- it created a difficult circumstance where

there was no need.

The other situation was a pedicle screw products

liability case in Denver. The identified -- the witnesses

that I identified, it was a regulatory submission and approval

witness, and then the chief R&D engineering side of it. So we

had three witnesses that I had worked with all of them.

When we got to the preparation phase, and it was two

days in Denver preparing for this deposition, it became clear

to me that the chief engineer in R&D was not the engineer that

we needed to be testifying. Because of the nature of the

claims in terms of failure rates of the pedicle screw, the

medical grade surgical steel that was purchased from China, it

became apparent during the prep process that the lower

engineers are the ones that are more involved directly with

the Chinese manufacturer, those were the witnesses that needed

to be designated -- and this was two days before the

deposition -- in order to fully and adequately respond to the

30(b)(6) topics.

So I gave you that example. I mean, I was

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And I think, Mr. Sellers, when you mentioned, would

it not be best to -- and in that case, if I was going to give

the identity to the plaintiff's counsel, he would say, I want

the chief of R&D engineering. Right? That's who you want;

right? Well, in that circumstance, that's not the best -- I

found out after working two days --

JUDGE BATES: But you have the opportunity to say

that even with the rule as proposed in terms of an amendment

to say, no, I get to choose who the witness is. And I don't

even have to explain all of reasons for it if there are some

reasons that shouldn't be shared with the other side.

MR. SMITH: I would, Your Honor, but the proposed

amendment as it is now, the opposing counsel would be able to

make an argument that would be effective with certain federal

judges in Mississippi that, hey, they switched the witness the

day before or two days before. He told me he pulled the chief

R&D that I had been preparing for to depose him, and I had to

depose those lower engineers.

And so I just -- if the purpose is to advance your

case and get the information you want, I respectfully submit

that the identity does not matter. It cannot be relevant. If

you are truly trying to advance your claims in the complaint

and finding out the information, it might be helpful for

preliminary, as he mentioned, but I just don't think it's

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companies that I mentioned that don't have a large 30(b)(6)

practice.

JUDGE BATES: How about the companies with the large

30(b)(6) practice that you mentioned who frequently are

dealing with this? We're not looking to benefit one side or

the other; we're looking to -- looking for benefits to the

civil justice system. And wouldn't it be beneficial for a

noticing party to know that the witness was Joe Smith, and

Joe Smith then he could look up and had been a 30(b)(6)

deposition deponent for six other occasions and they could

look at those transcripts. Wouldn't it make it a more

efficient deposition?

MR. SMITH: It might --

JUDGE BATES: It might be more difficult for the

company in some ways, but certainly would be more efficient,

wouldn't it?

MR. SMITH: It might be more efficient for that

particular lawyer for the preliminary stuff. And I'll give

you an example of a --

JUDGE BATES: Not just preliminary stuff if they gave

previous 30(b)(6) depositions.

MR. SMITH: That's -- I would respectfully submit

that is not the purpose of it. I want to give one example

where that's happened for an automotive manufacturer that I

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counsel said, I'm not going to depose him, I know what he's

going to say. So --

JUDGE JORDAN: Well, isn't that a benefit to the

system? Right? Didn't you, by providing that information and

the other side saying we don't need that, that kind of goes to

the point.

You've said that there are five occasions, you can

count on one hand the number of times people ask. So can you

share with us on those occasions when it was asked, did it

turn into a problem or did it turn into something perhaps

efficiency producing like the instance you just cited?

MR. SMITH: Well, it was not a problem when the name

was given, but it -- if it proves my point, if the particular

party lawyer needs the 30(b)(6), then the identity, if the

sharing of the identity makes the 30(b)(6) nonessential to his

case, then I question whether the requirement, the proposed

amendment requiring the identity to be disclosed, is doing

anything to help the 30(b)(6) process and to help those taking

the depositions get the knowledge and information they really

need.

JUDGE BATES: Any last question for Mr. Smith?

Mr. Smith, thank you very much.

MR. SMITH: Thank you.

JUDGE BATES: We'll hear next from Bill Rossbach.

1 0 : 3 6 : 4 1 MR. ROSSBACH: Thank you, all. I'm Bill Rossbach

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from Missoula, Montana. I've had the opportunity to talk to

some of you previously as a member of AAJ at a meeting we had

informally about this. Some of those topics I'm not going

to -- were in my written materials, so I'm going to kind of

try to sort of like a little bit of a rebuttal here, kind of

skip around a little bit and try to address some of the

questions.

First of all, I start -- in any testimony about any

of the rule changes, I start with Rule 1, and does Rule 1 --

is Rule 1 advanced? Just, speedy, and inexpensive? Are those

principles advanced by the amendments? And my suggestion is,

is that the meet and confer and identity of witnesses will

advance just, speedy, and inexpensive.

Let me -- I gave some examples. I've been a trial

lawyer for almost 40 years. I've tried everything from auto

accidents, but mostly I try scientific and medical cases,

technical cases, product liability. I started doing

individual product liability cases right out of law school.

One of the first ones I mention in here was the battery case,

exploding battery case. I took one 30(b)(6) deposition and

settled the case. I had hundreds and of engineers and

documents and thousands of pages of documents. I looked

through the documents. I found a couple of areas that I

thought were really important, my expert said. We took one

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Recently, I'm still involved in an environmental

case, and this addresses the issue of identification. First

of all, let me say I have -- I can't recall, and I'm talking

to my colleagues here who have done many 30(b)(6)s. In 40

years I can't remember a 30(b)(6) where we didn't have the

names of the witnesses at some point in the process. I can't

remember a single one.

JUDGE JORDAN: When you say at some point in the

process --

JUDGE BATES: You mean before the start of the

deposition?

MR. ROSSBACH: Let me get to that. Okay. I'll give

you my example. In one of them we learned about it two days

in advance.

JUDGE JORDAN: Okay. We're hearing really

diametrically opposite experiences --

MR. ROSSBACH: I understand.

JUDGE JORDAN: -- people saying, I've practiced for

four decades and I can count on one hand with fingers missing

the number of times people have asked and you say, no, it

happens all the time, so --

MR. ROSSBACH: It happened every time that I can

remember.

JUDGE JORDAN: Can I just ask you real quickly, you

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why disclosure of names of witnesses should not be required.

You listened here today to people saying it will cause

disruption because there will be a blurring of the line

between ordinary Rule 30 and 30(b)(6) depositions, we'll get

into irrelevant material, there will be multiple objections

and perhaps need to go to the court to get the deposition

confined to its proper scope. That sounds like a good and

principled reason if it's accurate.

What's your response to that?

MR. ROSSBACH: Well, first of all, I never had that

experience in exactly that form. Part of the -- part of the

reason you have a meet and confer is to be able to go through

this and to be able to focus on the topics.

And let me give you an example, is a recent case, the

environmental case involving the power plant that I addressed

in my -- we had -- originally we set out something like 50

matters to be discussed, and we identified documents that

talked about that, and we even quoted some of the material in

the notice, in the specific list. They came back and said,

well, you know, this isn't very clear to us, how about this,

and we had this ongoing iterative process.

JUDGE JORDAN: Great. Meet and conferring about

topics. That's really not the subject of my question.

MR. ROSSBACH: But that's what I'm going to get to.

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witnesses and these witnesses are going to be available on

these dates. We said, fine. We started preparing. They

named the witnesses. A week before, they came in and said,

well, looks like we can do this with only two witnesses or

three witnesses, and we ended up having two witnesses in the

case, and those were the only witnesses that we ever needed in

the case.

JUDGE JORDAN: And if you didn't know the names of

the witnesses but they said we're going to do four, now we're

going to do two, would that have made a difference or would

you have had the same efficiency?

MR. ROSSBACH: Well, part of the efficiency was by

having the names of the witnesses, we were able to then go

word search the documents and make sure that we had all of the

documents covering those topics for those individuals.

I mean, example in the battery case, I had 100

engineers in various documents. When they identified the

witness, I was able to see which part of those documents this

witness was involved in and I was able to focus a little bit

better the questions that I made.

JUDGE ERICKSEN: Isn't that the exact muddling that

we heard one of the other speakers talk about? That if you're

asking the person about the things they actually know

personally as opposed to the information that they've been

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know when you're asking questions whether you're asking based

on the personal knowledge or based on the corporate

representative job?

MR. ROSSBACH: I'm not sure it matters. I mean,

you're asking the questions what was the corporation doing,

and then if you have a document that is dealing with that

particular topic, you can show it to him and help him -- I

mean --

JUDGE ERICKSEN: It has to do --

MR. ROSSBACH: -- it makes it a more efficient

process if you have actual specific documents that talk about

it. That's just the reality of taking a deposition.

JUDGE ERICKSEN: And so either one would be

admissible as substance as nonhearsay?

MR. ROSSBACH: If -- if -- if the deposition -- if

the deposition is -- if you're talking about the topic of the

deposition, if it's within the realm of the matter, I don't

see what difference it makes.

I see I'm running out of time.

JUDGE JORDAN: That seems to be precisely the point,

so I'll try to ask this quickly. The assertion we keep

hearing is the identity of the witness should be irrelevant,

whoever is on that witness chair has got to speak to those

topics and it shouldn't matter whose mouth is giving the

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So what is it about knowing the identity of the

witness that is relevant and advances the purpose of the

30(b)(6) deposition?

MR. ROSSBACH: Okay. What it matters is that you

might have hundreds of thousands of documents involving a

particular topic. If you have documents that a witness has

particularly been involved in, it's going to be a more

efficient process. You're not going to be fishing around

looking at thousands of documents and asking thousands of

questions about a particular topic when you have particular

documents that that deponent knows about.

I would like to --

JUDGE BATES: So if in fact there were a requirement

that the witness be identified in advance, would it also be an

aid to efficiency to require the noticing party to identify

the documents that they were going to use at the deposition?

MR. ROSSBACH: I think there's a value to having some

of those documents. The problem is, is it's just like

anything, you can't anticipate where it's going to go. I try

to identify the documents. But you're going through something

and something comes up that's part of that matter and you have

just another document that you remember that may go and help

kind of focus the deposition further.

I do try to identify documents. And I think talking

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totally agree with that.

I have a point, though, that I think is important

here about the note for the committee and that is, is that we

don't -- we have plenty of procedures already in place. We

have Rule 26. Rule 26, if it's the guidepost to our meet and

confer, will help you and the lawyers, who are good lawyers,

understand. Is this proportional? Are these matters

proportional? Is the evidence that's coming out of these

matters proportional to the case? And that's already there.

And there's plenty of processes for making

objections, motions for protective order, they all exist

already. And I think the meet and confer is an important part

of that process. I've never had a case where we haven't had

some meet and confer and some discussion about who the

witnesses might be and all of that. And as a result I've

never had a motion practice after the motion -- after the

30(b)(6).

JUDGE CAMPBELL: So what is your concern about the

note?

MR. ROSSBACH: No, my concern about the note was

maybe add in something about the processes that already exist,

Rule 26, objections at the time, objections after the fact,

motions for protective order are all available processes that

we don't have to -- we don't have to create a separate set of

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protect the parties in that case.

JUDGE BATES: So let me carry Judge Campbell's order

with you and ask you from your perspective, which is the other

side of the V, for the most part, do you --

MR. ROSSBACH: I've defended 30(b)(6)s as well.

JUDGE BATES: But do you think, from your experience,

is there a problem with having the correct witness and a

prepared witness? Is that a recurring problem?

MR. ROSSBACH: It occurs. But I don't -- I think,

you know, when you're dealing -- no. It hasn't occurred in a

significant level for me. I mean, that's my personal

experience about it. But it has happened. And in those cases

you may have to -- you may do another supplemental 30(b)(6) to

get the right person or -- or it may have been a problem with

the way you set the notice up, and that's why a meet and

confer is important so that both sides understand exactly what

the question is, what are you trying to get from this.

And that's what happened in the most recent case,

huge case. Millions of dollars at stake, we took four

depositions in the case and it's ready for trial. Four

30(b)(6) depositions and it's ready for trial. And we talked

about it extensively before we got there. That's how it got

resolved. That's how we -- just, speedy, and inexpensive.

JUDGE BATES: All right. Thank you very much,

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Next, Patrick Fowler, please.

MR. FOWLER: Good morning, sir. 

JUDGE BATES: Good morning.

MR. FOWLER: Thank you for giving me the opportunity

to speak. My name is Patrick Fowler. I'm with the law firm

Snell & Wilmer here in Phoenix. And like a number of the

other people with gray hair, I have been practicing for about

30 years, primarily representing corporate defendants and

product liability and business litigation. I've probably -- I

was thinking back on it, probably defended about a hundred

30(b)(6) depositions, and have taken a number as well.

The point I want to make and my concern with the

proposed amendment, and I would urge the committee not to

adopt the portion of the proposed amendment concerning

essentially the disclosure of the identity of witnesses in

advance of the 30(b)(6). I think it is a solution in search

of a problem. I think the unintended consequences of adopting

this part of the proposed amendment will inevitably lead to

the weaponization of this essentially new discovery

requirement.

Lawyers being lawyers, they find ways to use new

rules to their advantage. And I think what will happen here

is, as other speakers have addressed, you give the name of the

witness seven days, whatever, in advance. The deposition,

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then invariably turn into a hybrid 30(b)(6) and percipient

witness deposition.

And as Mr. Mickus explained earlier, it will lead to

a muddled record where, if I'm defending the deposition and

there are questions asked which are clearly outside of the

scope of the topics in the 30(b)(6) but are unique to that

particular person, then I'll be having to make objections

repeatedly that the question is outside the scope, that it's

not binding on the corporation. But I can't, you know,

instruct the witness not to answer because that wouldn't be

appropriate.

So you end up with a muddled deposition which will be

difficult to use if and when it goes to trial.

JUDGE JORDAN: Has it happened to you before?

MR. FOWLER: Yes.

JUDGE JORDAN: Out of the hundred-plus depositions,

30(b)(6) depositions you've dealt with, on how many occasions,

if any, did the question of the identity of a witness come up

in advance?

MR. FOWLER: In my experience, and I practice in

Arizona and across the country, it's unusual for a plaintiff

lawyer to ask me the name of the corporate witness. In some

cases they infer it because it is pattern litigation and they

may have an assumption of who it is.

1 0 : 5 0 : 3 3 JUDGE JORDAN: But it has come up on occasion where

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they've asked?

MR. FOWLER: It has come up on occasion.

JUDGE JORDAN: And has that proved problematic?

MR. FOWLER: It has in some cases. Not every case.

In some cases it's not been a problem.

Where I see the issue -- if it's a deposition,

30(b)(6), and there are five or ten or 15 topics, something

you can manageably cover in a seven-hour time frame, it's

usually not going to be an issue.

Where the problem arises is when I get a 95 topic

30(b)(6), which is supposedly going to be covered in seven

hours, and of course it isn't. And then the opposing party,

the noticing party learns the name of the corporate designee,

you spend days, maybe weeks getting ready for a 30(b)(6) where

there are 95 topics, and then the deposition spirals into what

does that person know, what did that person testify to, not as

a corporate representative but as a personal -- in their

personal capacity in a deposition three years ago. And in

which case the idea of a just, speedy, and efficient process

is thrown out the window because of the days and days I spent

preparing the witness or witnesses to cover the topics is

wasted.

JUDGE JORDAN: Did you ever have an experience where

you shared the identity of the witness in advance and it

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in the way of shortening the deposition or in the way of

making it a more efficient process in some other way?

MR. FOWLER: Yes. That has happened in a couple of

cases where I've had a longstanding relationship with the

noticing party, plaintiff attorney, and it was a choice that

my client and I made as opposed to being mandated.

And I think mandating this, requiring that it be

disclosed, is where I think the problem comes in, because if

you are working well with the opposing counsel, if it is

pattern litigation where they probably know who the witness is

going to be anyway, it usually isn't an issue.

But as I said to start with, this is essentially

going to be a new discovery tool. And it will be weaponized,

and that will cause problems that are unanticipated.

JUDGE ERICKSEN: You normally do have a meet and

confer of some sort; is that right?

MR. FOWLER: I do.

JUDGE ERICKSEN: And during that you may, in unusual

situations, reveal the identity of the witness?

MR. FOWLER: No, not typically during that time.

Where we have a meet and confer, particularly if it's dozens

and dozens and dozens of topics. If it's a small number of

topics, we may have a brief phone call if the notice is clear

the topics --

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so fast. If the draft rule does not have the identity of the

witnesses, in your view, would the meet-and-confer process

have to be iterative? Or is the -- is the language about how

sometimes it's going to have to be iterative driven by the

fact that the identity of the witness can't really be

discussed until the topics are worked out and -- at least in

the rules process that is how that iterative language got in

there?

MR. FOWLER: Sure. If there are 65, 95 topics, I'm

not going to know who my witness is, my designees are going to

be, until I'm clear as to what the topics actually are going

to be.

That's why oftentimes I'll have the opposing side

send me e-mails saying, hey, I'm thinking about a 30(b)(6)

with these topics, but they're very general, it's not formal,

and I always respond saying, that's fine, but until you send

me something more specific as to what you're looking for, I

can't really begin my search as to who the designees will be

until I know what the topics are.

And so I think the meet and confer to talk about the

number, and I think there should be some limit on the number

of topics, and the description of the topics is fine and I'm

engaging in that already virtually all the time. It's the

requirement that I have to tell the other side who my

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JUDGE ERICKSEN: Do you not have a view right off the

top of your head whether or not the process would remain

iterative, if the language got changed?

MR. FOWLER: I think the process would remain

iterative because in my practice, my experience is I talk with

a plaintiff's lawyer, either by phone or by e-mail, going over

the topics they had proposed to try to narrow them down and to

make sure that I understand what it is they're looking for.

So I avoid the problem at the deposition where we didn't have

a meeting of the mind what the topic is. I just think the

section of the proposed amendment asking or including a

discussion of who the identity of the designee is going to be

shouldn't be included.

JUDGE BATES: Let me ask you about the numerical

limits, since you mentioned it.

What would be the need for numerical limit? Isn't

that a problem with the current practice? Takes care of it

already?

MR. FOWLER: I don't know, because if I get a

deposition notice that has 95 topics, and that is not an

outlier in my practice and the cases that I handle, and there

is seven-hour limit, everybody knows there's no way you're

going to get through even a third of the 95 topics. I prepare

my witness for that.

1 0 : 5 6 : 1 0 JUDGE BATES: And that's the inefficiency, that you

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have to overprepare.

MR. FOWLER: You have to overprepare, and that allows

the noticing party to pick four or five of those topics,

knowing that I've had to prepare for 95 and get into the weeds

on four or five --

JUDGE BATES: But isn't that taken care of by meeting

and conferring on the topics even without a numerical limit

because you've discussed with the other side that, you know,

we can't do 95 topics in a seven-hour deposition, so you're

going to have to focus this a little bit better.

MR. FOWLER: I've had that discussion countless times

and they say, no, I want to include that.

JUDGE BATES: Seems like a pretty unreasonable

position.

But the second question I have on that is, wouldn't

limiting the number of topics cause the noticing party to just

state broad topics?

MR. FOWLER: I don't think so, because if they know

what they're saying to looking for, they ought to state the

topic with reasonable particularity. I mean, I get 30(b)(6)

topics, I want you to produce a witness to discuss all of the

documents that corporate defendant has produced. Well, that's

a nonstarter, I mean particularly in a case where we produced

18,000 pages of documents.

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number of topics, would be inefficient because it would

require the noticing party to think more fully about what it

is they want to get out of the deposition as opposed to it

just being a sanctioned fishing expedition.

JUDGE BATES: Any other last questions for

Mr. Fowler?

Mr. Fowler, thank you very much. We appreciate you

coming.

MR. FOWLER: Thank you.

JUDGE BATES: Before the break, one last witness, and

that will be Gray Culbreath.

MR. CULBREATH: Good morning. My name is

Gray Culbreath. I practice law in Columbia, South Carolina

with the law firm of Gallivan, White & Boyd, which has offices

in both North and South Carolina.

I practiced law for 30 years first as an officer of

the Judge Advocate Generals Court representing the Department

of the Army, and then subsequently representing corporations

and insurers. I'm a past president of South Carolina Defense

Attorneys' Association, a member of the American Board of

Trial Advocates, Federation of Defense & Corporate Counsel,

and Lawyers for Civil Justice.

The other piece I bring to this is I have taught on a

number of occasions, both at the state and federal level,

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authored papers about the same. That experience, coupled with

the practical experience, tells me that oftentimes

Rule 30(b)(6) is confusing at best. The case law that comes

from it is contradictory often and, as I wrote in one paper,

it can be a trap for the unwary.

Currently the rule lacks specifics and procedures,

which have resulted in these conflicting standards. And my

concern with the proposed amendments is that continues that.

They create potentially a new discovery obligation through

this meet and confer without even procedural guidance as to

what happens when that breaks down, which it does. As a

result, those amendments have a clear potential to create more

litigation. Inconsistent with Rule 1.

So what happens?

JUDGE BATES: What are the procedures that you think

should be added to the rule?

MR. CULBREATH: Judge Bates, I think something along

the lines of Rule 45 would be an appropriate procedure. I

think about my other experience in South Carolina -- 

JUDGE BATES: Essentially an objection procedure?

MR. CULBREATH: An objection procedure and a time

period. Because I think my own experience in South Carolina,

I can think of district judges that do at least three

different ways. So you have a motion for protective order

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abeyance until there's a ruling? If not, do you go forward

and the witness has to testify about the topics there's an

objection to? All of that is confused. And there's often no

resolution for anything.

I asked about the practical problems, does this

really happen? And albeit this is a state court experience,

in South Carolina the asbestos docket, state rules of civil

procedures, model federal rules. Last year -- went back with

one of my partners last night, and on the asbestos docket

there were 29 motions for protective order filed over 30(b)(6)

depositions, many of which, by different judges, didn't

resolve some of these issues.

And so this new procedure could create at best a

chaotic scenario because you meet and confer and you can't

agree on the topics, what's next? What's the responding

party's obligation?

JUDGE BATES: Does that not happen already in terms

of discussion of the topics or does the noticing party

identify the topics and then there's no further discussion?

MR. CULBREATH: I would say my experience,

Judge Bates, sometimes that -- sometimes there's a meet and

confer and there's a resolution, and sometimes there's not.

It's really dependent on the personalities and the individuals

involved in the case.

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confer less efficient than the cases in which there isn't? I

would think the problems would be greater in the cases where

there is no meet and confer.

MR. CULBREATH: Again, I think it depends on the

personalities because lawyers are sometimes wont to argue and

so you get into a meet and confer and there's no resolution

because one side believes it's X, topic X; the other believes

it's Y.

So let me move into the identity of the witness

because I think that has equally practical problems. And the

panel's clarified that identity means apparently name and

title of the individual. But -- 

JUDGE BATES: Well, I asked you to assume that. I

don't want to speak -- 

MR. CULBREATH: Well -- 

JUDGE BATES: -- for the subcommittee or the

committee.

MR. CULBREATH: But the rule remains it's the

testimony of the corporation. And the comments -- previously

the case law and the comments proposed make clear the

organization gets to designate who it wants.

It's acknowledged by the proposed committee notes

that the choice of a designee is ultimately the choice of the

organization.

1 1 : 0 2 : 4 5 As one of my colleagues before said, this sounds like

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a solution in search of a problem.

And let me finish up with really my own experience,

this happened in the past two months with a case, where some

of the evils that could come from this identity of the witness

came up, and if there had been a meet-and-confer requirement,

if we have had to go forward with it, I don't know how we

would have resolved it.

In that case what happened -- first, my client wasn't

a party to the litigation. We get a subpoena for a 30(b)(6)

deposition, documents already produced, and the other side has

a knowledge of the individuals involved in this discrete

incident that caused some damage to a product in excess of a

million dollars.

So they came to me and said, we've got these topics

and, oh, you're going to have Mr. Smith testify, aren't you?

I said, no, I don't think Mr. Smith's going to be the witness.

And I knew why Mr. Smith wasn't going to be the witness, but

that was based on my meeting with every witness, my evaluation

of those witnesses and making a decision in the best interest

of the client.

If we had gone forward, depending on the judge in

South Carolina, and I said we had to have a discussion about

the identity of the witness, I would have at some point said

to the judge, I can't tell you that. That's work product,

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This lawyer was insistent. Although it got resolved

through some cooler heads involved in the case.

JUDGE BATES: You think the identity of the witness

at some point shortly before the deposition takes place is

protected work product?

MR. CULBREATH: No, Your Honor. My mistake, I didn't

clarify what I meant by that.

They wanted to know why we weren't going to use

Mr. Smith as a witness.

JUDGE BATES: All right. That, I understand.

MR. CULBREATH: And I said since we're not going to

use Mr. Smith, we had to do an evaluative process, and it was

several days before the deposition where we actually

determined who that witness would be.

But here, without some clarity what the process is to

the procedures, then you could have motions seeking to want to

know why this person is the witness versus that person.

JUDGE JORDAN: You quoted one of your colleagues with

the line of a problem in search of a solution -- a solution in

search of a problem. What's the -- is that not equally

applicable to the importation of Rule 45 into 30(b)(6) if, in

fact, it's the case that these seldom produced disputes that

have to go to the court?

MR. CULBREATH: Well, I think there are two pieces to

1 1 : 0 5 : 2 2 that, Your Honor. There's -- in the first instance, the

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Rule 45's the topics. If you look at the case law that comes

out of 30(b)(6), there's far more dispute over topics,

numbers, so forth, as opposed to disputes over identity. And

when I say that, there's just not as much, appears to be,

dispute over identity as the other.

JUDGE JORDAN: But they are getting worked out

apparently. Otherwise, we'd be hearing from judges this is a

problem, which we're not.

MR. CULBREATH: Well, in my experience, at least,

again, in the district of South Carolina, some of our judges

have meet-and-confer requirements with the court and they get

worked out. Or you end up with a text order that says this is

how it's worked out, so there's no published decision.

One of our federal judges has got two asbestos cases

now that popped up in our federal system, which is rare in

South Carolina. And he's going to get ten, 12 motions,

protective order motions over 30(b)(6) this year, I'd venture

to guess.

JUDGE JORDAN: So there is a mechanism in place

that's being used to address it?

MR. CULBREATH: There's a mechanism, but there's not

clarity on the process because you can file a protective order

but, again, it goes to does the deposition go forward? Does

it not? What happens to the topics in dispute? Does the

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deferred? You can't certainly instruct the witness not to

answer because there's no privilege to that. And that's

handled all over the board if you look at the cases.

JUDGE BATES: Mr. Culbreath, let me just ask you the

same question that others have been asked to respond to, and

that is whether you have seen a problem frequently with the

wrong witness or an unprepared witness being put forth?

MR. CULBREATH: I've only seen that on a handful of

occasions, Your Honor. And those instances, the party who

failed too put up a witness was sanctioned. I think for my

clients, we have no interest in going to a deposition, having

ill-prepared witness, and then going and having the wrath of

the court because we didn't follow our obligations under the

rule that already exists.

JUDGE BATES: Fine. With no further questions,

Mr. Culbreath, thank you for coming. We appreciate it.

We'll take a short break now. We'll try to limit it

to ten minutes. That means we'll resume -- I'll say we'll

resume at 11:20.

(Recess taken from 11:08 to 11:20.)

JUDGE BATES: We will resume. And our next witness

will be Michael Carey.

MR. CAREY: Thank you. Good morning.

JUDGE BATES: Good morning, Mr. Carey.

1 1 : 2 0 : 1 6 MR. CAREY: Michael Carey from Minneapolis,

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Minnesota. Apologize for bringing my weather with me.

I practice at the defense firm of Bowman and Brooke.

JUDGE BATES: We actually blame Judge Ericksen for

that.

JUDGE ERICKSEN: I was trying to say it was not our

fault, so thanks.

MR. CAREY: Started off on the wrong foot.

I have been practicing for only 11 and a half years.

Compared to most of the speakers this morning I think it's on

the lowest end, which gives me the benefit of having a long

horizon to practice under the new rules. So this isn't as

important to them as it is to me, obviously.

And I say that to emphasize the point that this is

important. We can take our time to make sure we get it right.

And I think the process so far, I've never done this before,

is very interesting, and I don't know exactly how it goes back

and forth over the years before it finally becomes a rule, but

what I'm hearing so far is this notion of the identity

question being something that should this be a requirement and

I'm going to get to that and -- but first I want to share the

perspective of what I've been trained as, as a lawyer and a

litigator, is that you always need to be collegial,

professional, and that's not only it just helps you sleep at

night, but it's good for your client. Avoids costs, it's good

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And it's from that perspective that I think that the

spirit and the intent of including a provision about meeting

and conferring is the right place. And the concern, though,

is that the formulation and implementation of this

meet-and-confer obligation may be flawed.

And the reason I say that is it gives a new

requirement. I don't think that you can read this specific

language of this amendment without reading into it that there

is a requirement, however we're going to assume "identity" is

defined today, that the organization doesn't have to reveal

the name and at least the title of the deponent. And that is

an absolute new requirement that has never been in this rule

before.

And so the question I have is, if you're going to do

that, like, you know, maybe an analogy would be the expert

disclosure rule, and there's a good reason that we need to

know the experts' identities, to know what type of topics

they're going to cover, what areas of expertise, look at past

transcripts. And that's relevant to that determination. 

If we're going to do that for corporate witnesses and

read into and insert a new requirement about identity, I think

it needs to go clear back to the drawing board and say we're

going to do that, and actually insert a notice requirement and

a timing thing, and that's not what this rule does directly.

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obligation.

And I think that's the problem here, is we're going

to be in a situation where it's ambiguous when you look at the

rule what the identification means, and when you get into the

situation where, if you look at the new requirement, it says

promptly, and then continuing when that obligation has to be

met.

It actually even says before you even do the notice

you should meet and confer about who this person's going to

be. In some cases that could be six months, eight months.

Not the seven days we're talking about. 

And so you have this obligation to identify this

person long in advance, change -- and if that person's name

changes, you have to amend and call counsel again and tell

them over and over who the witness or witnesses are going to

be.

JUDGE BATES: Are you advocating that there be

instead of the meet and confer as to the identity of the

witness, instead there be simply a requirement to identify the

witness some days in advance?

MR. CAREY: Absolutely not. And that's what I'm

trying to point out, that this is what the rule I think in

effect will do because of its language, will kind of create

that requirement. It could be read that way by district

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have to evaluate is that a proper purpose for the 30(b)(6)

deposition, and a lot of witnesses today have said, no, that's

absolutely irrelevant to a 30(b)(6), it's not the point, it's

to find out what the company knows, not anything about the

individual. There's case law separating those two notions.

And by slipping it in through the back door of a

meet-and-confer obligation, you're effectively, and very

vaguely, creating this requirement that wasn't in the rule

before and -- and has no place in it.

That's a whole separate discussion whether identity

should now be in the 30(b)(6) question. But -- and if it is

relevant to that determination. It's not. But this amendment

would effectively insert it into it.

And then the last point I want to make, I see I'm

already on yellow, is sort of a practical point which is I

like to think of the Federal Rules of Civil Procedure as sort

of the rules of playing in the sandbox, and we want, as

litigators, want to get to the merits of the case.

And all this does, really, in my mind, is just

creates another rule. And I like to think that the rules

should be simpler, not more complicated. As sort of fresh off

of being an associate, I would always be worried about the

pitfalls and the things I would miss. And if you go through

the federal rules you can find 30 or 40 different requirements

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hurdles you have to jump over, and this is just adding one

more in.

And it's necessarily going to create pitfalls for

litigators who don't practice in federal court that much. In

every single case it's going to add costs that, you know, I

think a lot of people here are strong advocates for defending

corporations when this is being abused, but there's just lots

of cases where corporations sue each other and they want to

use 30(b)(6), and it just doesn't need to happen that you have

this extra additional obligation that really isn't necessary.

I mean, if it ain't broke, don't fix it, according to

the Wyoming Lawyers Association. I think that's the saying

that goes in Minnesota, too.

So that's all I have unless there are any questions.

JUDGE BATES: Any questions for Mr. Carey? 

Thank you very much. We appreciate it.

Our next witness will be Bradley Petersen.

Mr. Petersen.

MR. PETERSEN: Thank you all very much.

My name is Brad Petersen. I'm with the law firm of

Slattery Petersen here in Phoenix, Arizona. I practice both

here locally and nationally in civil litigation. A large part

of my practice is defending product liability cases for

manufacturers.

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but also had the opportunity to notice and take Rule 30(b)(6)

depositions like one of my colleagues before me. I have had

the opportunity to prepare and present CLE presentations, both

locally and nationally through webinars on Rule 30(b)(6).

I've done a lot of research, read a lot of cases.

And through it all, I have seen this develop over the

years. I think there's still a lot of uncertainty in the

practice, particularly for younger lawyers and folks who

haven't spent the time going through all those, and there's

some inconsistencies in the way it is applied throughout the

various jurisdictions. And that can be a problem.

I think the amendments that we've had to Rules 1, 26,

and 37 have had a positive impact on the way we practice law

over the years and securing both the just, speedy, and

inexpensive determination, but also focusing on the merits.

Yet I still spend a significant amount of my time, perhaps the

most significant amount of time in any one case dealing with

Rule 30(b)(6) depositions. Some of these are those outlier

notices with 149 topics, 95 topics. Those things happen.

I have the luxury of doing some pretty high profile,

high stakes litigation, so we're generally dealing with very

good lawyers. But there's -- you know, plaintiff lawyers can

be good for lots of reasons, and sometimes it's because they

want to focus on the merits and win on the merits, and some of

1 1 : 2 9 : 1 7 them do seek to weaponize rules like this, which is why we end

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up with 149 topic notices.

JUDGE JORDAN: Excuse me. You like the meet and

confer when it deals with the topics and notice; correct?

MR. PETERSEN: I advocate for it in every CLE. The

first thing I do when I get one of those notices or an e-mail,

like Mr. Fowler said, is to call up the other side, because

the first thing I want know when I've got all of these

obligations on me to identify, to prepare, and to supplement,

when I have those obligations I want to know what do you want

and how can I get there, but I think those are already baked

into the rules that we have.

JUDGE JORDAN: Have you had the experience with the

30(b)(6) practice that you've had of being asked for the

identity of the witnesses?

MR. PETERSEN: I have.

JUDGE JORDAN: And has that proved problematic?

MR. PETERSEN: In some cases yes, and in some cases

no.

As part of the meet-and-confer process, I think that

is part of what I would call the arrows and the quiver. We

have to meet and confer about a whole host of things, not the

least of which is the number of topics and the scope and

things like that. And if it makes sense in one case with a

particular plaintiff's attorney to provide that information

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things we talk to the clients and have the authority to do.

But that's an option out there for the lawyers to use on a

case-by-case basis.

JUDGE BATES: Those cases in which it's been

problematic, what has been the problem?

MR. PETERSEN: The problem is this, most often and --

and sometimes it even starts before we get the notice or right

after, where we say, hey -- let's say we've got a product

liability case on two defects, one is very well developed, one

of them is brand-new. The very well developed one may have

had 30(b)(6) depositions or state equivalent depositions taken

multiple times, maybe from the same witness or multiple

witnesses, and we say, well, rather than doing this all over

again, how about we give you the transcripts so you can get

the information. 30(b)(6) is about just getting information

to use, for litigating on the merits. Let's give you the

transcripts and maybe you don't have to do the deposition at

all.

Of course, the answer always is, well, let me take a

look at it, I'll read the depositions, and maybe I don't. And

in some cases with some plaintiffs attorneys, that has

resolved it. In other cases, they weaponize that. So -- 

JUDGE BATES: What does that mean, weaponize it?

Give me an example.

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these multiple transcripts for potential inconsistencies, or

where maybe topic wasn't fairly well developed in a notice in

one deposition that is now going to be more developed in this

deposition. And in some cases they will use that to find out,

okay, well, who's the witness going to be, and then get their

individual depositions.

And you've heard about some of the parade of

horribles in mixing 30(b)(1) and 30(b)(6), which does happen.

But inevitably in those cases which I had experience with,

some plaintiffs attorneys won't take us up on the offer. It

turns into a seven-hour argument about what prior transcripts

say, about what this is, about what perceived inconsistencies

are. It isn't an information-gathering process.

By corollary, the new area, the new defect they're

doing, they're taking a witness on, that may end in two hours

or three hours because it's focused solely on getting

information in discovery.

So we see this used in that way versus this way. So

in some cases it can help, in some cases it simply does not.

For me, and you'll see my written comments address

many of the issues I think you've asked here today, but for

me, and what I'm hearing again is "meet and confer" and

"identify" cannot mean the same thing.

"Identify" is used throughout the rules and used in

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when you use meet and confer about the identity it means

something more. It presupposes that by talking about who the

witness is, that there involves some sort of now a dialogue

about that. It doesn't mean merely identify, because that

word is used somewhere else to use very discrete information.

Meeting and conferring about the identity means

something more. And to me, I think no one other than the

organization who is speaking, the person who is speaking,

should have a say-so about who is speaking for them.

MR. SELLERS: May I ask a question, Mr. Petersen? In

your written statement, you list a number of factors you say

you consider in selecting 30(b)(6) witnesses. One is

witness's personal knowledge and experience. Why do you

consider that?

MR. PETERSEN: Well, I think, and I've talked about

this in CLE so I'm not divulging any sort of client

confidences here, but I think one of the things you do is you

think about how much preparation are they going to need, is

this going to be efficient in thinking about their prior

experience or could it get in the way.

We talked about it earlier, about the document from

witness Smith. Well, maybe that document for witness Smith,

who was involved in it, isn't really the corporate story but

one cog. Now is witness Smith going to have to go and explain

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and say, well, yeah, I thought this but my perspective was

really a marketing perspective. It wasn't really a design

perspective. I can talk about design and I understand why the

choice was made but this is the corporate decision and this is

the reason why we did it, these are the things that we

considered, I just did it, but the other side of it. So, you

know, you have to consider it. Sometimes it's good, sometimes

it's bad.

JUDGE ERICKSEN: So is it your experience that fights

before the deposition involve the scope and specificity and

fights during or after involve the preparedness of the witness

in general?

MR. PETERSEN: Because I've done some research and

looked at the sanctions that are out there, I haven't had very

many, if any, experiences as to the preparation of the

witness. And, frankly, because of the due diligence we all

try to do in advance of it, I try to clear those up

immediately, sometimes even during breaks during the

deposition saying, geez, I didn't understand your scope to be

that specific about that nuance. Let me just see if we can

get that information for you today to be able to answer that

question.

So I don't see a lot afterwards. Before, it is

always about the depth, breadth, scope of the topics.

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you had if not the current draft for dealing with ill-prepared

witnesses, but you might not be the person for that, so let me

ask you a different question.

Do you believe that there is any problem that the

iterative nature of the meet and confer makes it amorphous and

difficult to understand, whether you've done it or not, and if

there were not the requirement to discuss the witness

identity, would the meet and confer still be -- have to be

specified as being iterative? I mean, there's no problem that

I can think of having to be iterative unless the problem is

people don't know whether they've complied or not.

MR. PETERSEN: I think there is a problem. Without

guideposts to know what that means, other than what it already

means in the rules, we have it in the rules the same way we

have it to avoid discovery disputes as to any sort of

discovery device, and that is to try and avoid the dispute in

the first place; right?

And so that -- I understand that role. And that may

mean, I suppose, different things to different people. But I

think at the end of the day when we reach a disagreement, we

know we've complied as much as we could.

I think doing this in advance and without clear

guideposts as to what that means, I think it can lead to more

disputes that will occur. I can envision -- and I won't name

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on a daily basis saying, what are we doing today? What's

going on next? What are we doing now? Look, I just need some

time; right?

But I do think that is a problem and I don't think

it's necessary. I think you have a roomful of people

testifying almost uniformly that to some level meeting and

conferring is already happening, and it sounds from the

feedback that you've had from the bench that they're not

seeing the things because of that already. So adding this

amorphous --

JUDGE BATES: This is another if it's not broke,

don't fix it?

MR. PETERSEN: Well, I think there are some things we

can fix, and I've included those in my written report. And I

think there are things we can do to make it a little bit

better. But as to that, meet and confer, I think we're

already doing it. I don't think we need to include that in

30(b)(6) any more than we need to include it in 30(b)(1), or

33, or 34.

JUDGE JORDAN: I have one quick question, if I could.

Do you have any suggestion -- I mean, you've written things

like a 30-day notice requirement, maybe that's apropos -- but

anything specific you could say besides the witness

identification that would meet the problem of unprepared

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MR. PETERSEN: In what I've read about why we end up

with unprepared witnesses was early gamesmanship, trying --

you know, trying to avoid giving the information, and the

sanctions that are out there because of it.

I think for the people in this room at least, and

you're probably dealing with a different set here than

probably lead to most of those sorts of disputes, we don't

really need to worry about that very much. But I think a

requirement that these get served far enough in advance for

people to work them out and not, you know, 14 days before some

discovery deadline, oftentimes the expert discovery deadline,

which is when we receive these types of things. Hey, we need

this now because we've got reports due in two weeks or three

weeks or whatever it is.

If there's enough time baked in, more than what is

the normal notice requirement, I think that could help.

JUDGE BATES: Okay. Thank you very much. We

appreciate it, Mr. Petersen.

We'll hear next from Jennie Lee Anderson.

Good morning, Ms. Anderson. Good to see you again. 

MS. ANDERSON: Good morning. Thank you for having

me. 

My name is Jennie Lee Anderson. I know most of you,

but I practice at the law firm Andrus Anderson in

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individual, and mass actions.

I've been practicing in that capacity for almost 20

years, and over the course of that time I've taken multiple

30(b)(6) depositions in the context of antitrust cases,

consumer fraud cases, securities cases, employment cases, and

product liability cases.

One of the issues that has come up a lot today is the

issue of the value of knowing the identity of a witness.

I always request the identity of the witness in

advance and I have never been denied that information. I've

always had the identity of the 30(b)(6) witness prior to

taking the deposition.

The reason why that's important is because there are

basically two different types of 30(b)(6) witnesses. The

first is one that the corporation has chosen because that

person is the person they believe to be most knowledgeable and

they want somebody who's knowledgeable and knows what they're

talking about to represent the company and testify on behalf

of the company. Sometimes that's not always possible and

sometimes 30(b)(6) ends and deponents have to go out and

gather information and prepare themselves in advance.

The first scenario is much, much more common for the

reasons I stated. There's less preparation that needs to be

done, the person is simply more knowledgeable about the topics

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accurate information.

JUDGE JORDAN: How would your knowing the identity

make a difference to that?

MS. ANDERSON: Because if I know the identify of --

say I've a 30(b)(6) deposition about research and development,

and I am told that the person being designated is the head of

research and development and has been for the last 12 years, I

know that that witness is being designated to testify, but he

or she is going to be testifying based on their own documents,

their own knowledge base, and their own experience at the

company.

So, therefore, it is going to assist me vastly to

review their custodial file and understand their background

and their job at the company prior to the deposition. And it

also assists a great deal in finding out exactly what topics

they're going to be discussing from their more personal inate

knowledge and -- although they're being designated to do so on

behalf of the company --

JUDGE JORDAN: Right. That gets into the question

that you've heard discussed, I assume, about the line between

regular depositions and 30(b)(6) and that that is a line that

shouldn't be crossed and creates more difficulties in

deposition than it is. What is your experience with that?

MS. ANDERSON: I disagree with that because, as I

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research and development example. That deponent is testifying

on his or her personal knowledge and experience. Because

their personal knowledge and experience makes them the most

knowledgeable, the corporation has chosen to designate that

testimony to be on behalf of the corporation.

If I -- I should be able to cross-examine and ask

that witness about the testimony that is being proffered on

behalf of the corporation even though it is also coextensive

with his own personal knowledge. And I think that's different

than trying to ask a 30(b)(6) witness about something

unrelated to the topics at hand.

And I think it's very helpful and I think that it is

the common practice to -- you know, even if the witness was

not going to be head of R&D, I would still want to look at the

custodial file of the head of R&D. The fact the witness is

the head of R&D is going to be more efficient and more

effective and yield more information across the board.

I think that most corporations prefer to identify a

knowledgeable witness who will speak with knowledge and

represent the company and have the background information and

history before speaking on behalf of the company where

possible.

JUDGE BATES: As to the identity of the witness, what

is the additional advantage from a requirement to meet and

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MS. ANDERSON: Well, as I mentioned, I always request

the identity of the witness in advance and I've never been

denied that opportunity by defense counsel in my experience.

I think that -- I disagree with my esteemed

colleagues who are here who think that it adds a requirement.

I don't read it as a requirement, and several people have said

they have plaintiffs attorneys who don't choose to ask for the

identity. I don't -- I can't speculate on their decision to

do so. Maybe it's a discrete issue.

JUDGE JORDAN: It would have to be a new requirement;

right? If it's not in the rule now, they don't have to give

it. But if we put it in the rule and they do have to give it,

then it's a new requirement. Right? That's -- just is a

problem they're identifying. They're saying you're making us

do something which has been discretionary with us before in

deciding how to deal with counsel we trust versus counsel we

may not have any experience with and do not trust as much.

So how do you address the concern they're expressing,

which is there are lawyers out there who will use that

information to an inappropriate end, they will use it in a way

that leads to cross-examination questions that have nothing to

do with corporate knowledge of the company?

MS. ANDERSON: Well, I personally don't see any

downside in my practice of knowing the identity of the witness

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I think that there are already in the rules

procedures and remedies for abuse of discovery procedures. I

don't think that it's -- I haven't heard any -- most of the

people -- sorry to be inarticulate. Most of the people who

have testified today have indicated that this doesn't present

a lot of problems. There have been one or two examples of a

rogue situation, but overall, anyone who's taken a deposition,

I think, would say knowing who the person you're going to be

deposing for the next seven hours in advance is helpful. It's

helpful in preparation. It's helpful to know the person's

background. It's helpful not to be surprised. It can result

in shortening the length of the deposition insofar as learning

what that person already knows versus what they had to do to

prepare for the -- to be the voice of the company for those

seven hours in the deposition chair.

So I think that there are other procedures that

already exist for that and any other discovery abusives --

abuses.

JUDGE BATES: Would the meet-and-confer requirement

in the rule or an identification requirement in the rule, in

your view, lead to more disputes, more litigation, or less?

Or have no effect?

MS. ANDERSON: I think it would -- I don't know that

it would -- I would say no effect or less. I already meet and

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have a 30(b)(6) topic that is very discrete and it's not

necessary, but usually I want to talk to opposing counsel

about, well, what -- what am I trying to get to with these

topics? Do they think that they have a witness who can cover

them all? Do they feel like -- sometimes they say, look,

Jennie, we've got the R&D guy, he's going to try to cover

sales too. I'm going to say, are you sure you can get him

prepped enough? We've got a lot. This is big case that

covers ten years of information. Are you sure you can get him

prepped? And opposing counsel might say, we're going to try,

and if the questions aren't answered we'll work on getting

someone else. But that is part of this process.

So I already do that in my practice. And I think

having and encouraging more open dialogue about the identity,

the -- who's going to be testifying about what, and the topics

themselves just make the process flow a lot better.

Frequently, there will be outstanding issues that we

don't know whether we're going to resolve, but we can still

move forward with what we agree upon with that R&D depo, for

example. And if there are other topics that weren't covered

and opposing counsel feels it's unreasonable, we can talk

about that afterwards.

But this process, I think, is important and that's

why I think that there's no downside in encouraging people to

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JUDGE CAMPBELL: You explained why knowing the

identity of the witness is helpful in the first category of

30(b)(6).

Does it help to know the identity in the second

category where the person had to go collect the information

and is testifying solely on the basis of their due diligence

and collecting the information?

MS. ANDERSON: I think it's still helpful. I think

it's not as important, but I still think it's helpful to know

the identity of any witness.

Is that person an employee at the corporation? Is he

somebody who's hired to come in as a 30(b)(6) deponent?

That's information that I would like to know in advance.

Many times a 30(b)(6) witness will be testifying on

behalf of the company based on his or her own experience in

one area, but not in another. So I can know that he's going

to have personal experience about maybe HR and I can ask more

questions at the deposition what did he do to learn about the

sales division: Who did he talk to, and how did he gather

that information.

So I still think it provides a lot of efficiencies

and is very helpful, although it may not be as core as when

the person who's going to be covering all the topics is also

the person most knowledgeable.

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Thank you very much for coming. We appreciate it.

MS. ANDERSON: Thank you very much.

JUDGE BATES: Our next witness is Bina Ghanaat. 

Morning.

MS. GHANAAT: Good morning. You pronounced my name

perfectly. That's rare. I appreciate that.

JUDGE BATES: Blind luck.

MS. GHANAAT: Thank you for opportunity to be here.

My name is Bina Ghanaat and I am an attorney with the

law firm of Lankford Crawford Moreno & Ostertag based in

Walnut Creek, California.

A little bit of background about my firm. We

primarily represent corporate defendants in product liability

and other tort actions, and part of that representation

includes serving as national counsel and asbestos counsel for

various corporations, numerous jurisdictions, both federal and

state.

Now, my perspective is slightly different from the

others who have testified before me given the unique nature of

asbestos litigation. Specifically, in asbestos litigation,

we're dealing with claims that happened 30, 40, 50-plus years

ago. So the fact of the matter is the corporation does not

currently have someone with it who has personal knowledge

going back that far, and that's what informs the opinions I'll

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Rule 30(b)(6).

I'm going to break down my thoughts into two

categories. First, the proposed amendment to meet and confer

regarding the identity of the corporate witness is an

attempted solution at a problem that doesn't exist, as others

before me have said; and, secondly, I think there are certain

common sense solutions and amendments that could be introduced

to streamline the 30(b)(6) process and fix what are the

problems that we see coming up.

JUDGE BATES: Is it a problem that doesn't exist

because, as some witnesses have said, they routinely ask and

receive the identity of the witness, or is it a problem that

doesn't exist because they shouldn't be entitled to the

identity of the witness?

MS. GHANAAT: Well, a little bit of both. First, the

identity of the witness is not relevant because, as others

before me have stated, in the context of a 30(b)(6) deposition

we're dealing with a corporation's knowledge, not the identity

of the witness. And there is case law going to that. I'm not

going to list all the cases, but footnote 11 of the LCJ

comment, for instance, lists all those cases, saying the

identity of the corporate witness is not even relevant.

And it's also not an issue because of the safeguards

that are already in place. I -- for instance, if a

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they're subject to severe sanctions, and what they're going to

have to do is they're going to have to spend the time and

money and effort and prepare someone properly and put that 

person up and have another deposition.

JUDGE JORDAN: The argument I assume I'll be hearing

from the other side is to the effect there's a transaction

cost there; right? That defense lawyers will sometimes play

the game where we don't have a fully prepared witness, but

they weren't so bad that you'll burn your credibility going to

the court. That's the way the fight seems to go.

So what, if any, practical advice do you have for how

to address the problem of unprepared witnesses? If it's not

meeting and conferring about witnesses and discussing it, what

do you suggest be done? Because it apparently is a problem.

MS. GHANAAT: Two suggestions. One would be to put

in a framework into the current rule to encourage early

discussion about the topics at issue.

If the other side tells me early on, such as in the

context of the Rule 26 conference, what specific topics

they're looking for that are relevant and specific to the case

at issue, that will help me go to my client earlier and try to

figure out, in conjunction with my client, who is the best

person to speak for the company, be the face of the company,

provide binding answers for the company. Who has the ability,

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personal knowledge, to go through thousands of documents, to

go through decades, 50-plus years, of corporate history. Who

has the right ability to actually absorb this information,

distill it in their mind, and then take that information and

present it in a clear and accurate manner in a way that is

understandable to a jury.

JUDGE ERICKSEN: The draft comment does make

reference to the fact that in some cases it might be

appropriate to discuss this at that early stage. What we've

heard so far is that that is true in some cases but not in

others, and that's why there's not a timing requirement in

there.

But does the -- in the Rule 26 stage, there's nothing

to preclude that as being a topic of discussion. And then

closer to the 30(b)(6), you can have a meet and confer about

the topics more specifically. That's what's in the draft

already.

MS. GHANAAT: Right. But the earlier, the better, of

course, to encourage parties not to kind of wait to the last

minute to narrow down topics.

Often in meet and confers, I have those so-called

outlier cases. In most of the litigation we do, we see those

deposition notices with 75-plus topics. We engage in meet and

confer and, unfortunately, sometimes parties just get more

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forth. So the earlier we can begin that process, even if it

means a mandate to say specifically when to start that

discussion, the better it is. And that goes to the issue of

making sure we have the most able and prepared person on the

discrete topics at the time of 30(b)(6) deposition.

PROF. MARCUS: Can I ask a question about asbestos

litigation in particular, because my guess is as to some of

your clients there have been prior 30(b)(6) depositions in

fairly similar litigation. Do the transcripts of those prior

depositions play any role in your current cases?

MS. GHANAAT: Yes, they do. And that's a great

question. In fact, depending on the client and the case at

issue, if we receive a notice with certain topics, the exact

same topics we've seen over and over again, what we'll do,

with the client's permission, is we'll actually offer to the

other side, you have already deposed our corporate

representative on topics A, B, and C. Do you really want to

depose him again on A, B, and C? Or we can offer you these

prior transcripts on these topics, and we'll stipulate that

those transcripts can be treated as if taken in the current

case.

So they certainly do play a role.

JUDGE BATES: Why isn't it helpful for the other side

to know in advance who the witness is for just that same

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MS. GHANAAT: They don't need to know who the witness

is for that purpose for two reasons: One, in my type of

litigation, you're not dealing with someone with personal

knowledge. You're dealing with someone who has been educated

and who learned about the topics at issue. So it is really

irrelevant who the person is. And for that reason, they don't

need to know the identity of the person. I don't see how that

rolls the ball forward or how it helps.

JUDGE JORDAN: Well, they would know, if they knew

the identity, that, in fact, this person had been deposed

several times before, so they would be in a position to say to

you, even if you didn't say it them, why can't we use those

previous deposition transcripts.

MS. GHANAAT: Well, I submit that it doesn't matter

if Mr. X or Mr. Y or Mrs. X or Mrs. Y was the one who was a

prior 30(b)(6) notice and there are transcripts of their

depositions, because, again, we're not going on personal

knowledge, we're going on the company's knowledge.

And my duty is to prepare whoever I'm going to put in

that chair to be able to testify fully, completely,

truthfully, and accurately to whatever the topics may be.

So as long as the topics are the same and I've

already put up a witness, it doesn't matter who that witness

is as long as they can present the company position.

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Thank you very much for coming. We appreciate your

testimony.

MS. GHANAAT: Thank you. 

JUDGE BATES: Our next witness will be Tim Pratt.

Mr. Pratt, good to see you again.

MR. PRATT: Yes. Good morning. Good morning.

I just want to start by thanking the committee and

thanking everybody here. I think of the 1.4 million lawyers

and judges in a country where only a few spend time working on

these kinds of things, making the civil justice system work

better and fairer and even -- everybody who participates, I

commend them for it.

I wear different hats today. I spent 30 years

practicing law, trying cases around the country, seeing a lot

of the 30(b)(6) issues that some of the defense counsel have

mentioned to you.

I'm president of Lawyers for Civil Justice, although

I'm not here in that institutional capacity because I'm really

here to talk about what I've done in the last ten years. It's

a perspective not shared before.

I'm general counsel of a company called

Boston Scientific. I was the client. I had to deal

internally with 30(b)(6) notices that we got. I don't want to

talk to you about some of the logistical --

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the question of notifying the other side what specific witness

you would be sending to be a 30(b)(6) deposition?

MR. PRATT: How would I deal with that as the client?

PROF. MARCUS: Yes.

MR. PRATT: I mean, first of all, I think this is a

nonissue, Professor. I know we spent an enormous amount of

time this morning talking about that very issue. I think the

plaintiffs lawyers have said it's really not an issue. It was

never an issue when I was in the practice of law. I frankly

don't know whether the 30(b)(6) depositions of the company

that I led as general counsel, I don't know that we told

people that. I'm saying this rule doesn't address the problem

that we have.

PROF. MARCUS: In your experience, it's not really

the client's call, but the defense lawyer's call?

MR. PRATT: I don't know. I mean, I guess it's the

client's call. But have I ever as a client been asked do we

disclose it or not? Never. If somebody asks me I would

probably say, I did it when I was in private practice. I

would say I don't think it's actually part of the rule, is my

position.

JUDGE BATES: From your perspective, is there any

problem with disclosing the identity of the witness in advance

of the deposition? Does that create some problems from the

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justice system?

MR. PRATT: Well, I don't know. I mean, again, my

point is this isn't fixing the problem that we have,

Judge Bates. I'm telling you that. There's -- the problem I

see -- and I'll answer the question -- the problem I see is,

and we seem to shrug our shoulders at these comments that

there are 125 topics in a 30(b)(6) deposition notice, or 70 or

80. I think that's outrageous.

In the pelvic mesh litigation, which I led, was

against my company, from 2013 and 2016, there were 36

depositions of my Boston Scientific people. 49 days, 12,000

pages of deposition testimony.

JUDGE BATES: 30(b)(6) depositions?

MR. PRATT: No, no, no. Individual depositions.

After all -- including four days of 30(b)(6) deposition

notices from the state court case, depositions in state court.

With noticed 30(b)(6) depositions in the MDL.

After that, we got a 30(b)(6) notice that contained

18 parts and 50 subparts. After all of that.

I just think that is outrageous. I think it's

harassing when after all of that you have to deal with that

number of topics so they -- we want witnesses to talk about

things we had them talk about before.

And what happened, we went to court. We went to

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magistrate judge gave us some relief, but the outcome of that

was one of our witnesses who testified for four full days

before that had to sit through two additional days of 30(b)(6)

depositions to talk about some of the things she talked about

and documents she was presented and all of the other

testimony.

So if a 30(b)(6) witness is going to be presented to

the other side, it's a good thing. I leave it to the

plaintiffs counsel to answer that. 

But I'm saying I think this rule, Judge -- this thing

got started with the ABA task force and Lawyers for Civil

Justice joined, the problems we're seeing on the defense side

of 30(b)(6), and this rule doesn't fix the problem. It

institutionalizes something that's been a part of the practice

for a long time. You get a 30(b)(6) notice, you meet and

confer. But you meet and confer in the context of no

guidelines. And this rule does not provide the guidelines to

drive the meet and confer to getting improved discussion. So

that's my primary problem with it.

JUDGE BATES: Does that mean that what you are

primarily suggesting is that there be a numerical limit to the

number of topics? 

MR. PRATT: Yeah. Yeah. Here's my view --

JUDGE BATES: And would that not, just as an example,

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saying there could be ten topics, wouldn't that lead simply to

ten more generally stated topics that would still cover the

same territory for the company?

MR. PRATT: I don't think so. First of all, the rule

also requires reasonable particularity, so you can't come in

and say -- I mean, of the -- of the -- of the topics that we

got, the pelvic mesh litigation, they said they wanted to have

somebody discuss all aspects of physician training, all

aspects of sales rep training. I don't know how much broader

you can get from that.

I mean, so my view on this is that the biggest

problem you have if you're the client is dealing with that.

If you get 50, 60, 85 topics, 30(b)(6), you don't even know

where to start. And you know there's going to be discussions

to try to limit that. Once you get it limited, you have to go

find the witness. This isn't -- this is the season of Elf on

a Shelf. We don't have a witness on a shelf. We have people

who have day jobs, and they've got to be in a position to say

I'm willing to participate with lawyers and do this and speak

on behalf of the corporation. That's extraordinarily

difficult and emotionally draining for people.

JUDGE JORDAN: But that's true for any 30(b)(6), even

if there were one topic; right? I mean, it's an imposition,

but that's a piece of the system. And I don't take you to be

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So getting to the point of they can be harassing and

over the top, what is -- what is wrong with the system as it

exists, which you took advantage of and went to get a

protective order. Go to the court and say this is an over the

top kind of demand on this 30(b)(6) deposition notice we've

got, and give us relief.

MR. PRATT: You've got judges who say, I have no idea

what's reasonable in terms of numbers. Is 70 reasonable? 50?

The rules don't say that. So judges look at it and go, it

makes sense. In this case there was no limitation on the

number of topics.

JUDGE JORDAN: How could that be done in the

abstract, though, Mr. Pratt? How could we say for all cases

ten is the presumptive right number?

JUDGE BATES: Isn't an individual employment

discrimination case much different than a pelvic mesh case in

terms of the number of topics that might be appropriate?

MR. PRATT: Maybe, maybe not. But you also have a

presumptive limit of 25 interrogatories you somehow work

around that, I suggest, has prevented motion practice.

You have a presumptive limit of ten witnesses in a

case. No matter the case. And I'm sure there was outrage

then about, wait a minute, all cases are different.

And I'm not saying if ten's a presumptive limit that

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think what it will do, it will tether the process.

I want to talk about just emphasizing if the

presumptive limit is ten, then you have some tether to what is

reasonable. It doesn't mean it's always going to be ten. If

you have an opportunity to object, you have the court who can

get involved. And I think the prospect of the court getting

involved on these kind of things incentivizes reasonableness.

And I think the prospect of avoiding duplication -- I

think these are things that we propose as to problems. I

think identifying the witness in advance doesn't seem to a

huge problem. I hear about the problem of unprepared

witnesses. I don't even know what that means. I have never

had that, I've never seen that in my practice.

But I will tell what you contributes to it, if it

exists. If you have to present five witnesses on 50 topics,

you're probably going to have somebody on the plaintiff side

say this person wasn't prepared to deal with this question

when I asked him or her the question.

So I think part of the unprepared witness situation,

which I don't fully understand, is more based on the idea that

the process is being abused and there are too many topics, and

trying to prepare a witness, manufacture a witness,

manufacture a witness, take someone who may not know it all

and kind of invent them into this person who can be the person

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an inherent risk that it's not going to match up perfectly

with what the plaintiff's lawyer is going to want.

And I think if you limit the topics, put some more

control over this process, I think you can eliminate a lot of

the problems that the ABA talked about in the task force

report and what else they may have talked about in their

submission.

JUDGE BATES: Any questions, other questions?

Mr. Pratt, thank you very much.

MR. PRATT: Thank you. I Appreciate it. 

JUDGE BATES: Next witness is Keith McDaniel.

MR. McDANIEL: Good morning. I'm Keith McDaniel from

the McCranie Sistrunk firm in New Orleans.

JUDGE BATES: You are the first witness who should

say good afternoon.

MR. McDANIEL: Apologies. Good afternoon. Greetings

from New Orleans.

I'd like to start by thanking the committee. You

have a task before you, and it's one I'm sure that is not that

welcome, but I commend you for that.

More importantly, I commend you for the work that has

been done by you and others on the committees with respect to

Rule 16, 26, and the proportionality considerations that have

been worked in the discovery process.

1 2 : 0 9 : 4 6 For 30 years I have litigated largely on the defense

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side in the areas of product liability and toxic tort. I have

defended at this stage more 30(b)(6) depositions than I care

to think about, although I've taken a number myself as well.

I think when the amendment was first talked about

with respect to 30(b)(6), the thought was that ultimately we

would see what I think everyone here agrees with has been an

outstanding outcome with respect to 16, 26 to the discovery

process the same sort of clarity brought to what is a very, at

least in my view, contentious area, and I would submit to you

that the amendment as proposed will not do that, and I would

urge you not to pass it.

Anecdotally to the question of identity of witnesses,

early in my practice I was defending a corporate deposition

for a Japanese manufacturer. Plaintiff's counsel came to me

and said, can you tell me ahead of time who's going to be

testifying, we don't know anything about this manufacturer. I

did, because I thought it was the right thing to do. We had

three witnesses coming from Japan. None could speak English

so there was an interpreter involved. We spent four days of

depositions going through their social media, where they had

worked in the past, and all of these things and, quite

frankly, hardly touched on any areas of the notice.

So anecdotally, I can tell you that the identity of

witnesses can lead to muddying of the water in the sense of

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versus the corporate deposition.

The identity of the witness is given in the rule.

It's the corporation. The person that is speaking, is

speaking for the corporation.

Now, I will tell you to the other questions,

certainly I have been asked for the identity of the witness,

and as the meet and confer which I do progresses, I can't

think of a deposition that I have defended that before the

deposition I have not said it's going to be Joe Blow. But

that is not something I could have said through a mandated

meet and confer when I'm also talking about the areas of the

deposition to be covered. There's just simply not that time.

JUDGE JORDAN: I'm sorry, I'm not understanding.

You're saying that you do give -- you do regularly identify

the witness when asked --

MR. McDANIEL: I do as a matter of practice so that

when someone comes into the deposition they know the person.

But that may be two days before the deposition.

JUDGE JORDAN: Okay. So you said but that would

create a problem with the meet and confer about the topics?

Did I hear that right?

MR. McDANIEL: At the time the meet and confer is

happening, typically we have a draft notice. In my practice I

can't think of one that does not have at least 30 items. I

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addressing those. I'm just seeing those.

Now, as that process develops, that gels and you

begin to get it. But just as counsel from Jackson,

Mississippi noted, there have been times where that person has

changed for whatever reason, business related, personal,

whatever. And if the meet and confer and identity requirement

suggests something that is now concrete, it is, in my view,

creating something that is only going to cause problems in the

rule. And there are other areas where this rule needs clarity

that would be much more useful than interjecting this.

JUDGE JORDAN: What you're doing is not creating a

problem. The way you're handling it now with some

identification maybe as late as a couple days in advance, that

hasn't created a difficulty in your -- or it hasn't muddied

the waters in the deposition?

MR. McDANIEL: In my view, still more time is spent

on personal information with respect to the witness that has

been dug out of today's information world, that that is

unnecessary, again, in the context of what a person is

there -- and the problem is so much time often is used for

some of that. You then run into the issue of, well, in our

seven hours we didn't cover this. Well, if you had not --

JUDGE ERICKSEN: Have you ever had the experience of

opposing counsel refusing to engage in a meet and confer

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MR. McDANIEL: I will say that I always try to get as

part of the 26 this discussion going, and I can say to you

without fail, I have never had a plaintiff's counsel at the

time of 26 be willing to talk about whether he's even going to

have one, much less the topics. The time --

JUDGE ERICKSEN: Do you think that a rule -- I know

you don't believe that it goes far enough. But that -- but

inserting a meet-and-confer requirement, do you think that

that would nudge people to be more willing to talk about it

because they know the rule is going to require the discussion

at some point?

MR. McDANIEL: I like the concept, again, of clarity

with the rule. I think a meet and confer with a certain time

limit would also control the late notices we get, because

invariably you will get the corporate notice of deposition

after written discovery is done, oftentime after personal

depositions have been taken of corporate witnesses, right on

the eve of when plaintiff's expert report is due, and it's

usually, oh, our experts need this.

JUDGE BATES: What do you mean by the time? When the

30(b)(6) takes place? 

MR. McDANIEL: The meet and confer with respect to

the 30(b)(6). I'm talking about clarity with respect to a

process relative to -- if that process is out early enough, I

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and then you get 15 days before the end of discovery we're

going to have this, then I think at that point I'm in a

position to say, hey, we had this deadline ages ago to do

this, either you weren't prepared or didn't want to do it.

I've got something then. Just a generalized meet and confer

that is not specific in time, in the same way that perhaps

limiting the topics. 

There needs to be more clarity into the process to

include objections if you can't solve things in the meet and

confer.

PROF. MARCUS: Have you ever asked a judge under

Rule 16(b) to set a time limit for 30(b)(6) depositions?

MR. McDANIEL: I've had the conversations with the

judges in Mississippi and Louisiana, and most, at least at

that conference, say let's get the discovery going and see

where it goes. So, no, I have not gone back and said let's

set a time.

JUDGE BATES: Sounds like you don't have that much of

a problem with meet and confer as to the topics, and in your

own practice, you do tend to divulge the identity of the

witness, at least a couple of days before the deposition. But

you do have some problems with meet and confer, timing and

other considerations, with respect to the identity of the

witness.

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things addressed in the rule. Could you just list the two or

three most important things that you think are necessary in a

modification of 30(b)(6)?

MR. McDANIEL: Time frame for the notice. Time frame

with respect to a meet and confer --

JUDGE BATES: For the notice? What do you mean the

time frame for the notice?

MR. McDANIEL: Emphasis of the notice of the

30(b)(6). Relative to either a discovery cutoff or something

so that we know that you --

JUDGE BATES: So the rule should dictate when a

30(b)(6) can take place?

MR. McDANIEL: Yes.

JUDGE JORDAN: You mean like 30 days in advance of

the deposition, you should get the topics?

MR. McDANIEL: Yes. Yes. And then you have a period

of time, just like in 45, to meet and confer and work it out,

and if you don't, ten days to file an objection. So that when

you go into the deposition, there is a ruling. Because, as

the cases as you've seen showed, it's all over the place with

respect to what benefit a motion for a protective order. 

In my practice, more times than not they're filed and

I don't have a ruling by the time of the deposition, so we go

forward with it, sort of not knowing what the outcome is going

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And to your question, Judge Bates, earlier about

witnesses being prepared to testify, in all of my years of

practice, I have never had that raised. And at least for the

defendants that I represent, the last thing we want, from an

expense and any other number of reasons, is to have a witness

not prepared to testify. So it's interesting to me that I

hear you suggesting that that is a common occurrence. I just

have not seen that in my practice. And I don't think

identifying the witness any earlier is going to change the

preparation.

JUDGE BATES: All right. Thank you very much,

Mr. McDaniel. We appreciate your testimony today.

We'll next hear from Philip Willman. 

MR. WILLMAN: Let me be the second person to wish you

good afternoon.

Thank you for allowing DRI to participate in this

process. I'm here not in my individual capacity, but in my

capacity as president-elect of DRI.

DRI is a voluntary membership organization of lawyers

who defend individuals and organizations in civil lawsuits.

We have 20,000 members. It's a large, sprawling membership.

Many of our members devote either substantially or exclusively

their practice to federal court. Others are in state court.

But both categories are going to be impacted or affected by

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Rather than get into reasons why DRI has taken the

position that it has, I would like to describe the process.

But the position that DRI is taking is that the meet and

confer is a laudable goal with respect to discussing the

topics, the number of topics, but DRI does oppose the identity

provision in the proposed rules.

In addition to that, we have put together a list of

improvements that we think should be considered by this

committee.

So how do we get there? DRI has a number of parts to

it. One part is called the Center for Law and Public Policy.

And that center, we rely on volunteers to help provide us with

improvements to the civil justice system. And there's a rules

committee that is in that center that is specific to rules.

The other source of information, we have committees

that are in substantive law areas, such as medical device,

such as medical liability.

Now, to get to these requirements, we asked the

leaders of those different groups to get information from your

members of your committees as to how they perceive this rule

change and what problems they've had with this.

We're not a pure democracy. We can't get information

from all 20,000 members, but we rely on those two sources of

information to come up with our position.

1 2 : 2 1 : 4 8 And so that is how we got to the list of suggested

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improvements that's in our -- in our presentation. And that's

how we got to the position that the identity provision is

something that our membership is opposed to.

JUDGE BATES: So from that process what is the

disadvantage of requiring meet and confer with respect to the

witness identification so long as the rule or the committee

note is really clear on the fact that the choice of witness

remains with the organization?

MR. WILLMAN: I think that the comments that we've

received is it's not all that clear. The language is

ultimately it's the responsibility of the responding party to

designate it, but what does that mean? How does that work

that the responding party --

JUDGE BATES: Well, if it were made clear through the

committee note or otherwise, then what would be the problem?

MR. WILLMAN: The other information -- you've heard

some anecdotes. For example, we've heard lawyers say, well,

we will identify somebody, and then two days before the

deposition we have to substitute that person for someone else

for various reasons. And that puts them in conflict with

that. And so there are problems that they've brought up to

us, our members, with respect to identification.

And you've heard also why. What's the reason for it. 

The other -- this is truly a representative

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providing that representation?

So you asked earlier, Judge Bates, I think, what are

the two or three recommendations that the defense bar -- the

defense lawyer would like to see. I would like to list out of

our suggestions, one is a clarification of notice, notice

requirements. Two would be a process by --

PROF. MARCUS: By that you mean time?

MR. WILLMAN: Time, yes.

The second would be a process by which objections can

be put to the court and resolved if there is not an agreement.

And the third would be to include 30(b)(6) party

conferences in the pretrial conferences and scheduling orders

as other discovery matters are enfolded into that.

JUDGE BATES: The second of those topics, aren't your

members able to bring objections, issues, disputes to the

court now through protective order motions or otherwise?

MR. WILLMAN: Well, some courts don't allow -- will

say, we don't won't protective orders before the deposition.

Go ahead and take the deposition and then afterwards we'll

deal with any problems there.

So there's a lack of consistency.

PROF. MARCUS: In those courts you expect that it

will be welcome to have an objection process that requires

going to court before the deposition?

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question.

PROF. MARCUS: I thought that's what your objection

process would lead to.

MR. WILLMAN: Right. Would be before. But what I'm

saying is there are courts that won't even take up objections

until after the deposition has been completed.

PROF. MARCUS: So we're supposed to tell them they

have to change?

MR. WILLMAN: If there was an objection process

before the deposition takes place, then all of that can be

ironed out before --

JUDGE BATES: Put another way, wouldn't the objection

process that you're looking for inevitably lead to more

litigation about 30(b)(6) issues?

MR. WILLMAN: Not necessarily. Again, you did your

due diligence in asking the magistrates, do you have problems

in this area. We did the same thing, and this is something

that our membership said is clearly a problem they've

experienced. The lack of consistency in the way in which to

deal with disputes about what is going to happen at the

deposition.

JUDGE ERICKSEN: It's hard to believe that it

wouldn't increase the number of cases that are brought to the

magistrate judges in advance, though, because what we've heard

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reluctance to bring these objections to the court because

there's no procedure and courts don't like it, it's fact

specific, and all the rest.

So you put in a rule that compels courts to accept

these motions and makes it a more -- puts grease in the

process. It's really hard to imagine it's not going to

greatly increase the number of disputes in court about it.

MR. WILLMAN: Then why have the process of objections

with the other discovery tools --

JUDGE BATES: Well, it only exists for Rule 45. It

doesn't exist for other depositions.

MR. WILLMAN: That's true. But why have Rule 45,

then? I mean, there's a reason for it. One of the wonderful

things I --

JUDGE JORDAN: One of the reasons is because it's

usually third parties. So that's the difference. It's not

a -- it's a difference with no distinction. It's a real

difference.

MR. WILLMAN: I understand.

But one of the beauties of the federal rules is

providing uniformity, and I think that's what the defense bar

is asking for, uniformity in the way in which objections are

taken care of.

Again, when you have jurisdictions that deal with it

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JUDGE BATES: Any other questions for Mr. Willman?

Thank you very much.

MR. WILLMAN: Thank you for your time.

JUDGE BATES: We appreciate it.

Next witness will be A.J. de Bartolomeo.

That look was I took a passing shot at the correct

pronunciation.

MS. de BARTOLOMEO: Yes, Your Honor, and that's fine.

Thank you very much for the passing shot. When you have a

name that looks likes mine, any attempt is really appreciated.

But, yeah, my name is A.J. de Bartolomeo. I'm a

partner at Milberg Tadler Phillips & Grossman, and this is my

first time testifying, and I'd like to say thank you very

much. It is really a privilege and an honor to see this

process unfolding right before your eyes and to be here.

Milberg Tadler is a national law firm and we

represent primarily plaintiffs, and I practice in the area of

class actions and mass torts.

And first of all I'd like to thank the committee. I

know the hard work that goes into to do what you all do, and

it really is -- has a great result. And I think the number of

people that want to come to testify to be heard before you

speaks volumes there.

I support the amendments as presented for a number of

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balanced rule. And I think it promotes early cooperation

among the both sides of the -- I think it promotes early

discussion about the topics and how the witness is going to be

presented to present competent testimony on behalf of the

corporation early on.

JUDGE JORDAN: Can I ask you a question about that --

MS. de BARTOLOMEO: Yes, Your Honor.

JUDGE JORDAN: -- based on your letter. Why should

the plaintiff's representative have a say in whether or not

the corporate representative is, quote, competent to speak.

I think the way you framed it raises a question. Is

it really the obligation of the corporation to let you have

input into who you think is competent to speak if it's to be

their representative? I think that's how they would ask the

question if they were sitting here.

MS. de BARTOLOMEO: If my note or my submission gave

you that impression, then that was inartful drafting on my

part. I believe the corporation has absolute designation

power. I think the meet-and-confer process, as many others

have testified earlier today, when you talk about the witness,

who the witness is, whether the witness is speaking as based

on personal knowledge or first-hand knowledge or educated

knowledge, I think that meet-and-confer process helps enable

us to know whether the witness is going to be speaking

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specific or surgical about. To make sure both sides -- you

understand what I'm asking for so that you can give me a

witness that can speak competently about it.

I don't think I'm trying to interject my side into

their work product and their discussions with their clients.

That's their business. 

But what I found in my practice is, unfortunately,

once we get to the actual 30(b)(6) deposition, I have a

witness who is not properly prepared, who is not competent to

speak to the topics that we have been through and made very

clear.

And I'd like --

JUDGE JORDAN: Does knowing the witness's name in

advance affect that? I mean, if you knew it, would that --

how does knowing the witness's name in advance make it more or

less likely that the witness who is produced will have been

properly prepared?

MS. de BARTOLOMEO: I think to the extent that other

people have testified earlier, and you asked the question

earlier today about knowing the identity as to an individual

deposition, 30(b)(1) versus 30(b)(6).

Quite frankly, in all candor, the only reason I want

to know the name of the witness is because it may be somebody

I am going to be deposing individually or -- and then I --

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am putting forward a witness that is also going to be on their

list for individual, I want to be a part of that

meet-and-confer process to talk about, okay, should we go

through the individual knowledge first and then we'll go

through the topics? Or how is the most efficient way to

handle this? 

Because I don't want to bring my witness back and

forth and I don't want him or her to get the same question

over and over again, but I also want the information to be on

the record when he's an -- he or she is an individual or he or

she is a 30(b)(6).

And as Ms. Anderson testified earlier, and it often

does happen that there is somewhat of an overlap. Maybe not

for every topic, but your witness will be speaking as to their

personal knowledge because they are the senior VP of research

and development, but they also have personal knowledge and

first-hand knowledge based on the people they supervise, based

on their knowledge of the company, based on their knowledge of

the product.

So in order to separate that, when it's necessary to

separate it, it's helpful to know who, the identity of the

witness.

JUDGE ERICKSEN: But that would be a help to the

party responding to the subpoena. You say you don't want to

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a regular 30(b)(1) witness. But if the corporation knows that

that's a possibility, then currently they could say this is

the identity of the person.

But how does it help you? It's an efficiency for the

responder, but how does it help you to know that you're going

to be able to do two kinds of depositions on the same day

instead of just one?

MS. de BARTOLOMEO: As the noticing?

JUDGE ERICKSEN: Right, as the noticing party.

MS. de BARTOLOMEO: Well, I think it depends on

what's in my notice of the deposition topics. I'm going to be

preparing one way for the corporate discussion. And why am I

deposing this person as an individual? They're not

necessarily on 30(b)(6) topics, but there's some reason I want

to depose that person. Either they have personal knowledge as

to many of the documents, maybe they were involved in the

decision, let's use mass torts as an example since I do pharma

drugs. Maybe they were involved in the marketing of that.

Oftentimes with mass torts, one of the problems is

that marketing gets ahead of R&D and they might get a little

too enthusiastic or aggressive and say things that the R&D

people would not necessarily want them to put out the way they

did.

And so I want to talk to the marketing guy, but I

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corporation's position was on marketing.

JUDGE BATES: I assume from the perspective of the

noticing party that advanced notification of the identity of

the 30(b)(6) witness would add some efficiency because it

would enable you to decide, well, I want to depose that person

anyway and let's try to do it all at the same time, and that

would be more efficient for both sides.

MS. de BARTOLOMEO: Absolutely, Your Honor. I'm a

plaintiff's lawyer and I don't really want to go back and

forth and take this five times if we could do it in one day.

JUDGE JORDAN: Is there a reason to not have advanced

notice of topics, like 30-day advanced notice provision in the

rule as you've heard some people suggest here today?

MS. de BARTOLOMEO: I personally have no objection to

that, Your Honor. When I represent a defendant, I want as

much notice as possible because I need to prepare that

witness.

As a plaintiff, I know I have to get that advanced

notice because I have to think about what I need to prepare my

case and actually prove my case. So it's not like it's going

to just dawn on me two days before the end of the discovery

period.

The time seems to have started again. Do I still

have 53 seconds?

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to make another point.

MS. de BARTOLOMEO: To wrap up. Okay.

I would like to point out that I do take issue with

the -- I think my submission said it, the number, and many of

the people on the panel identified it and so did some of the

witnesses. Artful drafting, we can come up with -- if it's

ten topics, you can make ten very broad topics. That doesn't

get us where we want to go. We want to be efficient. We want

to be surgical. Both sides want to know what we're talking

about, what we're seeking. And I think the meet-and-confer

process can help limit that. And at the same time, one size

does not fit all. 

PROF. MARCUS: When you say you -- 

MS. de BARTOLOMEO: -- that might be five topics --

PROF. MARCUS: But when you say you have a problem

with the number, one thing you might be saying is a flat

across-the-board limit is a number that is likely to be a

problem.

MS. de BARTOLOMEO: Yes.

PROF. MARCUS: What the draft says is that the number

of topics is something open for discussion. Are you saying

that shouldn't be open?

MS. de BARTOLOMEO: No. I think the discussion is

good. But I know there was some submissions that said there

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just going to result in very broad topics, so that doesn't

accomplish anything.

JUDGE BATES: All right. No further question. Thank

you very much for coming. We appreciate it.

MS. de BARTOLOMEO: Thank you.

JUDGE BATES: Our next witness will be Amir Nassihi.

MR. NASSIHI: Good afternoon, everyone. Thank you

for letting me come and talk to you and provide my comments in

my individual capacity.

I'm an attorney with Shook, Hardy & Bacon in

San Francisco. My practice involves working with product

manufacturers, distributors, and retail clients in individual,

mass torts, and class-action litigation.

And most of my practice is California based.

Sometimes in federal court, more often in state court, which

essentially has a similar approach to corporate witness

depositions as 30(b)(6), mimics the rule, doesn't require any

identification. Although California, in state court practice,

does have an objection procedure, which is tremendously

helpful so you don't get the kind of disparity that you have

in federal court as to whether Rule 37(b) default sanctions

apply, et cetera, and the split in decisional law there.

So the focus of my testimony today is on

complications of injecting into the 30(b)(6) process by adding

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For one thing, the timing of the proposed disclosure

of the witness identity will be fraught with disputes.

30(b)(6) witnesses are --

PROF. MARCUS: California state courts have a PMK

requirement; right?

MR. NASSIHI: They have a PMQ requirement, correct.

PROF. MARCUS: That does not lead to any discussion

as to who the person is going to be? 

MR. NASSIHI: It -- it's -- there's no requirement to

identify the person. As a practical matter, just like with

30(b)(6), when it comes to the PMQ, I generally discuss with

the other side when the timing is appropriate. And it differs

from case to case. But, again, the absence of a notice

situation, notice requirement or any rulemaking or notice kind

of compounds that issue.

JUDGE BATES: Well, if there were to be a witness

identification requirement, how long? Four days before the

deposition? A week before the deposition? What's the problem

with that?

MR. NASSIHI: The problem that I've experienced with

disclosure, there's been times I've disclosed too early and

it's caused problems because --

JUDGE BATES: What's too early?

MR. NASSIHI: It depends on the situation. There may

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topics or for corporation who has never put up for corporate

witness before. There may be times where, given the absence

of any notice in the rules, where you have short period of

time to meet the witness, prep the witness, see that, you know

what, this is not the right witness, we need to swap him out.

By that point where you run into trouble is where you've

identified that witness to the other side and then suddenly

you get a 30(b)(1) dep notice because some litigation

advantage might be sensed from the fact you suddenly changed

witnesses, and there is no protection in that situation.

Then you also have a situation where you might

disclose too early, which I've done as well, and then you have

the other side want someone else to be the witness, so they'll

notice him up in their individual capacity and essentially put

you in a position where you have to change designees for the

sake of efficiency.

And invariably you get disputes arise as well on --

on occasion as to whether someone else should be a right

witness. The biggest disputes I've had on that has been --

JUDGE JORDAN: How does any witness identification

impact that, sir? If you didn't identify the witness and they

discovered they had to take that particular witness, they

would notice the person they wanted in the individual capacity

anyway; right?

1 2 : 4 1 : 1 5 MR. NASSIHI: They certainly may, but they wouldn't

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be able to influence your selection of 30(b)(6), your

selection by trying to notice up an individual who -- for

example, if you put up someone as a 30(b)(6) witness on prior

occasions and you need to move away from that and develop

someone new and the other wants that particular person and

expects you to put that person up, you'll suddenly get a

deposition notice setting that person a couple of days

earlier. In that situation you have to go ahead and, out of

efficiency, continues those hearings. You have to go ahead

and make sure to have --

JUDGE JORDAN: I'm having trouble following that

because if they really want that person, when you say they're

influencing your decision about who to put up for 30(b)(6), I

suppose that's true, but you have the right to put up whoever

you want and they have the right to serve an individual

notice; right? So you could -- if there were no change at all

in the rules and they were just as they are now, that would --

would that play out just the same way?

MR. NASSIHI: No. Respectfully, no, it would not,

because they would want that person as a 30(b)(6) in their

corporate witness capacity. And so suppose the corporate

witness is noticed for July 10th. Suddenly you'll get a

deposition for that individual they want to be their corporate

rep for July 8th, and you have a position where you have to

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we're going to have to put this person up anyway, let's just

have him be the 30(b)(6).

JUDGE BATES: If identification of the witness to

testify were only five days before the deposition was

scheduled, then there wouldn't be time to have a notice of

another deposition occurring before that deposition. I don't

see how that would occur.

MR. NASSIHI: Well, depositions can be easily -- you

just get a new deposition notice in that situation. But the

point's well taken. Oftentimes, depending on when disclosure

occurs, oftentimes if it's close enough to a deposition,

you're going to go ahead and proceed with the deposition.

It's an easy process to renotice the deposition for a

different date, and there's no rules in terms of priority that

are actually institutionalized.

And the reality is having a rule on identification

presents a problem when -- on timing disputes, and we're

injecting a whole new source of conflict in here where there

currently isn't any recognized dispute. This issue was never

raised in the original litigation section letter which

prompted a close look at 30(b)(6). A whole host of other

issues which are more appropriate to be dealt with, I think,

we're the focus of the issues that were raised there.

JUDGE BATES: In your practice, do you normally

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MR. NASSIHI: Almost always I do at some point before

the deposition. There's been two particular opposing counsel

who have engaged in some gamesmanship where they've learned

the identities before the deposition. In that case, if I have

cases with them in the future, I precondition it more so. But

generally I do at some point. And, again, there's no one size

fits all as to the timing of that.

JUDGE BATES: We have time for one last point you'd

like to make, please.

MR. NASSIHI: Certainly. 

JUDGE BATES: I'm sorry to cut you off.

MR. NASSIHI: Oh, by all means.

I would just suggest or urge that the standing order

that Judge Donato has in the Northern District of California

which provides presumptive limits on the numbers and treats

30(b)(6) as issues which have some presumptive contours to it,

be looked at and considered because that's been tremendously

helpful in the Northern District of California, and even when

cases are assigned to different judges. And pointing to that

as providing guidance, which can be deviated from case to

case, but provides some kind of guidance.

JUDGE BATES: What's it deviated from if there's a

disagreement where it requires going to the judge for a

resolution? 

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limit and other limits, you have an initial case management

conference right around the same time as the discovery opens

up and you address this as part of the requirements of that,

what deviations there should be from the standard rules. If

it's class action, you'll say we need 15 depositions, we need

to deviate from this, for example.

JUDGE BATES: And you say as well we need 40 topics

for the 30(b)(6).

MR. NASSIHI: Exactly.

JUDGE BATES: Okay. Thank you.

MR. NASSIHI: Thank you. 

JUDGE BATES: Appreciate your testimony.

Our next witness is Donald Myles. 

Good afternoon, Mr. Myles.

MR. MYLES: Good afternoon. Welcome to Phoenix.

JUDGE BATES: Thank you.

MR. MYLES: I've been here for 37 years practicing at

the law firm of Jones, Skelton & Hochuli. My practice is

mainly representing major insurance carriers across the

country in bad faith litigation here.

With regard to 30(b)(6) depositions, almost every

single case involves at least one to three of these

depositions, and categories usually are ten to 25. We get

together, we negotiate that down to a manageable number and we

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So the meet and confer, which is actually required by

the local rules, is done with regard to all of this. So it's

something being put into the rule that really is unnecessary

in which most practitioners do anyway.

JUDGE JORDAN: Can I ask --

JUDGE BATES: Not every state has the same local

rules that you have.

MR. MYLES: Fully understand that. But with regard

to common sense and practicalities and ethics, that's how 80

to 90 percent of us act all the time.

JUDGE JORDAN: But if you've got it in a local rule,

why wouldn't it be salutary to have in a national rule?

MR. MYLES: I'm not saying meet and confer is bad. I

do it in every single case. I would do it if it didn't exist.

We're talking about rules that are for really 10 to

15 percent of people practicing law. Otherwise we wouldn't

need these rules.

The NFL used to have a rule they would not stop the

clock when players were injured in the last two minutes. They

did because people complained that they needed to get -- that

player safety was important.

They then learned that 50 percent of all injuries

happened in the last two minutes of a football game. You

watch a game in the NFL now, there's a run-off because of that

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place that they thought would be positive.

And this rule either should not be touched or it

needs to be completely redone with a lot of things that both

the plaintiffs bar and defense bar have mentioned here.

Otherwise leave it alone.

If we're going to meet and confer, the moment you say

what we should meet and confer about, someone is going to

utilize to their advantage.

Identity. We like identity. There's social media.

We can find out so much about so many people and every

witness, what they've said, where they eat, who they're

married to. You name it, we'll have that information. It's

an advantage. It will be used.

The fact of the matter --

JUDGE BATES: In your practice, is the identity of

the witness to testify usually disclosed sometime, maybe a

short time, in advance of the deposition?

MR. MYLES: Any lawyer asks me, whenever I know

definitively I will tell them. Not a problem.

Now, I will tell you I represent the insurance

industry. There are big cases, medium cases, small cases. I

get a 30(b)(6) case of a $100,000 case, I'm really not that

concerned about who I put up there as a 30(b)(6). I'll tell

them. They're not going to spend that much time; the case

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But in something where it's institutional in nature,

20-, $40 million, that gets people's attention. That's a big

deal. It's a fire drill at these companies when that happens.

People are prepared properly.

I share that information. But in the smaller cases,

candidly, I'll tell them, look, we need to prepare, we need to

get someone. But it may be days in advance of the deposition

that I even meet the person.

And I learn by my preparation we have the wrong

person. We need to get somebody else or we're going to be in

a situation we do not want to be in. 

Now you're going to make that mandatory in every case

that the identity has to be disclosed five days before in a

very compressed standard of time in cases in which there's

really an imposition on corporations. 

Depositions of major insurance companies in this

country, I have 20 going on right now, and that's in Maricopa

County. I can't imagine what it is in California. It's going

on every single day all the time, and they all are the same.

Who knows most about the claims handling? What was the

training of all of the claim handlers? Who drafted the policy

language? Every single case I've seen that.

And like I say, 80, 90 percent of the time, no

problem. The people on the plaintiffs bar and the defense bar

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Half of the plaintiffs bar in this county right here

used to be defense lawyers. Some of them were my partners.

We can work this out.

But making it mandatory will make it a game for that

small percentage of people that don't, that are difficult.

I really don't have that much more to add. I would

encourage you either start over, which I know you do not want

to do, and really address a lot of the things that people have

raised here, or, really, if you want to put a meet and confer,

great, nationally, do it. All the good lawyers in this room,

plaintiffs and defense bars, do it anyway. It's not a big

deal.

But I think to put something in there that could be

utilized by that small percentage will be a problem. 

Thank you very much.

JUDGE BATES: Thank you, Mr. Myles.

Next witness. Francis McDonald, please.

Good afternoon.

MR. McDONALD: Good afternoon. Thank you,

Your Honor. I appreciate the opportunity to appear here today

in Phoenix.

I practice in Orlando, Florida. I've been doing

about the same thing for the last 37 years. I represent

corporations, most frequently corporations that find

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comments that I would make, were I the number one witness this

morning, are going to mirror most of the things that you've

heard already today, and I'm not going to repeat them. But

let me just tell you what my position is as succinctly as I

can and get to the point.

I'm not so much concerned about an amendment to this

rule that would add a meet and confer provision with regard to

the number and the topics of the 30(b)(6) notice. Like many

of the other lawyers that you've heard from already today, we

engage in that already. 

When we conduct a Rule 16 meeting -- or, excuse me, a

Rule 26 meeting with our adversaries I encourage them to agree

to a provision in our report that we send to the court that we

will engage in a meet and confer, not so much about the number

of the topics because I don't think I could ever get a

pre-notice agreement on that, but certainly let's agree to sit

down and talk about the extent, the number, and the topics so

that we can at least try to work it out before we bother the

court with some agreement or some dispute that could be

resolved were we meeting.

So I'm not so much so concerned with that if it is

the province of the committee that we really feel we need to

add that and codify that best practice. So be it.

I'm a little bit more concerned with the

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heard already today. I think it has the potential, and I know

it's not the intent of this committee that has put in a lot of

time and effort to try to better the civil justice system, but

I think it has the potential to counter the designation

mandate that's already in part of the rule, and I would not

want to see that become used by some, not by all, but by some

as a vehicle by which they could gain an advantage over an

organization or a corporation.

JUDGE BATES: In your experience, is the identity of

the witness usually disclosed in advance of the deposition?

MR. McDONALD: It is. And I was sitting there

thinking, I've had a lot of time to sit and think and recall

since listening to the beginning of today's proceedings, and a

lot of times I don't get asked. And when I think back on the

times I don't get asked who the witness is going to be who's

going to be designated by the corporation, I find myself

recalling that I didn't get asked because the opponent on the

other side was either new to this type of litigation or he was

even new to 30(b)(6) deposition to begin with, and I had not

seen he or her many times before.

But on those occasions when I am asked about it, if I

know who it is, sure, I disclose it. I don't -- I don't

ascribe a lot of ill will to my adversaries in doing something

untoward with regard to a 30(b)(6) witness because I think

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deposition or the exercise is to hear what the corporation

knows, not so much what the person who's deemed the mouthpiece

knows.

So I'm not so much worried about that, but sure, I do

disclose it when asked. But -- and listening to all of the

comments today, I think I can kind of coalesce this. This

timing of when notification may be required or mandated, given

the situations that corporations, large and small, find

themselves in when confronted with a 30(b)(6) notice, it would

be problematic to require something that goes a little bit

even beyond 24 hours' notice or 48 hours' notice.

If it was something the day before, maybe that's

starting to get into the area I would think could be

reasonable. But, beyond that, you create the potential for

misuse, and you create an obligation that the corporations

simply may not be able to comply with given their

circumstances.

So I think I'm going to be the first witness to

release my time to the next one. If there's no questions,

I'll be glad to sit down. But thank you for engaging in this

process.

JUDGE BATES: Thank you very much for coming. We

appreciate your testimony.

And the next witness should know that they do not get

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The next witness will be Michael Denton. 

Good afternoon, Mr. Denton.

MR. DENTON: Good afternoon. Thank you for having

me. I'm from a little town called Mustang, Oklahoma, which is

a suburb of Oklahoma City, sort of kind of in a separate

county.

And unlike all these folks, I don't litigate stuff

all over the country. I've traveled a bunch taking

depositions. And that's kind of one of the reasons I wanted

to come here and speak, because from my perspective as a

small-town lawyer, I spent the first eight years doing

insurance defense work, representing Suzuki in product

liability and doing medical malpractice defense work. Since

then, in the last 20 years I still represent a lot of small

businesses and banks, small construction companies. Don't

have any big global or corporate clients like that.

But when I have to go somewhere and take a

deposition, we've talked a lot about the identity, and it's

important to me because -- give you an example. In GM

litigation involving a resistive seat heater case, I know

Troy, Michigan so much better than I should ever know it. I

didn't know there was a Troy, Michigan until I went there.

And that's the place to stay, not in Detroit.

We took numerous depositions because we were playing

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process as a 30(b)(6). Or actually it's a 3230(C)(5) in state

court.

I think everybody here would agree those are the

exceptions to the rule when you have counsel who's playing

games.

The reason it's important to me to know the identity

of a witness that I'm going to be deposing is do I want to

combine that in one trip. Can I please get on that two-hour

flight up to there and rent a car and drive out -- fascinating

how they number the streets up there in Detroit because of

Henry Ford's home -- but drive out there and take that

witness's deposition. First of all, on one, whether it's a

30(b)(6) first or the 30(a) or 30(b)(1), however -- 30(b)(1)

is the notice part, 30(a) just says we get to take

depositions.

JUDGE BATES: Would knowing the identity of the

30(b)(6) witness only three or five days in advance of the

scheduled deposition satisfy that need that you just

expressed?

MR. DENTON: It would be ideal to have it further in

advance, but if they said, hey, by the way, the first thing

we're going to give you on the who's -- who supervised the

testing done by the outside laboratory on behalf of GM is this

person. Great, I know I've seen that person's name on a lot

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look, let's make one trip instead of two. Can we agree? We

can either do them -- I'm thinking we can do them the say day

or we will make it a two-day process.

So the earlier we can get the information, the better

informed I am, and I can make a decision then and there and

avoid the extra costs, the extra time, which ultimately winds

up costing my client. My client has to pay for all these

trips back and forth, assuming there's a recovery at the end

of the day. It's going to deminimize -- minimize that amount

because he's got a --

(Telephone beeps.)

MR. DENTON: Was that me?

JUDGE BATES: Don't worry.

MR. DENTON: Okay. I don't have anything on me.

So I can see it being very beneficial to having that

identity provided. I don't understand the objection because

when I presented witnesses for 30(b)(6), I want to know who it

is too.

I will sit down with my client and I grill them

because, obviously, I'm the lawyer and I'm the one getting

chastised by the judge if I don't have somebody who is

adequately prepared. And so I don't have any problem telling

the other side, hey, here's who I think we need, we got Jim

Bob, he was the guy that did all the training. I know Jim Bob

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stuff went down, the time frame you're looking for, we know

it's Jim Bob, so here's who you want to depose.

I don't have any problem doing that. 

If they want to dig up stuff on Jim Bob, so be it.

We're allowed to dig up information on our adversaries and on

witnesses and impeach them. That's a part of this process.

It's an adversarial process. So I don't understand any

difficulties about the identification.

There's been a lot of talk about the number of

topics, and I've heard several people congratulate this

committee, which I didn't know anything about, not directly,

about what was going on when you guys were doing the

proportionality stuff.

But my thought was Rule 26 handles this. If somebody

gives them 145-topic notice for deposition for 30(b)(6), they

have the means to go to the court and get that resolved. I

think most lawyers will get that resolved anyway.

I also want to point out, though, when you look at

limiting artificially in advance the number of topics to be

included in a 30(b)(6), you've got to understand sometimes

plaintiff's counsel doesn't know. When I sued GM over this

resistive seat heater, my paraplegic client got burned when he

and his wife were on a mission trip and he turned it on

thinking he turned on the low-back part, but he turned on both

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I didn't know anything about resistive seat heaters.

And I sure as heck didn't know anything about how GM

controlled all its documents and what all they contained and

how they -- what names they use. I can't go to GM, or if I

went to Ford and said, hey, I want to know exactly A, B, C. I

don't know what they call it. And it turns out a lot of these

big corporations will change the names and change the file

names and change this and change that. 

So sometimes there's a reason that the topics are

broad. Which goes to the point of conferring. And we've all

talked about meet and confer, but I think in reality confer is

what your draft rules shows us.

And I think it's a great idea. Why not? Why not

make it an obligation. Because for that small percentage of

our practitioners that otherwise wouldn't do it, now they have

to.

And we're all going to keep notes and we're going to

exchange e-mails, and we're going to document our positions

and say, look, we've talked about this and I asked you to tell

me -- you tell me what the database is. An example is how

does a product manufacturer keep track of consumer reports and

complaints. Because they're going to tell you there's been no

litigation. That's not what I want to know. And I don't know

how to ask that. I don't know. 

1 3 : 0 2 : 1 2 Robert Moss Tool Corporation calls it one thing. GM

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calls it something else. Greentree Financial Services calls

its consumer products or consumer complaints something else.

So that interactive process can really help us all in

trying to sort this down and keep the court out of it, if at

all possible, because none of us want to be in front of the

judges if you don't have to be. We want to show that we can

be grownups, we can all get along and do what we're supposed

to do.

Does anybody have any questions? I hit the high

points. I'm like the 4:00 p.m. CLE speaker at Lake Tahoe.

Everybody wants to go to the lake, you don't want to listen to

me.

JUDGE BATES: Any questions for Mr. Denton?

MR. DENTON: Thank you so much. And everybody here,

we appreciate your work, your time. And this is, by the way,

a beautiful building.

JUDGE BATES: As they say these days, back at you.

Thank you very much. We appreciate you coming today

and all the valuable information which we have heard. And

we'll now try to assimilate and do our best with it.

Thank you once again. We appreciate it.

And that completes this proceeding.

(End of transcript.)

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C E R T I F I C A T E

I, PATRICIA LYONS, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion

of the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control, and to the best

of my ability.

DATED at Phoenix, Arizona, this 7th day of January,

2019.

 s/ Patricia Lyons, RMR, CRR

Official Court Reporter 

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