PUBLIC HEARING ON

PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF CIVIL PROCEDURE

JUDICIAL CONFERENCE

ADVISORY COMMITTEE ON CIVIL RULES

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington DC 20544

February 8, 2019
List of Confirmed Witnesses for the

Public Hearing on Proposed Amendments to the 

Federal Rules of Civil Procedure 

Judicial Conference Advisory Committee on Civil Rules 

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E., Washington DC 20544

February 8, 2019

Witness Name Organization Testimony / Comment

1 Keith Altman Excolo Law, PLLC No testimony/comment received

2 Lauren Barnes Hagens Berman Sobol Shapiro LLP Tab 1

3 Mark Behrens International Association of Defense 

Counsel

Tab 2

4 Richard B. Benenson Brownstein Hyatt Farber Schreck, 

LLP

No testimony/comment received

5 Paul Bland Public Justice Tab 3

6 Edward Blizzard Blizzard Law, PLLC Tab 4

7 Megan Cacace Relman, Dane & Colfax PLLC Tab 12

8 Sharon L. Caffrey Duane Morris, LLP Tab 33

9 Mark Chalos Lieff Cabraser Heimann & Bernstein 

LLP

Tab 5

10 Susannah Chester-Schindler Waters & Kraus, LLP Tab 6

11 Andrew B. Cooke Flaherty Sensabaugh Bonasso PLLC Tab 7

12 William J. Conroy Campbell, Conroy & O’Neil No testimony/comment received

13 Alex Dahl Strategic Policy Counsel, PLLC Tab 8

14 Philippa Ellis Owen Gleaton Egan Jones & Sweeney Tab 34

15 Peter J. Fazio Aaronson Rappaport Feinstein & 

Deutsch LLP

No testimony/comment received

16 John S. Guttmann Beveridge & Diamond Tab 9

17 Jill Jacobson Husqvarna Professional Products, Inc. No testimony/comment received

18 Toyja E. Kelley DRI-The Voice of the Defense Bar Tab 10

19 Jessica M. Kennedy McDonald Toole Wiggins, PA Tab 11

20 D. Sterling Kidd Baker, Donelson, Bearman, Caldwell 

& Berkowitz, PC

No testimony/comment received

21 Mark R. Kosieradzki Kosieradzki Smith Law Firm, LLC Tab 13

22 Craig A. Leslie Philips Lytle, LLP No testimony/comment received

23 Chad M. Lieberman Brousseau Bartlett Lieberman LLC Tab 14

24 Altom M. Maglio Maglio Christopher & Toale, PA Tab 15

25 Brad Marsh Swift, Currie, McGhee & Hiers, LLP No testimony/comment received

26 Tobias L. Millrood American Association for Justice Tab 16

27 Michael L. Neff Neff Law Tab 17

28 Michael Nelson Eversheds Sutherland (US) LLP Tab 18
Witness Name Organization Testimony / Comment

29 Mary T. Novacheck Bowman and Brooke, LLP Tab 19

30 Terry O’Neill National Employment Lawyers 

Association

Tab 20

31 Bruce R. Parker Venable LLP Tab 21

32 Thomas W. Pirtle Laminack, Pirtle & Martines No testimony/comment received

33 S. Virginia Bondurant Price McGuire Woods LLP No testimony/comment received

34 Jonathan M. Redgrave Redgrave LLP No testimony/comment received

35 Patrick Regan Regan Zambri Long, PLLC Tab 35

36 Thomas C. Regan LeClair Ryan Tab 31

37 Terri Reiskin Dykema Gossett PLLC Tab 32

38 Ira Rheingold National Association of Consumer 

Advocates

Tab 22

39 Sherry Rozell McAfee & Taft No testimony/comment received

40 Greg Schuck Huie Fernambucq & Stewart, LLP No testimony/comment received

41 Brittany M. Schultz Ford Motor Company Tab 23

42 Patrick Seyferth Bush Seyferth & Paige PLLC Tab 24

43 Michael L. Slack Slack Davis Sanger LLP Tab 25

44 Donald H. Slavik Slavik Law Firm LLC Tab 26

45 Andrew J. Trask Tab 27

46 Palmer Vance ABA Section of Litigation Tab 36

47 Christine E. Webber Cohen Milstein Sellers & Toll PLLC See Tab 20

48 Mike Weston Lederer Weston Craig, PLC No testimony/comment received

49 Julie G. Yap Seyfarth Shaw LLP Tab 28

50 Hassan A. Zavareei Tycko & Zavareei LLP Tab 29

51 Terrence M.R. Zic Whiteford Taylor Preston Tab 30
TAB 1 

TESTIMONY OF

LAUREN G. BARNES

HAGENS BERMAN SOBOL SHAPIRO LLP
SEATTLE BOSTON CHICAGO COLORADO SPRINGS LOS ANGELES NEW YORK PHOENIX SAN DIEGO SAN FRANCISCO WASHINGTON, D.C.

Lauren G. Barnes

HAGENS BERMAN SOBOL SHAPIRO LLP

55 CAMBRIDGE PARKWAY, SUITE 301

CAMBRIDGE, MA 02142

www.hbsslaw.com

Direct 617 475 1957

lauren@hbsslaw.com

January 24, 2019

Via Email

RulesCommittee_Secretary@ao.uscourts.gov

Rules Committee Secretary

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E, Room 7-240

Washington, D.C. 20544

Re: Anticipated Testimony Regarding Proposed Amendment to FRCP 30(b)(6)

Dear Committee Secretary and Members,

My name is Lauren Barnes and I am a partner with Hagens Berman Sobol Shapiro LLP. I 

appreciate the opportunity to address the Committee on the proposed changes to FRCP 

30(b)(6) on February 8, 2019.

1 Below, I provide a brief outline of the issues I expect to cover in

my testimony and will provide fuller written testimony before February 8.

My practice for the last dozen years has focused on pharmaceutical marketing and antitrust 

litigation, alleging unlawful and/or anticompetitive conduct by pharmaceutical manufacturers 

and seeking recovery on behalf of private and public purchasers in class and complex litigation.

The defendants in our cases are typically corporations; so too are the representatives of the 

plaintiff classes. I have also had the honor of helping represent state Attorneys General in 

related litigation.

Our cases are large, often involving damage estimates exceeding hundreds of millions of 

dollars, millions of pages of discovery, and good faith work by counsel to juggle the demands of 

numerous depositions, including multiple Rule 30(b)(6) depositions. In these cases, efficiency is 

key.

The changes proposed by the Committee articulate the routine (and common sense) set of 

negotiations by counsel that already occur. Discussions to clarify topics and advance 

identification of the Rule 30(b)(6) witness or witnesses by both sides happen almost without 

exception, in my experience, and serve this important goal of efficiency. Both plaintiff and 

defense counsel in our cases must cull through mountains of ESI to identify a relevant and 

useable set of deposition exhibits. Ensuring the parties share, as best as possible, an 

 

1 The views expressed here are my own and not necessarily those of my partners or my firm.
January 24, 2019

Page 2

understanding of the issues to be covered and the identity and knowledge base of the

deponent(s) smooths the process for everyone. 

Arbitrary, one-size-fits-all limitations on the number of topics, how they will be treated, and 

how and when notices must be served and negotiated serve no efficient purpose and may 

instead simply result in more trips to the court over issues that can and should be negotiated by 

counsel. What is appropriate in the cases I pursue may make no sense for many other cases. In 

our practice, lawyers operating as zealous advocates for their clients but in good faith work 

within the Rule as currently drafted and are able to sharpen their pencils and agree on the 

appropriate treatment and interpretation of deposition notices and topics, seeking the court’s 

guidance only when truly necessary. That is how it should remain.

I look forward to testifying before the Committee on February 8, 2019.

Sincerely,

/s/ Lauren G. Barnes

Lauren G. Barnes
TAB 2 

COMMENT OF

INTERNATIONAL ASSOCIATION 

OF DEFENSE COUNSEL
COMMENT TO THE

ADVISORY COMMITTEE ON CIVIL RULES

PROPOSED RULE 30(B)(6) IS PROBLEMATIC AND SHOULD BE

REVISED TO ADDRESS PROBLEMS IN RULE 30(B)(6) PRACTICE

January 24, 2019

The International Association of Defense Counsel (“IADC”)1respectfully submits this Comment

to the Civil Rules Advisory Committee on the proposed amendment to Rule 30(b)(6).

I. A Conferral Requirement About the Identify of the Witness is Problematic

The IADC opposes any requirement that the parties confer about “the identity of each person the

organization will designate to testify.” We appreciate that, through this language and the

Committee Notes, the Committee has tried to clarify that an organization retains the right to select

its spokesperson. Nevertheless, the proposed rule is still problematic because it would mandate

conferral over the identity of the witness. Instead of promoting cooperation, the proposal will lead

to disagreements and increase litigation costs.

A change in the rule will lead to attempts to reshape settled law that a noticing party has no right

to dictate the witness speaking for the organization. Further, as the IADC noted in a June 2018

comment, aggressive plaintiff lawyers will use the rule to try to gain a litigation advantage, such

as by trying to block or challenge a witness that has a reputation for being an effective

spokesperson for the organization. Witness identification at the conference also may restrict the

organization’s flexibility to change its proposed designee.

In addition, the proposed amendment puts an unfair burden on organizations and places them in a

catch-22. An organization cannot identify the persons it will designate to testify until there is

clarity as to the “matters for examination” and an opportunity to vet potential witnesses. Yet,

under the rule, opposing counsel could challenge a perceived delay in the organization’s witness

identification as violating the amendment’s “good faith” requirement.

The Committee should remove the proposed “black letter” requirement that parties confer about

the “identity of each person the organization will designate to testify.” Committee Notes fall short.

1 The IADC is an invitation-only, peer-reviewed membership organization of approximately 2,500 of the world’s

leading lawyers who primarily represent the interest of defendants in civil litigation. The IADC has been serving its

members since the 1920s. Its activities benefit the civil justice system and the legal profession. The IADC has

substantive committees that cover over 20 different areas of law. This comment reflects their broad input.
2

II. A Witness Disclosure Requirement Would Also be Problematic and is Unnecessary

At the Committee’s January 4, 2019, public hearing, some members questioned whether defense

concerns might be addressed by replacing the meet and confer requirement with language that

would require organizations to identify each person the organization will designate to testify. This

would be an improvement over the current proposed rule as it would address the possibility that

some might mistakenly conclude that a conferral requirement presupposes some level of input by

the noticing party with regard to witness selection.

As several defense practitioners testified, however, a witness disclosure requirement would create

its own set of problems. These include the opportunity for some plaintiff counsel to “weaponize”

the rule by conducting social media research to question the witness about his or her background

and engage in personal attacks. Other than very basic information, such questions are not

appropriate for a Rule 30(b)(6) deposition. Giving plaintiff counsel the name of the witness in

advance of the deposition inherently invites this kind of questioning. Counsel will, of course, do

the research and, once they have the information, the temptation to use it is just too great. What

comes next: the resume, CV, an attempt to learn the rationale as to why the person was selected?

There is good case law that the name of the individual is irrelevant because the organization is

speaking. But under the proposed rule, the proceeding may focus on the individual and his or her

history, connection to the disputed issues, and expertise or experience within and outside the

organization. This focus on the identity of the witness detracts from the unique nature of the Rule

30(b)(6) proceeding.

In addition, new discovery fights could erupt should the organization change witnesses for any

reason between the initial disclosure and deposition. The Committee heard testimony that this has

happened in some cases when defense counsel have tried to be cooperative and disclosed the name

of the spokesperson in advance of the deposition.

We appreciate that many defendants do identify their client’s spokesperson in advance of a

deposition. Our concern is with a rigid “one size fits all” requirement. The decision to disclose

the identity of the witness may depend on whether a particular plaintiffs’ counsel has a reputation

for cooperation or gamesmanship. The timing of any disclosure may vary for practical reasons.

The Committee should continue to give organizations the discretion to determine whether and

when to identify a spokesperson in advance of a deposition. This is particularly true where, as

here, it does not appear that district judges and magistrates are reporting that disputes are occurring

over witness identification issues.

III. The Committee Should Reconsider the Amendment and Find a Better Way

At the January 4 public hearing, it seemed that the Committee’s interest in proposing a change to

Rule 30(b)(6) may be driven by an assertion by some plaintiff counsel that not all witnesses are

showing up at deposition fully prepared to answer all questions. We do not share this perspective,

but if this is a problem, it appears to be isolated and can be addressed by existing provisions for

sanctions. Identification of the witness in advance of deposition, whether as part of a meet and

confer or through a disclosure requirement, would not fix the alleged preparation issue.

The rule should provide a framework for a meaningful meet and confer as to the “number and

description” of the matters to be examined and clarify what happens when that process breaks

down. Meeting and conferring is widely practiced and often beneficial, but simply mandating a

conference, without more, will not address the problems that led the Committee to take up the rule.
3

The proposed rule does not provide specific guidance as to what is to be discussed in the meet and

confer (the “number and description” verbiage is vague). Who decides when the meet and confer

ends or whether it was in good faith? What happens if it fails? The proposed rule poses more

questions than it answers in our view. The rule has the potential to become a tactical weapon for

requesting parties to accuse responding parties of not acting in good faith. Another possibility is

that the meet and confer turns into a mere “check the box,” making the change superfluous.

In addition to recommending more clarity as to the “number and description” meet and confer

language, we believe the Committee should adopt other ideas that may help address the alleged

preparation concerns stated by some Committee members, among other issues. A new rule should:

 Set forth a clear notice requirement. A definitive requirement (e.g., 30 days notice) for

an organization to respond to a Rule 30(b)(6) notice would reduce acrimony between

counsel and promote adequate (as opposed to rushed) preparation.

 Establish a clear procedure for objecting to a Rule 30(b)(6) notice. Courts have not

been uniform in their treatment of objections. Some courts hold that the organization must

seek a protective order under Rule 26(c), while others take the position that the parties must

not involve the court prior to the deposition. Uniformity would be helpful to achieve.

 Identify reasonable presumptive limits on the number of deposition topics. A 2015

amendment to Rule 26(b)(1) improved the discovery process by making discovery

“proportional to the needs of the case.” Something similar, such as a presumptive limit on

the number of topics for a Rule 30(b)(6) deposition (e.g., 10 topics), would give the parties

a framework for discussion and further the goal of adequate preparation.

 Clarify how Rule 30(b)(6) depositions count towards the presumptive number and

duration of depositions. Rule 30(d) limits depositions to one day of seven hours absent

leave of court, but the 2000 Committee Note indicates that “the deposition of each person

designated under Rule 30(b)(6) should be considered a separate deposition.” Amending

Rule 30(b)(6) to make clear that the presumptive seven-hour limit applies when more than

one witness is designated will incentivize defendants to designate multiple specialized

witnesses rather than make available a single witness for as many topics as possible.

 Allow a written response when the organization has no knowledge on a topic.

Depositions about events distant in time obligate an organization to “create” a Rule

30(b)(6) witness by having persons with no actual knowledge review pertinent corporate

records. The witness may add nothing to the information contained in the documents.

When no employee with percipient knowledge exists, Rule 30(b)(6) should allow the

organization to produce the documents constituting its knowledge on the specified topics.

 Prohibit asking legal contention questions or inquiry into what materials witnesses

reviewed to prepare for their depositions. Rule 30(b)(6) has resulted in confusion with

respect to whether an organization’s deposition is designed to discover only facts or may

also include inquiry into the organization’s legal positions, beliefs, and opinions. A related

emerging issue in Rule 30(b)(6) practice is whether a noticing party may inquire about the

materials the Rule 30(b)(6) witness reviewed to prepare for the deposition, which may

implicate the organization’s legal strategy and privileged communications. Rule 30(b)(6)

would benefit from a clear statement prohibiting these types of inquiries.
TAB 3 

TESTIMONY AND COMMENT OF

PAUL BLAND

PUBLIC JUSTICE
January 24, 2019

Advisory Committee on Civil Rules

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Room 7-240

Washington, DC 20544

Re: Testimony on Proposed Amendments to Federal Rule of Civil Procedure 30(b)(6)

Dear Members of the Civil Rules Advisory Committee:

I am the Executive Director of Public Justice, a national public interest law firm based in 

Washington, D.C. and supported by the non-profit Public Justice Foundation. Public Justice 

(www.publicjustice.net) pursues high impact lawsuits to combat social and economic injustice, 

protect the Earth’s sustainability, and challenge predatory corporate conduct and government 

abuses. I oversee Public Justice’s docket of consumer, environmental, and civil rights cases, and 

I myself have argued and won more than 40 reported decisions from federal and state courts 

across the nation. 

I look forward to testifying in-person at the February 8, 2019 public hearing in Washington, D.C.

My testimony will generally track the written comments submitted on behalf of Public Justice on 

January 24, 2018. The comments are available at: https://www.regulations.gov/document?D=US

C-RULES-CV-2018-0003-0172.

As discussed in my written comments, Public Justice supports the proposed amendment to Rule 

30(b)(6) because it ensures 30(b)(6) depositions will remain an invaluable discovery tool that 

empowers individuals to efficiently access the facts and evidence that are in a defendantorganization’s exclusive control. 

At Public Justice, the preservation of Rule 30(b)(6) is essential to our public interest work in a 

diverse array of litigation contexts. Among many other settings, for example, we have relied on 

the Rule to protect farmers from anticompetitive and exploitative labor practices, consumers 

from deceptive advertising, local communities from polluted waterways, and sexual assault 

survivors from deliberately indifferent schools. In each context, the power and flexibility of Rule 

30(b)(6), based on good faith cooperation instead of one-size-fits-all limits and procedures, 

makes discovery fairer and more efficient.

We support a duty to confer about the identity of designated witnesses, but not the number of 

topics. That’s because the number of topics does not actually control the substantive scope of the 

deposition, and an artificial limit on the number of topics may cause counsel to define topics 

more broadly, making it more difficult for witnesses to prepare and leading to more disputes as 

to whether a notice described topics with reasonable particularity.
Finally, we strongly oppose the continued calls for (1) a procedure for pre-deposition objections 

that would force courts into prospectively resolving details of issues that might or might not arise 

prior to having a context in which to fairly evaluate them, producing unnecessary litigation prior 

to issues even arising; (2) a one-size-fits-all notice requirement that would be both unfair and 

inefficient, and (3) limits on the number of topics, and the number and duration of depositions, 

that would have the potential to gut Rule 30(b)(6), promote gamesmanship, and result in endless 

discovery disputes.

We want to thank the Committee for the amount of time and careful consideration it has put into 

the process of evaluating potential amendments to Rule 30(b)(6). The Rule is critical to our 

public interest litigation efforts because it balances the playing field in the discovery process. 

Any change that weakens or limits the Rule would harm our clients. We’re grateful that the 

committee has proceeded with caution and taken the time to consider all interests at stake. 

Sincerely,

Paul Bland

Executive Director

Public Justice
COMMENT OF PUBLIC JUSTICE

TO THE CIVIL RULES ADVISORY COMMITTEE ON THE PROPOSED 

AMENDMENT TO FEDERAL RULE OF CIVIL PROCEDURE 30(b)(6)

Rule 30(b)(6): Empowering Efficient Litigation in the Public Interest

January 24, 2019

Public Justice, P.C. and the Public Justice Foundation (collectively, “Public Justice”) 

respectfully submit this Comment to the Advisory Committee on Civil Rules in response to the

Request for Comment on the proposed amendment to Federal Rule of Civil Procedure 30(b)(6). 

INTRODUCTION

Public Justice, P.C. is a national public interest law firm that pursues impact litigation to 

combat social and economic injustice, protect the environment, and challenge predatory 

corporate conduct and government abuses. We have one of the most diverse public interest

litigation portfolios in the country. We protect consumers, employees, civil rights, and the 

environment. We litigate to stop sexual assault and bullying in schools, to promote a more 

sustainable and safe food system, to safeguard water sources from pollution, and to provide 

consumers and employees with access to the courts. The list goes on, but our litigation has one

common theme: it aims to protect the underprivileged and the powerless. As a result, we’ve seen 

firsthand the role Rule 30(b)(6) depositions play in a diverse range of litigation contexts where 

an individual with limited resources is trying to hold a larger, more powerful organization—be it 

a corporation, a government agency, or a school district—accountable. 

The Public Justice Foundation is a not-for-profit charitable membership organization that 

supports the work of Public Justice, P.C. and educates lawyers, judges, and the broader public 

about critical social and economic issues that affect the public interest. Its almost 2,800 

members, from all fifty states, represent plaintiffs in a broad range of personal injury, 

employment discrimination and wage and hour cases, consumer, tort (both mass and individual), 

antitrust and securities fraud, commercial, and civil rights cases. Public Justice is dedicated to 

ensuring that the justice system is accessible to and protects all individuals who’ve been harmed 

by illegal conduct.

Public Justice supports the proposed amendment to Rule 30(b)(6) because it preserves the 

fundamental purpose of the Rule: to ensure organizations receive no special advantages that 

enable them to avoid or delay legitimate discovery.1 With the proposed amendment, 30(b)(6) 

depositions will remain an invaluable discovery tool that empowers individuals to efficiently

access the facts and evidence that are in a defendant-organization’s exclusive control.

1 Subcommittee Report: Rule 30(b)(6), Advisory Committee on Civil Rules, at 241 (April 25–26, 2017), 

http://www.uscourts.gov/sites/default/files/2017-04-civil-agenda_book.pdf (explaining Rule 30(b)(6) was 

introduced in 1970 to stop organizational litigants from making it difficult for the opposing party to “nail down 

organizational information”).
2

At Public Justice, the preservation of Rule 30(b)(6) is essential to our public interest work 

in a diverse array of litigation contexts. In this Comment, we begin by highlighting a few 

examples from some areas of our own litigation. We explain how Public Justice uses Rule 

30(b)(6) depositions to protect farmers from anticompetitive and exploitative labor practices,

consumers from deceptive advertising, local communities from polluted waterways, and sexual 

assault survivors from deliberately indifferent schools. In each context, the power and flexibility 

of Rule 30(b)(6), based on good faith cooperation instead of one-size-fits-all limits and 

procedures, makes discovery fairer and more efficient.

Next, we explain why Public Justice supports the proposed amendment’s addition of a 

duty to confer in good faith. Beyond preserving the power and flexibility of Rule 30(b)(6), the

amendment ensures the parties will cooperate to resolve issues outside of the court room. Public 

Justice strongly believes that the duty to confer about the identity of designated witnesses should 

stay in the Rule. We do, however, recommend that the committee remove any duty to confer 

about the number of topics and clarify, in the Committee Note, that the duty to confer should not 

become an excuse to further delay discovery. 

Finally, we strongly oppose the continued calls for (1) an unnecessary procedure for predeposition objections that will only further delay discovery, (2) an unfair and inefficient onesize-fits-all notice requirement, and (3) limits on the number of topics, and the number and

duration of depositions, that would gut Rule 30(b)(6), promote gamesmanship, and result in 

endless discovery disputes. The committee should not reconsider these radical proposals.

I. THE PROPOSED AMENDMENT PRESERVES RULE 30(b)(6) AS A 

POWERFUL AND FLEXIBLE DISCOVERY DEVICE ESSENTIAL TO 

PUBLIC JUSTICE’S WORK. 

As with all discovery, judicial efficiency is best served through cooperative dialogue 

between the parties outside of court. That’s exactly what the proposed amendment requires. 

Instead of adding new standards, limits, and procedures that will over-complicate the process and 

cause parties to repeatedly turn to the court to resolve discovery issues, the proposed amendment 

encourages parties to resolve issues on their own, keeping them out of court. By requiring parties 

to confer about the matters for examination and the identity of the designated witnesses, the 

proposed amendment ensures Rule 30(b)(6) remains an efficient and productive discovery tool 

for all litigants.

Public Justice attorneys regularly rely on Rule 30(b)(6) to hold large, powerful 

organizations accountable, including, among others, exploitive corporate employers, deceptive 

food producers, reckless polluters, and schools indifferent to gender-based violence. To help the 

committee understand how important Rule 30(b)(6) is to public-serving litigation, we highlight 

four concrete examples. Each example is different from the next, but in each, Rule 30(b)(6) 

makes discovery fairer and more efficient, empowering individuals to bring lawsuits that hold 

powerful organizations accountable and advance the public interest.

A. Protecting Farmers from Exploitative Labor Practices

Public Justice uses Rule 30(b)(6) to protect farmers trapped in unfair and anticompetitive 

agreements with big agricultural companies. Morris v. Tyson is an ongoing multi-plaintiff action 
3

brought on behalf of poultry farmers, alleging that Tyson Chicken, Inc.’s system of mass poultry 

production, specifically related to how it pays its growers, violates antitrust laws and exploits 

farmers.2 A major issue in the case is whether Tyson manipulates its compensation system to 

suppress farmers’ wages. Tyson calculates its farmers’ wages based on how they perform 

compared to other Tyson farmers, but Tyson gives each farmer a different set of tools (different

kinds of birds, veterinary services, bird feed, etc). 

When discovery started, Tyson produced tens of thousands of pages of undifferentiated 

scanned hard copy documents related to its compensation system—such as feed tickets 

demonstrating the feed received by particular farmers. This form of production created a timewasting and obfuscatory system where counsel for the farmers were required to laboriously go 

through these documents and create tables for what each farmer received.

Plaintiffs then conducted an electronic discovery 30(b)(6) deposition to determine what 

kind of information Tyson stores electronically, what type of platform the information is stored 

on, and how to retrieve it.3 Through the 30(b)(6) deposition, Plaintiffs learned that much of what 

Tyson produced as scanned PDFs was available electronically in a much more user-friendly 

format that would save Plaintiffs a significant amount of time and resources in the discovery 

process. Without Rule 30(b)(6), Tyson would have been able to make it time-consuming and 

wasteful for the farmers to access this essential information, and pointlessly increase the costs of 

discovery. 

Plaintiffs also conducted a factual Rule 30(b)(6) deposition about how the compensation 

system operates and how Tyson selects what inputs (type of bird, type of feed) each farmer 

receives. With a clear record of Tyson’s practices, the court will have the information it needs to 

evaluate our clients’ allegations that the system is designed or operated in an anti-competitive 

and exploitive way. If Rule 30(b)(6) was weakened, Tyson would have been able to avoid or 

delay legitimate discovery related to its compensation system; Plaintiffs would be forced to 

swallow the costs of the prolonged, inefficient process; and poultry farmers would be denied fair 

and efficient access to justice.

B. Protecting Consumers from Deceptive Advertising

Public Justice is also relying on Rule 30(b)(6) depositions in another ongoing case—one 

about deceptive advertising. In Animal Legal Defense Fund v. Hormel Foods Corporation, 

ALDF alleges that Hormel’s “Natural Choice” advertising is deceptive and misleading because 

animals processed into Natural Choice deli meats are actually raised in factory farms with 

standard industrial feed. Hormel also adds preservatives and nitrates to the final product.4

In this case, both parties have benefitted from Rule 30(b)(6) to build their respective 

cases. The plaintiffs conducted 30(b)(6) depositions to learn what Hormel intended to 

 

2 See Morris v. Tyson Chicken, Inc., No. 4:15-cv-00077 (W.D. Ky.).

3 See Manual for Complex Litigation, Fourth § 11.446 (2004) (“Any discovery plan must address issues relating to 

[electronic] information, including the search for it and its location, retrieval, form of production, inspection, 

preservation, and use at trial.”); Electronic Resources Public Consortium, Identification Guide (Nov. 3, 2010) 

(explaining that electronic storage of information differs with each organization as each has different hardware, 

software, and storage protocols).

4 See Animal Legal Defense Fund v. Hormel Foods Corp., No. 2016 CA 004744 B (D.C. Super. Ct.).
4

communicate with its advertisements, and its policies and practices regarding the treatment and 

slaughter of animals. Likewise, Hormel took a 30(b)(6) deposition of the Animal Legal Defense 

Fund to determine, for standing purposes, if ALDF has been harmed by Hormel’s advertising. 

Hormel probed ALDF’s agenda, activities, and how it spends its resources. This case illustrates 

how Rule 30(b)(6) is an invaluable discovery device whenever an organization—plaintiff or 

defendant—is a party to a case.

Hormel also illustrates the importance of ensuring that Rule 30(b)(6) remains flexible, 

without arbitrary limits on the number or duration of depositions. Hormel decided to designate 

five different witnesses in response to a single 30(b)(6) notice, and as a result, the depositions 

took four days. Presumably, this was the least burdensome way for Hormel to provide a prepared 

witness for each topic area. However, if there were restrictions on the number or duration of 

depositions, Hormel’s prudential decision would become a strategic one. Instead of determining 

the least burdensome way to provide the information requested, parties would likely select the 

number of witnesses that would best limit the opposition’s discovery.

With the facts and evidence obtained through flexible, comprehensive 30(b)(6) 

depositions, Public Justice can advocate for consumers who want to know how their food is 

produced. We can fight for an open, transparent market that protects the consumer’s right to 

choose safe, healthy, and humane products.

C. Protecting Local Communities from Water Pollution

Public Justice, representing several environmental organizations, successfully sued coal 

mine operators in West Virginia for violating the Clean Water Act.5 Rule 30(b)(6) was essential 

to this effort. To prove the coal mines had violated water quality standards, Public Justice had to 

establish that the mines were discharging dissolved salts into streams in amounts that greatly 

exceeded pre-mining baseline amounts. In each case, Public Justice had a large amount of 

circumstantial evidence in the form of hundreds of pages of maps, permit records, and 

monitoring data to support its experts’ opinions that the discharges were causing violations of 

water quality standards. 

Most courts impose such tight limits on interrogatories and requests for admissions that it 

is difficult or impossible to resolve disputes involving large data sets. In addition, it is inefficient 

and time-consuming to have the court review and process these data sets at trial. In such cases, 

Rule 30(b)(6) provides a workable and efficient alternative. Public Justice drafted a Rule 

30(b)(6) notice asking the defendant to produce a designated representative for deposition who 

would testify to the factual accuracy of an attached summary statement of the data and the 

authenticity and truthfulness of the supporting documents. In a statement accompanying the 

notice, Public Justice informed the coal company that it could, alternatively, just stipulate to the 

factual statement and documents.6 Each time, the coal company negotiated and agreed to 

stipulate to the statement of facts, which meant that Public Justice didn’t have to burden the trial

 

5 See Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., 845 F.3d 133 (4th Cir. 2017); Ohio Valley Envtl. Coal., Inc. v. 

Fola Coal Co., 120 F. Supp. 3d 509 (S.D. W. Va. 2015); Ohio Valley Envtl. Coal. v. Elk Run Coal Co., 24 F. Supp. 

3d 532 (S.D. W. Va. 2014).

6 See, e.g., Ohio Valley Envt’l Coal. v. Fola Coal Co., Civil No. 2:13-21588 (S.D. W.Va.), Docket No. 53.
5

judge with hundreds of pages of raw data and the court could focus its attention on the expert 

testimony. 

The coal companies agreed to stipulate to the statement of facts because they knew it was 

the same information Public Justice could establish through a Rule 30(b)(6) deposition. If the 

Rule didn’t exist or was substantially weakened, then coal companies would likely refuse to 

stipulate to any facts, no matter how objective or undisputed they were. But because Rule 

30(b)(6) requires companies to disclose facts known to them, just like any other party to a 

lawsuit, the companies are motivated to cooperate with plaintiffs and promote an efficient 

discovery process. 

These coal mining cases also highlight the importance of ensuring Rule 30(b)(6) 

depositions remain a flexible, cooperative process. If a coal company had refused to stipulate to a 

statement of facts, establishing these facts through standard fact depositions would have wasted 

scores of hours with repetitive testimony. Public Justice would have needed to establish facts 

based on hundreds of data points, which would have required an arduous process of asking the 

company how it interprets an enormous amount of raw data. If there were strict limits on the 

topics covered, or the number or duration of 30(b)(6) depositions, Public Justice wouldn’t have 

been able to get through all the data and establish the necessary factual background. Public 

Justice would be forced to bring the raw data to trial and waste everyone’s time extracting basic 

facts from the hundreds of data points. Thus, artificial, one-size-fits-all limits on 30(b)(6) 

depositions would interfere with legitimate discovery and complicate trials. 

Even worse, limits on the duration of 30(b)(6) depositions would motivate companies to

refuse to stipulate to clearly understood facts, no matter what could be established through a 

30(b)(6) deposition, because going through every data point would help companies run out the 

clock. If every hour spent reviewing undisputed data points is an hour not answering questions 

about the company’s policies and practices, why stipulate to anything? 

But under the proposed amendment, requiring parties to confer in good faith, all parties 

have an incentive to make discovery more efficient. The Rule ensures productive discovery, 

empowering local communities and environmental organizations to hold coal companies 

accountable. In each of these West Virginia coal mining cases, the court held that the coal mine 

was discharging excessive amounts of ionic pollution, damaging the aquatic ecosystem in 

violation of the Clean Water Act and federal mining laws. The West Virginia streams polluted by 

coal mines are “relied upon by West Virginians for drinking water, fishing, recreation, and 

important economic uses.”7 Rule 30(b)(6) was essential to Public Justice’s efforts to protect the 

safety and well-being of West Virginians. 

D. Protecting Sexual Assault Survivors from Deliberately Indifferent Schools

Rule 30(b)(6) helps students hold schools accountable for failing to take appropriate steps

to prevent and respond to gender-based violence. Public Justice litigates Title IX cases against

primary and secondary schools, as well as colleges and universities. For example, Public Justice 

is currently litigating a Title IX lawsuit against Virginia’s Fairfax County School Board for 

violating the rights of a sixteen-year-old student survivor of sexual assault. In response to the 

 

7 Ohio Valley, 24 F. Supp. 3d at 579.
6

reported assault, the school threatened to punish the student survivor, interrogated her, and 

discouraged her from contacting the police—all without contacting her parents. The school failed 

to appropriately discipline the assailant or ensure the survivor’s well-being. The complaint 

alleges the school’s treatment of this one survivor is part of a pattern of ignoring and minimizing 

student-on-student sexual harassment in Fairfax County.

Attorneys litigating Title IX cases frequently rely on Rule 30(b)(6) depositions. To start, 

30(b)(6) depositions are the most efficient way of establishing whether a school receives federal 

financial assistance and thus whether Title IX even applies. Attorneys also can use 30(b)(6) 

depositions to uncover the school’s policies and procedures for investigating complaints of 

sexual harassment or assault. This is much more efficient than fishing around for all university 

personnel ever involved in crafting or editing the schools’ sexual harassment and assault policies, 

especially when the policies have changed over time. 

And a clear understanding of the school’s policies and procedures is essential to building 

a Title IX case. Once plaintiffs determine whether the school has policies in place and what those 

policies are, the plaintiffs can determine whether there are deficiencies in those policies or

highlight the ways in which the school failed, in practice, to follow its own policies. In cases 

where the school has operated with deliberate indifference, this discovery is essential to 

establishing these facts. The school can’t claim that it just didn’t know how to respond to a 

complaint when the school’s very own policies explain what response is necessary to hold 

assailants accountable and keep student survivors emotionally and physically safe.

If Rule 30(b)(6) were limited or weakened, it would make it more difficult for students to 

hold their schools accountable under Title IX, thwarting nationwide efforts to ensure students, 

regardless of their sex, receive an education free of harassment or violence. Rule 30(b)(6) 

ensures schools cannot escape liability under Title IX by hiding behind their complex 

organizational structures, filled with teachers and administrators trying to pass the buck. It 

ensures student survivors of sexual harassment or assault receive the support and education to 

which they are entitled.

II. PUBLIC JUSTICE SUPPORTS THE PROPOSED AMENDMENT, WITH 

A FEW MINOR CHANGES.

Public Justice supports the proposed amendment’s requirement that parties confer in 

good faith about the description of the matters for examination and the identity of each person 

the organization will designate to testify. We strongly encourage the committee to retain the duty 

to confer about the identity of designated witnesses. However, the committee should remove the 

duty to confer about the number of topics for examination. Finally, the committee should clarify 

in the Committee Note that this new duty to confer should not be used to delay discovery.

A. The Duty to Confer about the Identity of an Organization’s Designated Witness 

Should Stay in the Rule.

Under current practice, when parties receive 30(b)(6) notices, they generally inform the 

requesting party about the identity of the person or persons who will be testifying. This common 

practice should be codified in the Rule because it helps ensure the organization is choosing an 

appropriate witness and makes the process more efficient. While the organization is not required 
7

to designate witnesses with personal knowledge about the matters for examination, they often do. 

It’s more efficient to designate an already knowledgeable witness than prepare a witness from 

scratch.8 And a witness with personal knowledge often provides the most comprehensive and 

reliable information. This is especially true with respect to highly technical topics that may be 

difficult for a layperson to learn for a deposition.9

By requiring the parties to confer about the identity of the designated witnesses and the 

matters for examination, the parties can work together to ensure the organization provides wellprepared witnesses. Further, the duty to confer about the identity of designated witnesses serves 

efficient case management. Once a witness is identified, the parties can start planning the 

logistics of the deposition based on the witness’s availability and location.

B. The Duty to Confer about the Number of Topics for Examination Should be 

Removed.

Parties should confer about the matters for examination without getting caught up in 

technicalities such as the number of topics. Communicating about the substantive topics, not the 

number of topics, ensures the organization has notice of the scope of the deposition and can 

adequately prepare its witnesses. The number of topics does not control the scope of the matters 

for examination. If parties agree to a limited number of topics, then counsel seeking discovery 

may make each topic broader than necessary. This makes it more difficult for witnesses to 

prepare and would lead to more disputes about whether topics describe matters with reasonable 

particularity.

Furthermore, a duty to confer about the number of topics suggests that the parties have to 

agree to a set number. But during a 30(b)(6) deposition, a party may learn about another topic 

that it needs to ask questions about. The majority rule is that 30(b)(6) testimony is not limited by 

the topics in the notice and that the scope of the deposition is determined solely by relevance.10

Requiring parties to confer about a particular number of topics would undermine the majority 

rule and create confusion in the law.

Thus, conferring about the number of topics—as opposed to just the substantive matters 

for examination—serves no purpose; it’s a meaningless guidepost. And worse, it may cause 

counsel to put forth overly broad topics in an attempt to cooperate with the opposing party’s 

preference regarding the number of topics. The requirement to confer about the “number of 

topics” should be removed from the proposed amendment.

 

8 See David L. Johnson and Kyle Young, A Primer on 30(b)(6) Depositions: A Defense Perspective, MILLER &

MARTIN PLLC (2011), https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011 

/ac2011/134.authcheckdam.pdf. 

9 See Practical Considerations in Identifying and Preparing Your Rule 30(b)(6) Witnesses, ARNALL GOLDEN 

GREGORY LLP (Oct. 6, 2015).

10 See Eric Kinder & Walt Auvil, Rule 30(b)(6) at 45: Is It Still Your Friend?, A.B.A. SEC. OF LITIG – PRETRIAL 

PRAC. & DISCOVERY (Dec. 3, 2015) (citing Bracco Diagnostics Inc. v. Amersham Health Inc., No. 03-6025 (SRC), 

2005 WL 6714281 (D.N.J. Nov. 7, 2005); Cabot Corp. v. Yamulla Enters., 194 F.R.D. 499 (M.D. Pa. 2000); Detoy 

v. City & Cty. of S.F., 196 F.R.D. 362 (N.D. Cal. 2000)).
8

C. The Committee Note Should Clarify That the Duty to Confer is Not an Excuse to 

Stall Discovery. 

While Public Justice supports the proposed amendment, we are concerned that recipients 

of 30(b)(6) notices might use the new duty to confer in good faith to further delay discovery. 

Another required step in the discovery process is another opportunity for organizations to drag 

their feet, prolonging the process to hike up costs and avoid liability. The committee could 

alleviate this concern by clarifying, in the Committee Note, that the duty to confer may be a 

single conference or a series of discussions, and that the duty is not an excuse to slow down the 

discovery process and take more time to respond to 30(b)(6) requests. The duty to confer should 

serve efficient case management and, if anything, speed up the discovery process.

III. PUBLIC JUSTICE STRONGLY OPPOSES EFFORTS TO WEAKEN 

RULE 30(b)(6).

Some comments continue to call for additional amendments that would harm efficiency 

and undermine the purpose of Rule 30(b)(6). Adding more obstacles and restrictions to 30(b)(6) 

depositions would give organizations a special litigation advantage over individuals and make it 

harder and more costly for human beings of modest means to obtain justice. Below, we address 

three proposals that would make discovery less efficient and less fair. 

A. A Formalized 30(b)(6) Objection Process Would Unnecessarily Delay Discovery.

A new formal objection procedure for Rule 30(b)(6) serves no purpose and would 

significantly delay the discovery process. Instead of letting attorneys confer in good faith and 

cooperatively resolve discovery disputes on their own, some comments suggest a formalized 

objection process that would force courts to consider and resolve preemptive battles about the 

scope and nature of discovery from the get-go. Because the discovery process often starts with a 

Rule 30(b)(6) deposition, a formalized 30(b)(6) objection procedure would encourage 

organizations to bog down and delay discovery from the outset of a case. 

And all for nothing. There are existing procedures to oppose truly abusive Rule 30(b)(6) 

requests. For example, parties can always move for a protective order under Rule 26.

11 There’s 

no evidence that protective orders fail to protect parties from abusive 30(b)(6) requests. 

Other comments suggest the committee should adopt an objection procedure akin to Rule 

45, which imposes restrictions on subpoenas of non-parties. Rule 45 exists because we don’t 

want to impose undue burdens and expenses on non-parties, and the Rule already protects nonparty organizations. To adopt a similar procedure for parties that just happen to be organizations 

would give organizations a unique discovery advantage denied to human beings. This is exactly 

what Rule 30(b)(6) was designed to prevent in the first place. 

 

11 See, e.g., Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129, at *8 (W.D. Mo. Mar. 

28, 2011); Murray v. Tyson Foods, Inc., No. 08-4001, 2010 WL 744302, at *6 (C.D. Ill. Feb. 24, 2010); Doe v. 

District of Columbia, 230 F.R.D. 47, 56 (D.D.C. 2005).
9

B. A One-Size-Fits-All Notice Requirement Would Only Generate More Disputes 

and Deny Parties Legitimate Discovery.

No amendment to impose a new and more burdensome notice requirement is necessary 

for Rule 30(b)(6) depositions. Rule 30(b)(1) already requires parties have reasonable written

notice of any depositions. “There has been very little controversy as to what constitutes a 

‘reasonable’ time” and “[o]bviously no fixed rule can be laid down because much will depend on 

the other circumstances of the particular case.”12 There is no reason the standard that has long 

applied to all parties, without issue, should change for parties that happen to be organizations. 

Not only is a one-size-fits-all notice requirement unnecessary and unworkable, but it would, 

again, give organizations—frequently large, powerful corporations—a unique advantage. 

Finally, there’s no evidence that attorneys often spring Rule 30(b)(6) notices on 

organizations at the last minute, causing undue burdens. That’s because it’s in every party’s 

interest to ensure the organization has enough time to provide a well-prepared witness. The 

reasonable notice requirement, in conjunction with an obligation to confer in good faith, ensures 

flexibility, allowing parties to schedule depositions in the most efficient and effective way based 

on the unique circumstances of their case.

C. Limits on the Number of Topics, or the Number or Duration of 30(b)(6) 

Depositions, Would Cripple the Rule, Enabling Gamesmanship and Endless 

Discovery Disputes. 

Imposing new limits on the number of topics a 30(b)(6) deposition can address—or on 

the number or duration of 30(b)(6) party depositions that can be taken—would dramatically 

weaken this powerful and efficient discovery tool for many types of cases. Some cases are bigger 

or more complex than others. Some require discovery about many different aspects of an 

organization whereas others require an exploration of just a handful of topics. Arbitrary limits, 

applicable to all cases, would blindly limit discovery of relevant facts. Parties are perfectly 

capable of conferring and working out an appropriate plan on their own. And if there is a dispute, 

a trial judge familiar with the specific case will be in the best position to determine the 

appropriate limits. 

Furthermore, limits would disincentivize a phased discovery process, which is far more 

efficient and less costly for everyone. An initial 30(b)(6) deposition is often taken to develop a 

better understanding of the available documents and witnesses, including what kind of data is 

electronically stored and how it’s organized. With this information, attorneys can then go collect 

and review all relevant documents and data, and develop a much narrower, targeted line of 

questioning for a second 30(b)(6) deposition focused on the facts of the case. If attorneys are 

limited in the number or duration of 30(b)(6) depositions, they will forgo this process. If 

attorneys are limited to just one deposition, they’ll be forced to indiscriminately gather all the 

information they can in one fell swoop. In fact, any limit will deter a phased-discovery process 

because attorneys will feel like they need to conserve the number of topics and depositions they 

have left in case a need for additional discovery arises.

 

12 8A Fed. Prac. & Proc. Civ. § 2111 (3d ed.).
10

Finally, as discussed above in context of Hormel, the party that receives a Rule 30(b)(6) 

notice gets to choose how many witnesses to produce. Often an organization will designate 

multiple witnesses to cover different topics or different time periods, presumably because

different people know more about different topics, and relatedly, it’s less burdensome than 

preparing one witness with all of the information. The party seeking a 30(b)(6) deposition should 

not be forced to use extra depositions just because the organization chooses to designate multiple 

witnesses. If that were the case, there’s no doubt that many organizations would strategically 

appoint numerous witnesses to limit the overall discovery of relevant facts.

Limits on the number of topics, the number of depositions, or the duration of depositions 

will only create opportunities for gamesmanship which will, in turn, drag courts into endless 

discovery disputes from the very start. By contrast, requiring parties to confer in good faith about 

these issues allows the parties to develop context-specific plans that ensure fair and efficient 

discovery of relevant facts, without wasting the court’s time and resources. The proposed 

amendment trusts that attorneys are capable of acting like professional adults and working out 

their issues. And in the rare circumstance where they can’t work out an issue, a trial judge can 

make a context-specific decision about what kind of discovery is necessary.

13

CONCLUSUION

The proposed amendment preserves Rule 30(b)(6) as a powerful, efficient discovery 

device in public interest litigation. In Public Justice’s experience, the Rule is invaluable to its 

efforts to hold large, powerful organizations accountable in a variety of contexts. Whether its 

exploitive corporate employers, deceptive food companies, polluting coal companies, or schools 

that fail to protect their students from sexual violence—Rule 30(b)(6) ensures that individuals 

can access the facts and evidence they need to seek justice. With respect to the specific language 

of the amendment, Public Justice strongly encourages the committee to keep the duty to confer 

about the identity of designated witnesses in the Rule. However, Public Justice does recommend 

that the committee remove the duty to confer about the number of topics and clarify that the duty 

is not an excuse to further delay the discovery process. Finally, Public Justice continues to 

oppose calls for radical changes that would prevent efficient and legitimate discovery and give 

organizations a special litigation advantage. 

Amending Rule 30(b)(6) is a daunting task. A lot is at stake. The Rule has long served as 

an effective discovery tool, empowering organizations like Public Justice to hold large 

organizations accountable and promote social and economic justice in different contexts. But the 

proposed amendment rises to the occasion. It preserves the power and flexibility of the Rule 

while further encouraging cooperation. If adopted with the minor suggested changes, the 

proposed amendment will make discovery fairer and more efficient, expanding access to justice.

 

13 See, e.g., Murphy v. Kmart Corp., 255 F.R.D. 497 (D.S.D. 2009) (court determined appropriate limits on scope of 

30(b)(6) notice based on nature of claims and defendant-organization).
TAB 4 

TESTIMONY/COMMENT OF

EDWARD BLIZZARD

BLIZZARD LAW, PLLC













TAB 5 

TESTIMONY OF

MARK CHALOS

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Lieff Cabraser Heimann & Bernstein, LLP

222 2nd Avenue South, Suite 1640

Nashville, TN 37201-2379

t 615.313.9000

f 615.313.9965

Mark P. Chalos

Partner

mchalos@lchb.com

January 31, 2019

VIA E-MAIL

rulescommittee_secretary@ao.uscourts.gov

Rules Committee Secretary

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E, Room 7-240

Washington, D.C. 20544

RE: Written Testimony Regarding Proposed Amendment to FRCP 30(b)(6)

Dear Committee Secretary and Members:

Thank you for the opportunity to testify before the Committee on February 8, 

2019. I am a partner in Lieff, Cabraser, Heimann & Bernstein and I am the managing partner of 

the Nashville, Tennessee, office. We represent consumers, employees, and businesses in class 

and individual cases nationwide. In the context of 30(b)(6) depositions, our clients are sometimes 

producing parties and sometimes requesting parties.

I am submitting this testimony in my individual capacity and on behalf of the 

Tennessee Trial Lawyers Association (TTLA), an organization of which I serve as an officer. 

The mission of the TTLA is to protect the constitutional promise of justice for all by 

guaranteeing the right to trial by jury, preserving an independent judiciary, and providing access 

to the courts for all Tennesseans.

I previously submitted an outline of the issues I plan to address at the hearing. I 

write today to expand on those comments.

1. Disclosing the identity of witnesses in advance of depositions promotes 

efficiency and is consistent with the letter and spirit of the Federal Rules of Civil 

Procedure.

Rule 1 mandates that the civil rules “should be construed, administered, and 

employed by the court and the parties to secure the just, speedy, and inexpensive determination 

of every action and proceeding.” 

As an initial matter, providing the identity of the witness chosen by the producing 

party to testify on its behalf imposes no significant burden on a producing party – certainly not 

such a burden as to justify keeping the identity a secret.

San Francisco New York Nashville Seattle www.lieffcabraser.com
Rules Committee Secretary

January 31, 2019

Page 2

Moreover, disclosing the identity of the producing party’s chosen witness in 

advance of the deposition promotes efficiency, and reduces corresponding costs, in at least the 

following ways:

• It streamlines preliminary deposition questionioning concerning the witness’s 

background, work experience, and relationship with the producing party. In 

the age of corporate websites, LinkedIn, and other online sources, questioning 

parties can learn much information about a witness in advance, so if the 

identity is disclosed beforehand, an hour or more of blind inductive 

questioning about threshold issues can be shorthanded to “Is everything in 

your resume posted on LinkedIn accurate?”

• In many courts, a witness designated as a 30(b)(6) witness can also be 

questioned concerning his or her personal knowledge beyond the topics on 

which the witness is designated to testify in a representative capacity. 

Conducting a “hybrid” deposition, rather than conducting separate depositions

on separate dates, can obviously save time and costs. Without advanced 

identification, it would be functionally impossible to capture the efficiency of 

conducting both a 30(b)(6) deposition and a deposition about the witness’ 

individual knowledge beyond the 30(b)(6) topics. 

One purpose of modern federal civil discovery is to avoid “trial by ambush.” In 

furtherance of this foundational principle, at the outset of litigation, parties are required to 

disclose the identities of “each individual likely to have discoverable information - along with 

the subjects of that information - that the disclosing party may use to support its claims or 

defenses” Rule 26(a)(1)(A)(i). At least 90 days before trial (and often earlier per scheduling 

orders), parties must disclose any witnesses who will give opinion testimony at trial. Rule 

26(a)(2)(D)(i). Scheduling orders routinely require disclosure of fact witnesses expected to 

testify at trial 90 days or longer before trial. In view of these other disclosure requirements, to 

allow a producing party to keep secret the identity of its selected corporate representative until 

the start of her or his deposition is out of step with the current Rules and the principles that guide 

them. 

Accordingly, we support the proposed amendment language that includes the 

identity of the witness as topic to be met and conferred about, and we encourage the Committee 

to consider clarifying that the Rule requires disclosure of the identity of the witness reasonably in 

advance of the deposition. 

2. Limiting the number of topics to be covered during a 30(b)(6) deposition 

is unnecessary and would potentially lead to inefficiencies. 

Including an arbitrary, one-size-fits-all, limit on the number of topics on which a 

party must provide testimony is unnecessary and would promote inefficiency. 
Rules Committee Secretary

January 31, 2019

Page 3

First, the Rules presently provide ample protections for producing parties from 

unduly burdensome or unduly expensive requests. See Rule 26(c) (“The court may, for good 

cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or 

undue burden or expense . . .). Rule 26(b) governs requests for testimony under Rule 30(b)(6) 

and it limits discovery to relevant matters that are “proportional to the needs of the case.”

Likewise, the Rules provide protections for requesting parties from boilerplate objections to the 

scope of deposition requests. Advisory Committee Note on 2015 Amendment (“Nor is the 

change intended to permit the opposing party to refuse discovery simply by making a boilerplate 

objection that it is not proportional.”)

Second, providing arbitrary limits on the number of topics would potential cause 

inefficiency. In my practice, with respect to 30(b)(6) depositions, my clients are sometimes 

producing parties and sometimes requesting parties. As producing party, the more specific the 

description of a topic on which testimony is sought, the more efficient we can be in preparing our 

clients to testify. Broad requests can lead to differing interpretations and time being wasted on 

the resulting disputes. On the other hand, if a request can be broken out into specific constituent 

subtopics, there is less room for variance in interpretation. Conversely, placing an arbitrary limit 

on the number of topics will inevitably induce requesting parties that are bumping against the 

limit to include broader, but fewer, topics to comply with the limit. This can lead to differing 

interpretations of the requests and perhaps related motion practice. The current rule incentivizes 

requesting parties to be as specific as possible, perhaps breaking out requests into specific 

component parts, even if that appears to “increase” the number of topics on which testimony is 

requested. The trend in prior recent rules amendments is towards encouraging specificity; 

imposing arbitrary limits would be a sharp and inefficient change in course.

Accordingly, we support the present proposed language that does not include any 

arbitrary limit on the number of topics. 

3. The Committee Note that states the parties have an ongoing obligation to 

meet and confer, but which process must be completed within a reasonable time, promotes

efficient resolution of disputes.

Including the explicit statement that the parties have an ongoing obligation to 

meet and confer encourages the parties to comply with the mandate of Rule 1 and to resolve 

where possible any disputes informally and without resort to formal - and potentially expensive -

motion practice. The further statement that the meet and confer process must be completed 

within a reasonable time provides guidance to the parties and, if necessary, to courts, that endless 

meet and conferring is not a permissible tactic to delay proceedings. 

Accordingly, we support the relevant language in the Committee Note.
Rules Committee Secretary

January 31, 2019

Page 4

Thank you for your time and consideration and thank you for the Committee’s 

excellent work on these issues.

Sincerely,

Mark P. Chalos

1689582.1
Lieff Cabraser Heimann & Bernstein, LLP

222 2nd Avenue South, Suite 1640

Nashville, TN 37201-2379

t 615.313.9000

f 615.313.9965

Mark P. Chalos

Partner

mchalos@lchb.com

San Francisco New York Nashville Seattle www.lieffcabraser.com

January 24, 2019

VIA E-MAIL

rulescommittee_secretary@ao.uscourts.gov

Rules Committee Secretary

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E, Room 7-240

Washington, D.C. 20544

RE: Anticipated Testimony Regarding Proposed Amendment to FRCP 

30(b)(6)

Dear Committee Secretary and Members:

Thank you for the opportunity to testify before the Committee on February 8, 

2019. I am a partner in Lieff, Cabraser, Heimann & Bernstein in Nashville, Tennessee. We 

represent consumers, employees, and businesses in class and individual cases nationwide. I am 

submitting written comments and testimony in my individual capacity and on behalf of the 

Tennessee Trial Lawyers Association, an organization of which I serve as an officer. While I will 

be submitting more detailed comments in advance of the hearing, I write today to identify the 

topics I intend to cover during my testimony. In specific, I intend to discuss the following topics:

1. Disclosing the identity of witnesses in advance of depositions promotes 

efficiency and is consistent with the letter and spirit of the Federal Rules of Civil Procedure;

2. Limiting the number of topics to be covered during a 30(b)(6) deposition is 

unnecessary, would potentially lead to inefficiencies, and would be unfair. 

3. The explicit statement in the Committee Note that the parties have an ongoing 

obligation to meet and confer, but which process must be completed within a reasonable time, 

promotes efficient resolution of disputes.

Thank you.

Sincerely,

Mark P. Chalos
TAB 6 

TESTIMONY OUTLINE

SUSANNAH CHESTER-SCHINDLER

WATERS & KRAUS, LLP
From: Susannah Chester-Schindler

To: RulesCommittee Secretary

Subject: Federal Rule of Civil Procedure 30(b)(6) - Outline of Testimony

Date: Thursday, January 24, 2019 1:29:58 PM

Rules Committee Members and Staff,

Thank you for allowing me the opportunity to share my perspective regarding the proposed

changes to Federal Rule of Civil Procedure 30(b)(6) and the associated notes. Below is a brief

summary of the topics I will address during the course of my testimony. I anticipate that I

may also offer commentary regarding the testimony of fellow members of the bar, who may

testify before my assigned time and, of course, respond to any questions the Members may

have regarding my comments.

Thank you again for your diligence and hard work in this regard. 

Susannah Balentine Chester-Schindler

Summary

1. Numerical Limitation on Matters for Examination

It is my understanding that several members of the bar have suggested a numerical limitation

should be imposed on the matters for examination. While the addition of a numerical

limitation on the matters may seem efficient at first blush, in practice the limitation will

necessarily be arbitrary and may trigger additional, unnecessary motions practice. 

2. Identity of the Witness

I have also been advised that several members of the bar oppose the comment in the notes

encouraging the conference to include discussion regarding the identity of the witness.

Knowing the identity of the witness, however, is critical in conducting an efficient deposition

pursuant to FRCP 30(b)(6). This is true in all types of cases - including those involving

individuals suffering from latent diseases.

3. Identifying Documents to be Utilized in the Deposition.

This language in the current draft of the notes seems superfluous. From a purely logistical

perspective, experience has shown me that the vast majority of attorneys on both sides of the

bar bring courtesy copies of all documents to their depositions for the witness and attorney

present. 

Further, a preliminary production seems unnecessary and somewhat burdensome on smaller

firms whose attorneys have limited "bandwidth" as it were. The matters for examination

essentially provide a road map for the course of the deposition. Modern discovery (if executed

properly) should leave little room for surprise. Thus, while a "24 hour notice" rule for

identifying exhibits is useful in trial to ensure that a party may timely raise objections to

material it believes should be excluded from the jury's consideration, it is misplaced in a

deposition. 
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TAB 7 

COMMENT OF 

ANDREW B. COOKE

FLAHERTY SENSABAUGH BONASSO PLLC


TAB 8 

COMMENTS OF 

LAWYERS FOR CIVIL JUSTICE AND 

138 COMPANIES 
COMMENT

to the

ADVISORY COMMITTEE ON CIVIL RULES

FIXING WHAT’S BROKEN: A CALL FOR STRAIGHTFORWARD ANSWERS TO 

THE QUESTIONS THAT REGULARLY CONFOUND RULE 30(b)(6) PRACTICE

September 12, 2018

Lawyers for Civil Justice (“LCJ”)1respectfully submits this Comment to the Civil Rules 

Advisory Committee (“Committee”) in response to the Request for Comment2on the proposed 

amendment to Federal Rule of Civil Procedure 30(b)(6) (“Proposed Amendment”).

INTRODUCTION

The Committee receives frequent correspondence about the problems with Rule 30(b)(6), 

including the letter from members of the ABA Section of Litigation Federal Practice Task 

Force3that convinced the Committee to revisit this important topic in April 2016. Prior to this 

public comment period, practitioners and parties presented the Rule 30(b)(6) Subcommittee with 

roughly a dozen meaningful reforms that would improve practice under the rule by fixing what’s 

broken. The Proposed Amendment incorporates none of them. We now urge the Committee to 

reevaluate the best of those improvements and draft a different amendment. But in any event, 

we implore the Committee to reexamine our concerns with the Proposed Amendment, which

would not only fail to improve the rule, but would make a failing rule worse.

1 Lawyers for Civil Justice (“LCJ”) is a national coalition of corporations, law firms and defense trial lawyer 

organizations that promotes excellence and fairness in the civil justice system to secure the just, speedy and 

inexpensive determination of civil cases. For over 30 years, LCJ has been closely engaged in reforming federal civil 

rules in order to: (1) promote balance and fairness in the civil justice system; (2) reduce costs and burdens associated 

with litigation; and (3) advance predictability and efficiency in litigation. Although LCJ’s corporate members are 

often defendants, they are plaintiffs as well. They not only respond to many discovery requests, they also seek 

discovery. They receive many 30(b)(6) notices but also, on occasion, serve them and expect meaningful 

compliance. LCJ wants Rule 30(b)(6), like the rest of the FRCP, to be fair and efficient for everyone, regardless of 

their position in any particular lawsuit.

2 Available at 

http://www.uscourts.gov/sites/default/files/2018_proposed_rules_amendments_published_for_public_comment_0.p

df.

3 Available at http://www.uscourts.gov/sites/default/files/16-cv-a-suggestion_aba_0.pdf
2

The corporate and defense bars strongly oppose the Proposed Amendment’s radical mandate to 

confer about “the identity of each person the organization will designate to testify.”

4 Such a

mandate would violate the Committee’s informal Hippocratic Oath of rulemaking, that an 

amendment to the Federal Rules of Civil Procedure (“FRCP”) should, “first, do no harm.” By 

undermining the well-settled and well-grounded principle that responding organizations have the 

sole right to choose the witnesses who speak on their behalf, the Proposed Amendment would

expand collateral litigation and increase the costs and contentiousness of discovery while 

placing a new burden on the courts. The mandate would increase gamesmanship by enabling 

even more disputes about the propriety of an organization’s witness selection. In short, the 

Proposed Amendment will backfire.

Although well-intended, the Proposed Amendment does not address the real causes of 

dissatisfaction with Rule 30(b)(6). It is not a coincidence that the Committee hears more about 

Rule 30(b)(6) than other discovery rules—and it’s not because lawyers meet and confer more 

frequently about the other types of discovery. Rule 30(b)(6) does not provide a sufficient 

framework for lawyers to reach agreements on the questions that arise over and over, including: 

How much notice is required? How does a 30(b)(6) deposition count towards the limit on the 

number and duration of depositions? What is a reasonable presumptive limit on the number of 

topics? How should an organization object to the scope of a notice? Are contention questions 

permitted? Must witnesses reveal what materials they reviewed in preparation for the 

depositions? What should occur when the organization has no knowledge on a topic?

Providing answers to these questions—not mandating a nebulous and controversial

conference—will remedy the problems that practitioners and parties have been bringing to the 

Committee’s attention. Indeed, guidance on such questions is a material reason why the other 

FRCP discovery rules work better in practice. For example, presumptive limits on various 

categories of discovery provide lawyers reasonable common ground from which they are 

comfortable making modifications as warranted. In contrast, reaching agreement on the number 

of topics for a Rule 30(b)(6) deposition is much more difficult because the rule sets no baseline 

for the discussion—in fact, it doesn’t even acknowledge that there should be any limits. 

Lawyers would find it much easier to modify a presumptive limit on the number of topics if one 

existed, but the rule lacks a starting point for that discussion. 

The Rule 30(b)(6) Subcommittee’s fear that “injecting more specifics into the rule could actually 

generate disputes rather than avoid them”5is unfounded. In fact, the opposite is true: Specific 

4 See Comment from Lawyers for Civil Justice, May 18, 2018, http://www.uscourts.gov/sites/default/files/18-cv-msuggestion_lcj_re_30b6_0.pdf; Letter from John H. Beisner on behalf of the U.S. Chamber Institute for Legal 

Reform, June 11, 2018, http://www.uscourts.gov/sites/default/files/18-cv-u-suggestion_ilr_re_30b6_0.pdf; 

Comment from the International Association of Defense Counsel, June 6, 2018, 

http://www.uscourts.gov/sites/default/files/18-cv-m-suggestion_lcj_re_30b6_0.pdf; Letter from the American Tort 

Reform Association, June 8, 2018, http://www.uscourts.gov/sites/default/files/18-cv-osuggestion_atra_re_30b6_0.pdf; Letter from Kenneth J. Reilly, June 6, 2018, 

http://www.uscourts.gov/sites/default/files/18-cv-r-suggestion_reilly_re_rule_30b6_0.pdf; and Letter from Victor 

Schwartz, June 7, 2018, http://www.uscourts.gov/sites/default/files/18-cv-psuggestion_schwartz_re_rule_30b6_0.pdf. 

5 Conference call January 19, 2018, April Agenda Book at 124.
3

guidance is exactly what practitioners and parties need and are asking the Committee to provide. 

Clarity will foster the cooperative discussions the Proposed Amendment seeks to force. 

It’s not too late for the Committee to respond to the pleas to fix Rule 30(b)(6) with an 

amendment that addresses the true need. Although it is unusual for the Committee to 

reformulate a proposed amendment during a public comment period, it can and should do so

now. The public comment period is not a rubber stamp, and utilizing it as an opportunity to 

develop a better solution is not a failure. Fortunately, there is no need to go back to square one

because the Committee already has received a number of pragmatic and fair proposals6that

derive from well-tested and well-accepted features of other FRCP discovery rules. The 

Committee should remove from consideration the incendiary idea of mandating conferral over 

the identity of witnesses and utilize this public comment period to re-examine a handful of the 

best proposals that address practitioners’ need for clarity and prepare a new amendment for 

public comment next year.

I. THE PROPOSED AMENDMENT WILL BACKFIRE BY CAUSING MORE

LITIGATION, CONFUSION AND ANGST THAN THE CURRENT RULE.

A. The Radical Mandate to Confer About Witness Selection Would Upset WellSettled Law and Spark Contentious Discovery Battles for Courts to Decide.

The case law is clear: Rule 30(b)(6) places the authority for selecting witnesses exclusively with

the organization responding to the deposition notice.7 The noticing party has no right to demand 

any input in the responding organization’s decision to select its witness.

8 This principle is well6 For a discussion of ways to improve Rule 30(b)(6), see Lawyers for Civil Justice, “Advantageous to Both Sides”: 

Reforming the Rule 30(b)(6) Process to Improve Fairness and Efficiency for All Parties (July 5, 2017), 

http://www.lfcj.com/uploads/3/8/0/5/38050985/lcj_response_to_invitation_for_comment_on_rule_30_b__6__7-5-

17.pdf; Lawyers for Civil Justice, Not Up To the Task: Rule 30(b)(6) and the Need for Amendments that Facilitate

Cooperation, Case Management and Proportionality 6-8 (Dec. 21, 2016),

http://www.lfcj.com/uploads/3/8/0/5/38050985/lcj_comment_on_rule_30_b__6__12-21-2016.pdf, and Lawyers for

Civil Justice, “Give Them Something to Talk About: Drafting a Rule 30(b)(6) Consultation Requirement with

Sufficient Parameters to Ensure Meaningful Results 2-3 (December 15, 2017),

http://www.lfcj.com/uploads/1/1/2/0/112061707/lcj_comment_on_30_b__6__consultation_requirement_final_12-

15-17.pdf.

7 See, e.g., Resolution Tr. Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993) (“[Rule 30(b)(6)] places the

burden of identifying responsive witnesses for a corporation on the corporation”); Quilez-Velar v. Ox Bodies, Inc.,

Civ. No. 12-1780(GAG/SCC), 2014 WL 12725818, at *1 (D.P.R. Jan. 3, 2014)(“the noticed corporation alone

determines the individuals who will testify on those subjects.”); Kendall Lakes Towers Condo. Ass'n, Inc. v. Pac.

Ins. Co., No. 10-24310-CIV, 2011 WL 6190160, at *8 (S.D. Fla. Dec. 2, 2011)(“Rule 30(b)(6) imposes an

obligation on the organization to select an individual to testify”)(emphasis original); Lizana v. State Farm Fire &

Cas. Co., No. CIV.A.108CV501LTSMTP, 2010 WL 445658, at *2 (S.D. Miss. Feb. 1, 2010) (“it is Defendant's

choice to designate its corporate representative(s) who consent to testify on its behalf.”). See also 7 JAMES WM.

MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 30.25[3](3d ed.2013) (“It is ultimately up to the

organization to choose the Rule 30(b)(6) deponent”).

8 See, e.g., Ortiz v. Cybex Int'l, Inc., No. 15-2989 (PAD), 2018 WL 2448130, at *8 (D.P.R. May 30,

2018)(“[Plaintiffs] have not directed the court to any rule allowing a party that seeks to depose a corporation to

unilaterally choose the corporate representative. Nor could they, for Rule 30(b)(6) does not allow such a move. . . .

As a consequence, Cybex was under no obligation to designate Vatsaas or Wendt as corporate

representatives.”)(citation omitted); Progress Bulk Carriers v. American S.S. Owners Mut. Protection and Indem.
4

grounded because the purpose of Rule 30(b)(6) is discovery of information reasonably available 

to an organization when the identity of knowledgeable witnesses is unknown.9 And it is the 

responding party alone who will be called to answer if the witness cannot satisfactorily testify 

about responsive information known or reasonably available to the organization.10 Because a 

Rule 30(b)(6) deposition records the organization’s knowledge, not that of the individual 

testifying, many courts have ruled that the name of the corporate witness who will testify is not 

even relevant.11 

Even if the Committee does not intend it to do so, the Proposed Amendment would inevitably be 

seen as an invitation to break open this well-settled law and inject a new requirement that there 

must be give-and-take, with each party having the right not only to provide input but also to 

affect the witness selection. Indeed, the draft Committee Note opines that the parties’ exchanges 

will facilitate “identifying the right person to testify” and qualifies an organization’s right to 

select its designee with the word “ultimately.” This mandate is sure invite tactical abuse 

because, under the guise of seeking the “right” witness, aggressive lawyers will use the rule to 

block or challenge the organizational witnesses perceived to be the most experienced, articulate 

or otherwise effective spokespeople for their organizations. The collateral litigation over the 

meaning of the mandate will impose costs on the parties, inflame tensions between counsel and 

add burdens to judicial workloads. This likely outcome will make the Proposed Amendment 

much worse for courts, parties and counsel than the current rule. 

Ass'n,, 939 F.Supp.2d 422, 430 (S.D.N.Y. 2013) , aff'd, 2 F. Supp. 3d 499 (S.D.N.Y. 2014)(“The rule ... does not 

permit the party issuing the notice to select who will testify on the organization’s behalf”); Colwell v. Rite Aid 

Corp., No. 3:07cv502, 2008 WL 11336789, at *1 (M.D. Penn. Jan. 24, 2008)(“Nothing in the rule indicates that the 

party seeking the deposition can determine the identity of the person to be deposed. “); Booker v. Massachusetts 

Dept. of Public Health, 246 F.R.D 387, 389 (D.Mass. 2007)(“Plaintiff may not impose his belief on Defendants as to 

whom to designate as a 30(B)(6) witness.”); Dillman v. Indiana Ins. Co., No. 3:04-CV-576-S, 2007 WL 437730, at 

*1 (W.D. Ky. Feb. 1, 2007)( Rule 30(b)(6) “does not permit the plaintiff to designate a deponent to speak for the

corporate defendants [and] the plaintiff's attempt to do so is not appropriate.”). Leading federal courts

commentators agree. See 8A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE §

2103 (3d ed. 2013) (“[T]he party seeking discovery under [Rule 30(b)(6)] is not permitted to insist that it choose a

specific person to testify[.]”); 7 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 30.25[3](3d

ed.2013) (“the party requesting the deposition generally has no right to assert a preference if the designee is

sufficiently knowledgeable on the subject matter.”).

9

See, e.g., Painter-Payne v. Vesta W. Bay, LLC, No. 2:12-CV-00912, 2014 WL 1599505, at *3 (S.D. Ohio Apr. 21, 

2014); Progress Bulk Carriers, 939 F. Supp. 2d at 430, .

10 See. e.g., QBE Ins. Corp. v. Jorda Enters., 277 F.R.D. 676, 700 (S.D. Fla. 2012) (barring a company from 

introducing testimony at trial on any matters on which the company’s selected deponent had been unable or 

unwilling testify); State Farm Mut. Auto. Ins. Co. v. New HorizonT, Inc., 250 F.R.D. 203, 217 (E.D.Pa. 

2008)(compelling additional testimony and granting monetary sanctions where a company failed to adequately 

prepare its designated representative for deposition).

11 See, e.g., Roca Labs, Inc. v. Consumer Opinion Corp., No. 8:14-CV-2096-T-33EAJ, 2015 WL 12844307, at *2 

(M.D.Fla. May 29, 2015)(denying motion to compel identity of witnesses and stating “the identity of Defendants’ 

corporate representatives is not relevant and Defendants are not required to identify their Rule 30(b)(6) witnesses 

prior to deposition.”); Klorczyk v. Sears, Roebuck & Co., Civ. No. 3:13CV257 (JAM), 2015 WL 1600299, at *5 

(D.Conn. Apr. 9, 2015)(“the Court will not require Sears to disclose the name(s) or resume(s) of its 30(b)(6) 

witness.”); Cruz v. Durbin, No. 2:11-CV-342-LDG-VCF, 2014 WL 5364068, at *8 (D.Nev. Oct. 20, 2014)(“the 

Rule 30(b)(6) deponent’s name is irrelevant. Rule 30(b)(6) deponent[s] testify on behalf of the organization. See

FED.R.CIV.P. 30(b)(6). Therefore, the court denies Cruz’s motion to compel with regard to the identify of 

Wabash’s Rule 30(b)(6) deponent because it seeks irrelevant information.”).
5

B. Requiring the Rule 30(b)(6) Conferences to be “Continuing if Necessary”

Would Add New Uncertainty to the Rule and Invite More Gamesmanship.

The Proposed Amendment language defining the duty to confer as “continuing if necessary” 

raises more questions than it answers and would invite additional gamesmanship into the rule. 

No doubt, there will often be one party who feels that more conferencing is necessary while the 

other side will be equally convinced that the obligation has been satisfied. The question will be 

asked: Is it necessary to continue conferring as long as one side hasn’t gotten what it wants? 

Who decides if it’s necessary to continue? Practitioners won’t know what is expected under the 

rule, and some will seek the opportunity for discovery sanctions by accusing the other side of 

prematurely terminating the conferring. This outcome is especially likely in the context of a 

brand new duty to confer over witness identity.

II. A NEW RULE 30(b)(6) AMENDMENT SHOULD ADDRESS PRACTITIONERS’

REPEATED REQUESTS FOR CLARITY ABOUT BASIC PROCESS.

A. Rule 30(b)(6) Should Establish a Clear Procedure for Objecting to the Notice

and for Responding when the Organization Has No Knowledge on a

Particular Topic.

Practitioners’ frustration with Rule 30(b)(6) would be substantially reduced if the rule were 

amended to include a procedure for objecting to the notice and a means for proceeding with the 

deposition as to those topics or issues agreed to by the parties. A clear, uniform process is 

needed because the case law on how to handle problematic Rule 30(b)(6) notices is chaotic. 

Some courts that acknowledge there is no mechanism for objecting to Rule 30(b)(6) notices12

conclude that the only remedy is a motion for protective order under Rule 26(c).13 In such 

courts, the recipient must raise its disputes with the court before the deposition occurs14 and faces 

possible sanctions if it refuses to provide the requested testimony at the deposition and raises its 

12 See, e.g., New England Carpenters Health Benefits Fund v. First DataBank, Inc., 242 F.R.D. 164, 165-66 (D. 

Mass. 2007) (“Unlike the procedure with respect to interrogatories, requests for production of documents and 

requests for admissions, there is no provision in the rules which provides for a party whose deposition is noticed to

serve objections so as to be able to avoid providing the requested discovery until an order compelling discovery is 

issued.”). 

13 Id. at 166. See also Ortiz, 2018 WL 2448130, at *8 (“[The responding party] objected out-of-court to the Rule 

30(b)(6) notice but did not seek a protective order. Confronted with a notice of deposition and absent agreement, a 

party who for one reason or another does not wish to comply with a notice of deposition must seek a protective 

order.”); Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 406 (E.D.N.C. 2014)(“The proper procedure to 

object to a Rule 30(b)(6) deposition notice is not to serve objections on the opposing party, but to move for a 

protective order.”); Robinson v. Quicken Loans, Inc., No 3:12-CV-00981, 2013 WL 1776100, at *3 (S.D. W.Va. 

Apr. 25, 2013) (“When a corporation objects to a notice of Rule 30(b)(6) deposition, the proper procedure is to file a 

motion for protective order.”). 

14 Robinson, 2013 WL 1776100, at *3 (“[O]nce a Rule 30(b)(6) deposition notice is served, the corporation bears the 

burden of demonstrating to the court that the notice is objectionable or insufficient. Otherwise, the corporation must 

produce an appropriate representative prepared to address the subject matter described in the notice.”); Int’l Bhd. of 

Teamsters, Airline Div. v. Frontier Airlines, Inc., No. 11-CV-02007-MSK-KLM, 2013 WL 627149, at *6 (D. Colo. 

Feb. 19, 2013) (“filing a pre-deposition motion is the appropriate course of action.”). 
6

objections in response to a propounding party’s motion to compel.15 Other courts take the 

diametrically opposite view that the parties must not involve the court prior to the deposition.16

Those courts find motions for protective order to be generally improper for addressing disputes 

with a Rule 30(b)(6) deposition notice,17 with some courts declaring that motions for protective 

orders are inapplicable to objections on the grounds of relevance and overbreadth.

18

 Instead, the 

responding party is left to assert objections to the notice, proceed with the deposition, and either 

provide the requested information despite the objections or refuse to do so and litigate the 

propounding party’s motion to compel after the deposition.19 There’s little wonder why 

practitioners keep asking the Committee for help.

Rule 45 provides a model for a useful Rule 30(b)(6) objection procedure. Rule 45 allows the 

receiving party to object within the time for compliance or within 14 days, whichever is earlier.

Similar timing may suffice for objections to Rule 30(b)(6) notices, although 30 days would be 

consistent with the timing requirements in FRCP 33, 34 and 36. Under Rule 45, the requesting 

party can move the court to compel production/compliance with the subpoena; a similar 

provision in Rule 30(b)(6) would allow the requesting party to move the court for a ruling on any 

objection, otherwise the deposition proceeds on the topics to which no objection is raised.

Rule 30(b)(6) should also include a simple process for instances when organizations have no 

knowledge on particular topics. Case law is unclear on whether the organization can be required 

to obtain knowledge it does not have at the time of the deposition notice by seeking out and 

interviewing former employees.20 This situation frequently arises when the deposing party seeks 

15 New England Carpenters, 242 F.R.D. at 166 (“What is not proper procedure is to refuse to comply with the 

notice, put the burden on the party noticing the deposition to file a motion to compel, and then seek to justify noncompliance in opposition to the motion to compel.”). 

16 See, e.g., F.D.I.C. v. Brudnicki, No. 5:12–CV–00398–RS–GRJ, 2013 WL 5814494, at *2 (N.D. Fla. Oct. 29, 

2013) (“The proper operation of [Rule 30(b)(6)] does not require a process of objection and court intervention prior 

to the deposition regarding disputed topic designations.”); New World Network Ltd. v. W/V Norwegian Sea, No. 05-

22916-CIV, 2007 WL 1068124, at *4 (S.D. Fla. Apr. 6, 2007) (“the proper operation of the Rule does not require, 

and indeed does not justify, a process of objection and Court intervention prior to the schedule[d] deposition.”). 

17 See McMillan v. Dept. of Corrections, No. 5:13-CV-292-WS-GRJ, 2015 WL 5169214, at *3 (N.D. Fla. Sept. 3, 

2015) (“Defendants’ motion for protective order is not well-taken because it reflects a fundamental 

misunderstanding regarding the purpose of a Rule 30(b)(6) deposition and the Court’s role in resolving disputes 

arising in connection with such depositions.”); Salzbach v. Hartford Ins. Co., No. 8:12-CV-01645-T-MAP, 2013 

WL 12098763, at *2 (M.D. Fla. Apr. 19, 2013) (“a protective order is not the appropriate remedy for deciding 

relevancy of a topic before a 30(b)(6) deposition.”). 

18 See Direct Gen. Ins. Co. v. Indian Harbor Ins. Co., No. 14-20050-CIV-COOKE/TORRES, 2015 WL 12745536, 

at *1 (S.D. Fla. Jan. 29, 2015) (“In situations where a particular noticed topic is alleged to be outside the scope of 

Rule 26 discovery, . . . the remedy is also clear and does not involve this Court preemptively reviewing arguments 

on relevance or overbreadth that may arise in a Rule 30(b)(6) notice[.]”). 

19 See New World Network, 2007 WL 1068124, at *4 (“[T]he better procedure to follow for the proper operation of 

[Rule 30(b)(6)] is for a corporate deponent to object to the designation topics that are believed to be improper and 

give notice to the requesting party of those objections, so that they can be either resolved in advance or otherwise. 

The requesting party has the obligation to reconsider its position, narrow the scope of the topic, or otherwise stand 

on its position and seek to compel additional answers if necessary, following the deposition.”). 

20 QBE Ins. Corp., 277 F.R.D. at 689 (corporation must interview former employees if no present employee has 

knowledge); Great Am. Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 539 (D. Nev. 2008) (that a corporation 

no longer employs a person with knowledge does not relieve it of the duty to prepare a properly educated Rule 

30(b)(6) designee); but see FDIC v. 26 Flamingo, LLC, No. 2:11-cv-01936-JCM, 2013 WL 3975006, at *6 (D. Nev. 
7

to explore events that happened in the distant past or circumstances in which the responding 

entity had only peripheral involvement.21 Rule 30(b)(6) obligates the responding organization to 

“create” a witness by having persons with no actual knowledge review whatever corporate 

records are pertinent to the topics. Because such records are old or incomplete, depositions of 

this type frequently result in accusations of inadequate preparation.22 A responding entity faces 

the threat of sanctions if it fails to produce a prepared witness despite the fact that the witness 

adds nothing to the information contained in the documents.23 All the witness can do is what the 

opposing counsel has presumably already done—read the documents and any prior deposition 

transcripts. A pointless deposition imposes burdens and invites hostility without advancing the 

case toward adjudication on the merits. Accordingly, Rule 30(b)(6) should permit an 

organization, when no employee with actual, percipient knowledge exists, to respond to a 

30(b)(6) notice by producing the documents constituting the organization’s knowledge on the 

specified topics.24

B. Rule 30(b)(6) Should Have a Clear Notice Requirement.

Many of the problems that practitioners bring to the Committee’s attention begin immediately 

upon service of a Rule 30(b)(6) notice—and that’s because the rule lacks a straightforward notice 

requirement. Receipt of a Rule 30(b)(6) notice automatically provokes disagreement about the 

sufficiency of time to respond, which of course brings up related issues concerning the scope of 

the deposition, the availability of witnesses and the adequacy of preparation. The parties’ 

unequal expectations about timing results in unnecessary scheduling difficulties, increased 

acrimony between counsel, wasted time and rushed witness preparation. The lack of guidance 

Aug. 1, 2013) (requiring entity to prepare a Rule 30(b)(6) witness as to ex-employees’ knowledge of the underlying 

transaction was unreasonable). 

2121 See, e.g., Ebonie S. v. Pueblo Sch. Dist. 60, No. 09-CV-00858-CMA-MEH, 2010 WL 728516 (D. Colo. Feb. 25, 

2010) (school district asserting it could not designate a Rule 30(b)(6) deponent because no knowledge remained 

accessible regarding the purchase of certain desks that “likely occurred more than 20 years ago.”); Barron v. 

Caterpillar, Inc., 168 F.R.D. 175, 177 (E.D. Pa. 1996) (in product liability case involving equipment manufactured 

twenty-five years earlier, “both parties should anticipate the unavailability of certain information concerning the 

machine.”). 

22 See, e.g., United States v. Taylor, 166 F.R.D. 356, 361-62 (M.D.N.C. 1996) (ordering corporation that had no 

employees with knowledge of the Rule 30(b)(6) deposition topics to “prepare deponents by having them review 

prior fact witness deposition testimony as well as documents and deposition testimony.”); Ebonie S., 2010 WL 

728516, at *3 (“while the District may not be able to locate documents or an individual having knowledge about the 

original purchase of the desks, the District remains obligated to provide a witness to testify as to information readily 

available to the District regarding the purchase, including the results of its investigation.”). 

23 See Taylor, 166 F.R.D. at 359 (even though corporation had no employees with any knowledge of the topic, if it 

did not present a witness it “could not offer any evidence, direct or rebuttal, or argument at trial as to that topic.”). 

24 See Fish v. Air & Liquid Sys. Corp., No. GLR-16-496, 2017 WL 697663, at *11 (D. Md. Feb. 21, 2017) (“this 

[area of inquiry] fails because the witness would simply read the discovery responses, affidavits, pleadings, 

transcripts, and so on from potentially 40 plus lawsuits (if they are even available in Ford’s files). Plaintiffs do not 

need a witness to recite what is already stated in a document.”). 
8

forces courts to step in to determine whether one-day notice is reasonable,

25 or ten days,26 or 

whether in certain situations less than one week is sufficient.27 Courts and lawyers alike would 

benefit greatly from a clear answer in the rule.

A 30-day notice provision would match the well-accepted requirements contained in other FRCP 

discovery rules.

28 It would help practitioners by providing shared expectations and sufficient 

time to vet the topics, understand the organization’s information, identify and notify the right 

witnesses and prepare for the deposition. It would also provide a fixed framework in which to 

discuss and resolve any disputes untethered to any disagreement about the deadline for doing 

so.

29

C. Rule 30(B)(6) Should Define a Presumptive Limit on the Number of Topics.

Clear presumptive limits—which are uncontroversial features of several FRCP discovery rules—

are useful case management tools that focus discovery30 and promote proportionality.31 An 

express presumptive limit on the number of topics in a Rule 30(b)(6) deposition would have the 

same effects by providing a framework for discussion and agreement about the scope of 

organizational depositions.

The absence of a presumptive limit in Rule 30(b)(6) is a root cause of complaints to the 

Committee. In contrast to the other FRCP discovery rules, Rule 30(b)(6) implies a wide-open 

invitation to disproportional demands and abusive tactics. Indeed, it is not uncommon for 

25 See Gulf Prod. Co. v. Hoover Oilfield Supply, Inc., No. CIV.A. 08-5016, 2011 WL 891027, at *3 (E.D. La. Mar. 

11, 2011). See also, In re Asbestos Prod. Liab. Litig. (No. IV), No. 11-CV-63953, 2012 WL 3104833, at *1 (E.D. 

Pa. July 31, 2012 (finding that one day notice of 30 corporate designees was “unduly burdensome”).

26 See, e.g., Paige v. Commissioner, 248 F.R.D. 272, 275 (C.D. Cal. Jan. 18, 2008)(finding that fourteen days’ notice 

was reasonable); In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 327 (N.D. Ill. 2005)(“ten business days’ notice 

appeared to be reasonable”).

27 See, e.g., Natural Organics v. Proteins Plus, Inc., 724 F.Supp. 50, 52, n. 3 (E.D.N.Y. 1989) (noting that one-day 

notice was reasonable because the parties were on an expedited discovery schedule and the need for a deposition 

arose suddenly); RPM Pizza, LLC v. Argonaut Great Cent. Ins. Co., No. CIV.A. 10-684-BAJ, 2014 WL 258784, at 

*1 (M.D. La. Jan. 23, 2014) (due to district judge granting defendant leave to take two depositions and extending the

discovery completion deadline, greater than 7 days’ notice to plaintiff would have been impossible).

28 See Fed. R. Civ. Pro. 33, 34 and 36.

29 See Tyler v. City of San Diego, No. 14-CV-01179-GPC-JLB, 2015 WL 1956434, at *2 (S.D. Cal. Apr. 29, 2015)

(reasonable notice is used as a defense against compliance with a 30(b)(6) notice). See also Gulf Prod. Co. v.

Hoover Oilfield Supply, Inc., No. CIV.A. 08-5016, 2011 WL 891027, at *2 (E.D. La. Mar. 11, 2011).

30 Are we Insane? The Quest for Proportionality in the Discovery Rules of the Federal Rules of Civil Procedure,

Paul W. Grimm (“Sometimes courts limit the scope of discovery at the outset, but permit the parties to obtain

additional discovery based on the initial results. This approach has the advantage of encouraging the requesting

party to tailor the initial discovery requests to the most relevant information. By doing so, if it later seeks additional

discovery, it will be able to demonstrate to the court that it should be allowed based on the relevance of the initial

discovery served....”)

31 See Fed.R.Civ.Pro. 33, Notes of the Advisory Committee on Rules –1993 Amendment (“Experience in over half 

of the district courts has confirmed that limitations on the number of interrogatories are useful and manageable. 

Moreover, because the device can be costly and may be used as a means of harassment, it is desirable to subject its 

use to the control of the court consistent with the principles stated in Rule 26(b)(2), particularly in multi-party cases 

where it has not been unusual for the same interrogatory to be propounded to a party by more than one of its 

adversaries....”).
9

deposition notices to contain 6032 or even over 100 topics,33 concerning periods of time spanning 

50 or even 80 years of time.34

With a simple amendment, the Committee could respond to the practitioners and parties who are 

asking for guidance with a presumptive limit of 10 deposition topics, providing much-needed 

clarity while also establishing a real framework for the parties to discuss and agree upon what is 

really needed in the case.

D. The Committee Should Clarify how Rule 30(b)(6) Depositions Count

Towards the Presumptive Number and Duration of Depositions.

Of all the issues that the Committee is being asked to address, perhaps the Committee should feel 

most compelled to solve this one: the pervasive confusion about how Rule 30(b)(6) depositions 

count toward the presumptive limits of 10 depositions and the duration of seven hours. This 

procedural problem stems directly from the text of the rule and the Committee Note, and it 

causes disputes in lots of cases and courts. 

Rule 30(d) sets forth what appears to be a universally applicable rule: a deposition is limited to 

seven hours absent leave of court. But Rule 30(b)(6) depositions are often treated as if they are

exempt from the rule. Indeed, the Committee Note provides what is perceived to be a separate 

rule: “For purposes of this durational limit, the deposition of each person designated under Rule 

30(b)(6) should be considered a separate deposition.”35 The confusion caused by that Note has 

been the subject of numerous court decisions, several of which have allowed multiple 30(b)(6) 

depositions—seven hours each—on the basis that the clock “resets” each time a different 

corporate designee is deposed on different topics.36 That approach has the perverse effect of 

penalizing organizations for designating specialized 30(b)(6) witnesses and incentivizing the use

of a single witness for as many topics as possible. In many cases, particularly when there are 

several topics to be addressed, it is beneficial to both parties when several witnesses each address 

a discrete topic area based on their experience and expertise with the organization. A Rule 

30(b)(6) amendment clarifying that the presumptive seven-hour limit applies when more than 

one witness is designated would not only end the uncertainty and result in better-prepared 

witnesses, but also would focus decisions on when to provide more time than the presumptive 

32 See. e.g., Siplin v. Carnival Corp., No. 17-CIV-23741, 2018 WL 3439452, at *4 (S.D. Fla. July 17, 

2018)(“Plaintiff’s notice was quite extensive and voluminous. Sixty deposition topics seems quite over-the-top and 

cumulative in the context of this straightforward case.”)

33 See Ford Motor Company’s Comment to the Rule 30(b)(6) Subcommittee of the Advisory Committee on Civil 

Rules, July 31, 2017, at 3 (discussing recently received notices that included as many as 129 separate topics). 

34 See id. at 4 (discussing topic seeking information regarding corporate policies “from 1930 to the present.”). See 

also id. at 9, 10 (citing examples of deposition topics asking for a witness to address corporate knowledge dating to 

1965, 1955, and even 1950). 

35 FED. R. CIV. P. 30 Advisory Committee’s note to 2000 amendment. 

36 Am. Home Assur. Co. v. Greater Omaha Packing Co., No. 8:11CV270, 2013 WL 4875997, at *1 (D. Neb. Sept. 

11, 2013); Patterson v. N. Cent. Tel. Co-op. Corp., No. 2:11-0115, 2013 WL 5236645, at *4 (M.D. Tenn. Sept. 17, 

2013). See also In Re Rembrandt Tech., No. 09-CV-00691-WDM-KLM, 2009 WL 1258761, at *14 (D. Colo. May 

4, 2009) (holding “[a] blanket rule permitting a seven-hour deposition of each designated deponent is unfair” 

because it rewards overly broad, cumulative deposition notices). 
10

limit on whether a longer deposition is warranted by the topic rather than on whether more than

one person is to be deposed. 

E. Rule 30(b)(6) Should Prohibit Asking Witnesses What Materials They

Reviewed to Prepare for their Depositions and Legal Contention Questions.

The Committee should clarify that Rule 30(b)(6) does not permit asking what materials were 

reviewed in preparation for the depositions or about the parties’ legal contentions. 

Much like the amendments prohibiting discovery of consulting experts and draft expert reports,37

such an amendment to Rule 30(b)(6) is needed to protect work product and privileged 

communications. Although communications between attorney and client in preparation of a 

legal proceeding are privileged as attorney-client communications and work product,

38 it’s not 

always clear whether a questioning party can ask Rule 30(b)(6) representatives about the 

documents they reviewed with counsel to prepare for their testimony. The selection and 

compilation of documents by counsel in preparation for pretrial discovery is “not universally

accepted” as falling within the highly protected category of opinion work product,

39 and it is 

common practice in Rule 30(b)(6) depositions to question organization representatives about the 

precise sources of information they relied on in preparing for their deposition.40 Some courts 

have correctly recognized that work product includes not only “legal strategy . . . but also the 

selection and compilation of documents by counsel,” and therefore, a deposing party may not ask 

Rule 30(b)(6) witnesses to identify documents they reviewed in preparation for the deposition.41

Those courts consider preparation material work product because “[p]roper preparation of a 

client’s case demands that a lawyer assemble information, sift what he considers to be the 

relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue 

and needless interference.”42 Questions pertaining to such preparation are inevitably intended to 

expose that strategy.43 The uncertainty on this issue creates needless trouble for practitioners and 

parties, and an amendment to Rule 30(b)(6) clarifying the law would be a great help.

37 See Fed.R.Civ.Pro. 26(a)(2) and (b)(4).

38 Montgomery Cty. v. MicroVote Corp., 175 F.3d 296, 303 (3d Cir. 1999). 

39 Evergreen Trading, LLC v. United States, 80 Fed. Cl. 122, 136 (Fed. Cl. 2007) (analyzing the Sporck rule). 

40 Sporck v. Peil, 759 F.2d 312, 318 (3d Cir. 1985) (noting respondent’s counsel sought “identification of all 

documents reviewed by petitioner prior to asking petitioner any questions concerning the subject matter of the 

deposition”). 

41 Id at 316-17. See also S.E.C. v. SBM Inv. Certificates, Inc., No. CIV A DKC 2006-0866, 2007 WL 609888, at *22 

(D. Md. Feb. 23, 2007) (finding materials created in preparation for litigation are protected under Fed. R. Civ. P. 

26(b)(3)); In re Allen, 106 F.3d 582 (4th Cir. 1997); Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986). 

42 Sporck, 759 F.2d at 316. 

43 See, e.g., In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Relevant Prod. Liab. Litig., No. 3:09-MD02100-DRH, 2011 WL 2580764, at *1 (S.D. Ill. June 29, 2011) (finding Sporck “is consistent with the Seventh 

Circuit's view of the purpose and scope of the work-product doctrine”); S.E.C. v. Collins & Aikman Corp., 256 

F.R.D. 403, 408 (S.D.N.Y. 2009) (“The Second Circuit has [also] recognized that the selection and compilation of 

documents may fall within the protection accorded to attorney work product, despite the general availability of 

documents from both parties and non-parties during discovery.”); Shelton, 805 F.2d at 1329 (“the selection and 

compilation of documents . . . reflects [counsel’s] legal theories and thought processes, which are protected as work 

product.”). 
11

Rule 30(b)(6) should also address confusion as to whether Rule 30(b)(6) depositions “are 

designed to discover facts”44 or legal contentions. Some courts allow deposing parties to seek 

legal positions, requiring organization representatives to testify to a “corporation’s position, 

beliefs and opinions,”

45 but the case law is highly unsettled. 46 Allowing contention questions is 

an abuse of Rule 30(b)(6) to create oral contention interrogatories in the form of an “impromptu 

oral examination to questions that require [the corporation’s] designated witness to ‘state all 

support and theories’ for myriad contentions in a complex case.”47 Forcing a representative to 

answer legal contention questions requires them to “synthesize complex legal and factual 

positions . . . best left to the contention interrogatories”48 or other discovery. Contention 

interrogatories are better suited to that task because interrogatories can incorporate the necessary 

input from both attorneys and informed individuals.49 “Some inquiries are better answered 

through contention interrogatories wherein the client can have the assistance of the attorney in 

answering complicated questions involving legal issues.”50 A Rule 30(b)(6) amendment should 

make clear that the rule is not a tool for seeking the basis for a party’s legal contentions, claims 

or defenses.

44 JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209 F.R.D. 361, 362 (S.D.N.Y 2002) (“Fed. R. Civ. P. 30(b)(6) 

depositions, are designed to discover facts, not contentions or legal theories . . .”). 

45 QBE Ins. Corp., 277 F.R.D. at 689; see also Cooley v. Lincoln Elec. Co., 693 F. Supp. 2d 767, 791 (N.D. Ohio 

2010). 

46 QBE Ins. Corp., 277 F.R.D. at 688 (witness is required to provide corporate contentions); Cooley v. Lincoln Elec. 

Co., 693 F. Supp. 2d 767, 791 (N.D. Ohio 2010) (corporate representative’s authority to testify extends beyond facts 

to subjective beliefs and opinions); AMP, Inc. v. Fujitsu Microelectronics, Inc., 853 F. Supp. 808, 831 (M.D. Pa. 

1994) (granting motion to compel a Rule 30(b)(6) deposition covering “topics [that] deal largely with the 

contentions and affirmative defenses detailed in [the d]efendants’ answer and counterclaim”). But see SmithKline 

Beecham Corp. v. Apotex Corp., No. 00-CV-1393, 2004 WL 739959, at *3 (E.D. Pa. Mar. 23, 2004) (objection to 

30(b)(6) notice sustained on basis that proponent was improperly attempting to use a Rule 30(b)(6) deposition to 

obtain legal contentions and expert testimony where contention interrogatories would be the better discovery 

device); Wilson v. Lakner, 228 F.R.D. 524, 529 n.8 (D. Md. 2005) (contention interrogatories should be used instead 

of attempting to make a corporate representative testify as to legal contentions); see also BB & T Corp. v. United 

States, 233 F.R.D. 447, 448 (M.D.N.C. 2006); Kinetic Concepts, Inc. v. Convatec, Inc., 268 F.R.D. 255, 256 

(M.D.N.C. 2010) (granting defendants’ motion for protective order barring plaintiffs’ 30(b)(6) depositions as to 

topics seeking testimony regarding the basis for all of Defendants’ defenses and counterclaims”). 

47 Kent Sinclair & Roger P. Fendrich, Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(b)(6) 

and Alternative Mechanisms, 50 ALA. L. REV. 651, 652 (1999). 

48 James C. Winton, Corporate Representative Depositions Revisited, 65 BAYL. LAW REV. 938, 984 (2013). 

49 See SmithKline Beecham Corp. v. Apotex Corp., No. 00-CV-1393, 2004 WL 739959, at *3 (E.D. Pa. Mar. 23, 

2004); United States v. Taylor, 166 F.R.D. 356, 362 (1996), aff'd, 166 F.R.D. 367 (M.D.N.C. 1996). 

50 Taylor, 166 F.R.D. at 363 n.7. 
12

CONCLUSION

The Proposed Amendment’s requirement to confer over witness identification is certain to 

backfire, opening a Pandora’s box of collateral litigation, increased costs, inappropriate 

gamesmanship and tension-filled disputes. The Committee should not proceed with the 

Proposed Amendment. 

Instead, the Committee can and should re-boot the effort to respond to the bar’s call for Rule 

30(b)(6) reform. The Committee receives more requests to reform Rule 30(b)(6) than the other 

FRCP discovery rules because Rule 30(b)(6) is failing to provide sufficient answers to a handful 

of oft-repeating procedural questions. Only by providing guidance on those questions will the 

Committee address practitioners’ and parties’ concerns and achieve the goal of fostering 

cooperation by counsel on Rule 30(b)(6) depositions. 

This public comment period presents an opportunity of to reexamine a handful of straightforward 

suggestions that are already on the table. The best ones are applications of well-tested and wellaccepted features in other FRCP discovery rules. A new amendment should respond to the bar’s 

need for: a clear process for objecting to the notice and resolving those objections; a mechanism 

for responding without a deposition when the organization has no witness with knowledge of a 

particular topic; a defined notice requirement; a presumptive number of topics; a straightforward 

definition of how 30(b)(6) depositions count toward the presumptive limits on the number and 

duration of depositions; and clarity that Rule 30(b)(6) does not allow questioning witnesses 

about what materials they reviewed in preparation for their depositions or about the legal 

contentions in the case.
February 5, 2019

Advisory Committee on Civil Rules 

Committee on Rules of Practice and Procedure 

of the Judicial Conference of the United States 

One Columbus Circle, NE 

Washington, D.C. 20544

Re: Letter from Companies Opposing the Proposed Amendment to Rule 30(b)(6)

Dear Judge Bates and Members of the Federal Civil Rules Advisory Committee:

We write in opposition to the proposed amendment to Federal Rule of Civil Procedure 30(b)(6)

involving both party and non-party organizational representative depositions, which would 

mandate conferral over topics including “the identity of each person the organization will 

designate to testify.” Imposing such a requirement would provoke time-consuming and costly 

new discovery disputes as counsel and courts struggle to square the change with the well-settled 

and well-grounded law that the responding organization has complete discretion to select the 

30(b)(6) witnesses that will speak for the organization. Unfortunately, the Committee’s 

statement in its proposed advisory note that, under the proposed amendment, the organization 

would “ultimately” have the right to select its designee will not ameliorate the disruption and 

imbalance that will result from the imposition of this rule, particularly with respect to nonparties. The clear implication of the proposed amendment is that the party noticing the 

deposition has the right to influence the choice of the witness(es). Moreover, the addition of a 

conferral requirement regarding “the number and description of the matters for examination” 

does not provide meaningful guidance or direction as to what precisely is to be discussed. 

Additionally, the “continuing as necessary” requirement is vague and undefined and will spawn 

further controversy—in particular, the length of time in which the parties shall continue to confer 

and who will decide how long the conferral shall last and what constitutes “as necessary.”

Equally important, the proposed amendment offers no solutions to the pressing major failings of 

the current Rule30(b)(6) deposition process. The Committee could do a great service to the 

bench and bar by drafting a different amendment that addresses the well-known and longstanding issues with the rule. A positive amendment would resolve major gaps in the current 

rule: (i) an objection procedure; (ii) presumptive limits on the number of topics; (iii) clear 

instructions on how to count the number of hours allowed for a deposition with multiple topics or 

individuals designated; (iv) a uniform prohibition on contention questions; and (v) a safe harbor 

for circumstances in which an organization no longer has relevant knowledge due to the passage 

of time or for other reasons. 

In summary, although we strongly urge the Committee to reject the proposed amendment as 

written, we would enthusiastically support a decision to draft a new amendment addressing the 

important issues that plague practitioners and parties under Rule 30(b)(6).

Thank you for your consideration.
2

Adtalem Global Education

Advance Publications, Inc.

Aisin Holdings of America, Inc.

Altec, Inc.

Altria

American Airlines, Inc.

American Axle & Manufacturing, Inc.

AmeriFirst Financial, Inc.

AmeriTrust Group, Inc.

Argo Group

Armstrong Transport Group, LLC

Ascena Retail Group

Bank of America

BASF Corporation

Bayer U.S.

Becton, Dickinson and Company

Black Canyon Midstream, LLC

Boston Scientific Corporation

BRP Inc.

BWX Technologies, Inc.

California Institute of Technology

Campbell Soup Company

Cardinal Health

CarMax, Inc.

CBIZ, Inc.

Celgene Corporation

Clare Holdings

Colorado Dental Service, Inc. d/b/a Delta Dental of Colorado

Comcast Corporation

Continental Corporation

Cooper Tire & Rubber Company

Cornelius Advisors

Cracker Barrel Old Country Store, Inc.

Cree, Inc.

CTS Cement Manufacturing Corporation

Cummins Inc.

DCS Corporation

DEKRA North America

Delage Landen Financial Services, Inc.

Eatwell Enterprises LP

Eli Lilly and Company

EMR (USA Holdings) Inc.

Exclusive Trading Company

Extrusion North America at Hydro

Exxon Mobil Corporation

Farmers Insurance
3

FCA US LLC

FedEx Express

First Financial Equity Corp.

Ford Motor Company

Ford Motor Credit Company, LLC

General Electric Company

General Motors Company

GlaxoSmithKline LLC

Gleason Corporation

Global Investment Alliance Inc.

Gobo Ventures

Good2Go Auto Insurance

Goosehead Insurance, Inc.

Gordon Food Service

Greenlane

Harvey Gulf International Marine, LLC

Hecla Mining Company

Honda North America, Inc.

Horizon Bank

Hyundai Motor America

Idaho Power Company

Infor

JLT Specialty Insurance Services Inc

Johnson & Johnson

Karta Legal

Kubota Tractor Corporation

Kudelski Group

Legrand North & Central America

Lifeway Foods, Inc.

Louisiana-Pacific Corporation

Lowe Enterprises

Macy’s, Inc.

Marriott International, Inc.

Marriott Vacations Worldwide Corporation

Mazda Motor of America, Inc.

Medtronic

Meijer

Microsoft Corporation

Molson Coors Brewing Company

MRC Global Inc.

MSA Safety

Mueller Water Products, Inc.

National Collegiate Athletic Association

Nelnet, Inc.

NetScout Systems, Inc.

Newell Brands Inc.
4

NFIB Small Business Legal Center

Novartis Pharmaceuticals Corporation

NuScale Power

Other World Computing, Inc.

Pfizer, Inc.

Phibro Animal Health Corporation

Phillips Service Industries, Inc.

PROS Holdings, Inc.

PubMatic, Inc.

Pyro Spectaculars, Inc.

Quanex Building Products Corporation

Red Lobster Seafood Co

Red Wing Shoe Company, Inc.

Rexel USA, Inc.

Rick Engineering Company

Roush Enterprises, Inc.

Rug Doctor, LLC

Scientific Drilling International, Inc.

Seneca Promotions, Inc.

Simon Property Group

State Farm Mutual Automobile Insurance Company

Stryker Corporation

Takeda Pharmaceuticals U.S.A., Inc.

Textron Inc.

The Dow Chemical Company

The Powell Group

The Sherwin-Williams Company

The Walt Disney Company

Toyota Motor North America, Inc.

Uber Technologies Inc.

USAA

Vaya Health

Verizon Communications Inc.

Victory Wholesale Group

Volkswagen Group of America, Inc.

WABCO

Walgreen Company

Walmart

Westat, Inc.

Whirlpool Corporation

Wiland, Inc.

Worley Claims Services, LLC

Yard Mule Specialists, Inc.

ZF Friedrichshafen AG

Zimmer Biomet

Zydus Pharmaceuticals (USA) Inc.
TAB 9 

COMMENT OF 

JOHN S. GUTTMANN

BEVERIDGE & DIAMOND
Beveridge

&Diamond

John S. Guttmann

1350 I Street NW Suite 700

Washington, DC 20005-3311

+1.202.789.6020

jguttmannQbdlaw.com

January 24, 2019

VIA U.S. MAIL AND EMAIL

Advisory Committee on Civil Rules

Administrative Office of the United States Courts

One Columbus Circle, NE, Suite 7-240

Washington, D.C. 20544

Re: Proposed Amendments to F.R.C.P. 30(b)(6)

Dear Members of the Civil Rules Advisory Committee:

I write to submit written comments in advance of the hearing on the proposed

amendments to Civil Rule 30(b)(6) that is scheduled for February 8, 2019. Thank you for

considering these comments and the testimony that I will provide at the upcoming hearing.

By way of background, I have been practicing civil litigation, primarily on the defense

side, since 1980. Most of my work has been in the environmental and toxic tort areas. I have

litigated cases in over two dozen federal and state courts around the United States including

serving as lead trial counsel in multiple jurisdictions. My practice includes cases in multi-district

litigation in which Rule 30(b)(6) depositions are used extensively and one such deposition is

relevant to many cases. I am currently a member of the Board of Directors of DRI —The Voice

of the Defense Bar as well as a member of its Litigation Skills, Toxic Tort &Environmental Law

and Product Liability Committees. My goal here is not to repeat comments that DRI has already

submitted through other representatives including its President Toyja E. Kelley. Instead, I hope

to offer points that come from my own practice of almost four decades. I have also obtained

input from colleagues at my firm.

Parties take Rule 30(b)(6) depositions in most of the federal civil cases my colleagues

and I work on. These depositions are very important and valuable to the parties. In many cases,

Rule 30(b)(6) depositions streamline discovery. They can help focus cases on the critical

questions by enabling the parties to deal with issues that are not in dispute during early

discovery.

Austin, TX Baltimore, MD Boston, MA Englewood, NJ

New York, NY San Francisco, CA Seattle, WA Washington, DC
Beveridge %~

&Diamond

Advisory Committee on Civil Rules

January 24, 2019

Page 2

This is not to say that the Rule cannot be improved. Here are three possible

improvements.

(1) Rule 30(b)(6) depositions are sometimes used to circumvent limits on the number

and length of depositions. Some Rule 30(b)(6) notices cover many topics and require the party

that receives the notice to produce an unreasonable number of witnesses in response to a single

notice. Although these abuses are policed today, primarily by Magistrate Judges, they do occur.

Amendments of the rule that would set reasonable limits on the scope and number of 30(b)(6)

notices would both reduce the number of disputes that are taken to the judiciary and further the

principle that discovery should be proportional to the nature and size of a case.

(2) The addition of a procedure for objecting to the scope of a Rule 30(b)(6) notice

would help litigants by eliminating situations in which objections are raised only during the

deposition itself and then elevated to the Magistrate Judge. It benefits everyone when such

disputes are resolved before a deposition starts.

(3) The addition of a mechanism by which the recipient of the notice could inform the

noticing party that it has no witnesses available with knowledge that goes beyond its documents

would eliminate unnecessary depositions. In my practice, this issue comes up frequently because

many of the cases on which we work turn on events that took place decades ago and no one with

personal knowledge can be found, not even a retiree.

The proposal contains one aspect that I respectfully suggest is very ill advised and would

increase the number of disputes taken to Magistrate Judges. A meet and confer process about the

identity of 30(b)(6) witnesses - as distinct from the topics to be covered -would accomplish

nothing positive and would increase the number of disputes. The party producing the 30(b)(6)

witness is bound by that witness's testimony in a way that it is bound by no other testimony. The

rule as it exists today, and as it is proposed to be amended, leaves the decision as to the identity

of the 30(b)(6) witness to the party that will be bound by his or her testimony. That is as it should

be. A mandatory meet and confer process about the identity of the witnesses would, however, be

used in many cases to undercut the producing party's choice.

Even today, parties noticing 30(b)(6) depositions sometimes push opposing parties that

are producing witnesses to utilize people who are already known from individual depositions as

weak witnesses. In every case, each party noticing a 30(b)(6) deposition would want the

producing party to put forth witnesses who would offer testimony that helps the noticing party.

Adding to the rule a meet and confer process about the identity of the witnesses will inevitably

result in numerous situations in which the noticing party will claim that the noticed party has not

conferred in a meaningful way because it has not agreed to produce a witness of the noticing

party's choosing. Disputes concerning whether the witness being produced is actually the

appropriate witness will end up before Magistrate Judges. However, that is not how the rule is

supposed to work.
Beveridge

&Diamond

Advisory Committee on Civil Rules

January 24, 2019

Page 3

Meet and confer requirements in litigation are a good thing, particularly on subjects

related to discovery. They typically narrow and eliminate disputes without burdening the courts.

In this instance, however, a mandatory meet and confer process would have exactly the opposite

effect. The choice of the 30(b)(6) designee lies with the producing party alone. A meet and

confer process would add nothing to the producing party's decision making about the identity of

the witness it produces while at the same time inevitably resulting in more disputes, additional

costs to the parties and increased burdens on the courts.

Very truly yours,

S. Guttmann
TAB 10 

COMMENT OF 

TOYJA E. KELLEY

DRI-THE VOICE OF THE DEFENSE BAR
November 20, 2018

Rule 30(b)(6) Subcommittee of the Advisory Committee on Civil Rules

Administrative Office of the United States Courts

One Columbus Circle, NE, Suite 7-240

Washington, D.C. 20544

Dear Members of the Civil Rules Advisory Committee:

I am President of DRI – The Voice of the Defense Bar, (DRI), and am writing to you on behalf 

of our organization to respectfully comment on the changes recently proposed to Rule 

30(b)(6).

With a membership of 20,000 individual and corporate members, DRI is the world's largest 

international membership organization of lawyers involved in the defense of civil litigation. 

The history of DRI encompasses many years of effort by dedicated lawyers who see the 

need for a coordinated approach by defense lawyers to the challenges of a civil defense 

practice. We see Rule 30(b)(6) as one of those challenges. DRI is committed to anticipating 

and addressing issues germane to defense lawyers and the interests they represent, 

improving the civil justice system, and preserving the civil jury trial.

The suggested rule change, in the main, should be helpful to all litigants by imposing the 

duty to meet and confer concerning the number and description of the matters for 

examination which should help all parties clarify the scope of the deposition to hopefully 

allow better preparation by each side. What is missing is a framework for that discussion. 

It would be helpful to have Rule 30(b)(6) clarify that such depositions are subject to 

Rule 30(a) and (d), so that such depositions are included within the limited number of 

depositions and the time limits on them, unless otherwise provided by a stipulation of the 

parties or court order. In addition, it would promote further efficiency by providing a 

presumptive limit on the number of “matters for examination” at such deposition. 

In addition to those elements which, if added, would improve the rule, the proposed rule 

would impose a new unwarranted duty on organizations requiring them to confer about 

the identity of each person to be designated to testify. Organizations might be encouraged 

by way of the Committee Note to do so, but imposing that as a duty in each case is unwise,

and that language should be removed from the proposed amendment.

In most cases, once the subjects and the likely scope of inquiry are understood by both 

sides, the burden on the organization to designate who will testify on its behalf concerning 

“information known or reasonably available to the organization” is easily met and seldom 

is the designation of concern. After all, the designee is testifying to the organization’s 

information about the matters under examination, not the designee’s personal knowledge 

concerning those topics. Compelling the organization to confer in good faith about “the 

identity of each person the organization will designate to testify” implies that the party 
November 20, 2018

Page Two

issuing the notice has some right to participate in that choice, which contradicts the rule’s clear and 

unambiguous mandate that it is the organization that must designate who the witness will be. 

When a party wants a specific witness to testify, the party is free to depose that individual about their 

personal knowledge, which knowledge may include matters inquired of the organizational witness, but 

those depositions are subject to the limitations on the number and time length for such depositions 

contained elsewhere in Rule 30. 

In its 2017 comments, DRI identified other useful improvements to the rule which remain areas where 

we believe useful rulemaking should occur:

• Amendments to Rules 16 and 26(f) that would include Rule 30(b)(6) in party

conferences, pretrial conferences and scheduling orders;

• An amendment to Rule 26(e) allowing for supplementation of Rule 30(b)(6) depositions;

• An amendment to Rule 30(b)(6) that provides a mechanism for making and

resolving objections to the notice;

• An amendment to Rule 30(b)(6) that provides a presumptive limit of ten topics;

• An amendment to Rule 30(b)(6) that establishes a means for organizations to certify

that they have no knowledge beyond information contained in documents and,

where such certification is made, no deposition is required;

• An amendment to Rule 30(b)(6) clarifying that a deposition is not required on topics

that have been subject to deposition before and where the transcript is available; and

• An amendment to Rule 30(b)(6) prohibiting contention questions.

Some of these are included in the Committee Note, which is helpful; however, DRI continues to believe 

provisions allowing supplementation of responses to organizational depositions, setting a presumptive 

limit on the number of topics, allowing an organization to certify there is no information beyond 

documents available within the organization or submitting prior transcripts sufficiently responsive to a 

topic in the notice to remove that topic from the notice, remain worthy of further consideration because 

they are in the spirit of the Committee's 2015 discovery amendments which encourage cooperation, 

proportionality and early case management. 

Also, DRI supports the positions and reasoning provided by Lawyers for Civil Justice in their 

September 12, 2018 submission to the Advisory Committee. 

DRI respectfully urges the Advisory Committee to improve the proposed amendment by making further 

revisions as suggested here. Thank you for your consideration.

Sincerely,

Toyja E. Kelley

DRI President
TAB 11 

COMMENT OF

McDONALD TOOLE WIGGINS, P.A.
MTW 

MCDONALD TOOLE WIGGINS, P.A. 

ATTORNEYS AT LAW 

November 29, 2018 

Submitted electronically: 

Hon. John D. Bates, Senior Judge 

Chair, Advisory Committee on Civil Rules 

United States District Court for the District of Columbia 

E. Barrett Prettyman Courthouse 

333 Constitution Avenue, N.W. 

Washington, D.C. 2001 

Re: Proposed Amendment to Federal Rule of Civil Procedure 30(b)(6) 

Dear Judge Bates: 

This letter is submitted on behalf of McDonald Toole Wiggins, P.A., a civil trial firm in 

Orlando, Florida. Our attorneys have over 100 years of combined advocacy experience. 

Moreover, our firm has defended countless Rule 30(b)(6) depositions on behalf of numerous 

corporations, and we respectfully submit these comments about the Proposed Amendment to the 

rule, as well as our concerns with the rule as currently written that were not captured by the 

proposed revisions. In short, the proposal mandating a meet and confer regarding the identity of 

the proposed 30(b)(6) witness is, in our view, unnecessary and unwarranted. More consistent 

with considerations of proportionality and reasonable discovery, we believe the meet and confer 

process would be more beneficial to address the number and scope of topics at issue in a 30(b)(6) 

deposition, not the identity of the chosen witness. We respectfully ask the Committee to reject 

the Proposed Amendment and reexamine other submissions for amendments submitted prior to 

the publication of the Proposed Amendment, such as limitations on topics and duration, 

limitations on the scope of the 30(b)(6) notice, and limitations on discovery into deponent 

preparation. 

Shortcomings and Unintended Consequences of the Proposed Amendment 

Regarding the Identification of Witnesses 

The Committee has made it clear that its goal in amending Rule 30(b)(6) is to resolve 

potential disputes before the deposition occurs and without the involvement of the courts. See 

e.g., Rule 30(b)(6) Subcommittee Report to the Advisory Committee on Civil Rules, April 10, 

2018. "Although the rule ultimately gives the organization the right to pick its designee, 

111 N. MAGNom AvENIJE l SurrE 1200 l ORLANDO. Ff. 32801 I 407.246.1800 I mim.MTWI.EGAL.Com 
Hon. John D. Bates, Senior Judge 

November 29, 2018 

Page 2 

conferring about that in advance might avoid later controversy." Id. While we agree with the 

Cornmittee's goals of avoiding unnecessary disputes, we respectfully disagree about the likely 

impact of the Proposed Amendment. The Proposed Amendment is more likely to cause more 

discovery disputes than the current rule, resulting in increased costs for all parties. 

It has been settled for some time that Rule 30(b)(6) gives the authority and responsibility 

for selecting witnesses to testify as to noticed topics solely to the organization being deposed. 

See e.g., Resolution Tr. Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993). Rule 30(b)(6) "does 

not permit the party issuing the notice to select who will testify on the organization's behalf." 

Progress Bulk Carriers v. American S.S. Owners Mut. Protection and Indem. Ass 'n, 939 

F.Supp.2d 422, 430 (S.D.N.Y. 2013). This responsibility for selecting deponents is not merely a 

matter of custom -- the purpose of Rule 30(b)(6) is to allow a party opposing an organization in 

litigation to determine the knowledge and position of the organization rather than the knowledge 

of particular individuals. The responding party has the responsibility to prepare witnesses and 

bears the consequences if witnesses are not prepared to address designated topics. See e.g., QBE 

Ins. Corp. v. Jorda Enters., 227 F.R.D. 676, 700 (S.D. Fla. 2012) (holding that an company was 

barred from introducing testimony at trial on any matters for which the organization's 30(b)(6) 

designee was unable to testify). 

By removing the clarity from well-settled law that corporations and other entities have 

the sole right to designate individuals to testify in 30(b)(6) depositions, the Proposed 

Amendment would expand collateral litigation and increase the already high costs of discovery, 

while placing a new burden on the courts. The Proposed Amendment would make the 

designation of 30(b)(6) deponents a matter that is up for negotiation in the lengthy discovery 

process. The draft Committee Note states that the exchanges between the parties will facilitate 

"identifying the right person to testify," implying that this decision no longer rests squarely with 

the noticed organization. This change will almost certainly invite gamesmanship and abuse of 

the discovery process as a tool to challenge the designation of witnesses. 

If a noticing party has a particular need to hear from a certain employee or representative 

of an organization, they are always able to notice the individual in his or her individual capacity, 

even without the Proposed Amendment. 

We respectfully ask the Committee to reconsider the Proposed Amendment because of its 

potential to add more disputes in the discovery process, not less. Changes to the rules should 

have the promise of reducing time and expenses, not add to them. To be sure, changes in the 

framework of corporate discovery should lessen the burden on the courts, not increase them. We 

recommend that the Proposed Amendment be rejected. 
Hon. John D. Bates, Senior Judge 

November 29, 2018 

Page 3 

Limitations On The Scope And Nurnber Of 

Deposition Topics Should Be Included 

We would value the Committee's efforts regarding the inclusion of a meet and confer 

requirement related to the scope and number of deposition topics. Ultimately, the more 

conferencing on these issues, the more can be resolved without judicial intervention. However, a 

clearer mechanism in which to limit discovery disputes related to Rule 30(b)(6) would be to 

enact a constructive limit on deposition topics entirely. 

Pursuant to Rule 30(b)(6), corporate representatives are to be "adequately preparer to 

testify regarding the topics of the notice. However, all too often, the notice is voluminous, vague 

or duplicative of prior depositions. To ensure that 30(b)(6) notices are appropriately limited in 

scope to conform with the proportionality requirements outlined in Rule 26(b)(1), topics should 

be limited to no more than eight topics. Additionally, unless compelling reasons can be stated 

before notices are propounded, the deposition should be limited to one day, and not to exceed 

seven hours. A limitation of topics and duration is consistent with Rules 

30 and 33 which set out similar limiting parameters for interrogatories and depositions. 

Rule 30(b)(6) depositions should not be utilized as a fishing expedition or as a tactic for 

gamesmanship. To that end, the topics should be consistent with the nature of discovery that has 

already occurred in the case and should not seek to interject new areas of inquiry that were 

previously not discovered through less burdensome means. The use of corporate deponents to 

develop new theories is outside of the proper scope and intent of Rule 30(b)(6). Blackwell v. City 

& Cty. of SF., No. C-07-4629 SBA (EMC), 2010 U.S. Dist. LEXIS 75453, at *6 (N.D. Cal. June 

25, 2010) (denying a second 30(b)(6) deposition where the plaintiff sought to pursue a new 

theory); Franklin v. Smith, No. 15-12995, 2016 U.S. Dist. LEXIS 163029, at *3-4 (E.D. Mich. 

July 7, 2016) (denying defendant an additional deposition to inquire on new theories). Although 

understandably difficult to balance, a Rule 30(b)(6) notice should also not duplicate depositions 

of those with personal knowledge on the subject. Often deposition requests for corporate or 

organization employees with personal knowledge of the subject matter are served in conjunction 

with a Rule 30(b)(6) deposition request. Such a practice runs afoul with the proportionality 

factors expressed in the Advisory Committee Notes. 

A preemptive limitation on topics and duration of a 30(b)(6) notice also avoids the pitfall 

of a lack of proper remedy by which to address a verbose, voluminous, or overbroad notice. The 

current remedies for addressing a poorly constructed notice require filing a Motion for Protective 

Order or Motion to Quash, neither of which are completely appropriate methods to resolve such 

a dispute. As suggested by the Committee, the inclusion of a specific reference to Rule 30(b)(6) 

about the number of deposition topics at the Rule 26(f) conference would be advantageous. 

Should the litigants determine that more than eight topics and seven hours of testimony is 

necessary due to the complexity of the case, such a concern can be raised early on to put the 

Court on notice of the issue. 
Hon. John D. Bates, Senior Judge 

November 29, 2018 

Page 4 

Similarly, the Committee should give additional consideration to an amendment to the 

rule requiring that the scope of the 30(b)(6) notice only relate to information that is known or 

within the company's possession, custody, or control. A 30(b)(6) deposition should not be used 

to obtain information from non-party subsidiaries, parent companies or foreign entities outside of 

the subpoena power of the court. 

An Objection Procedure Should Be Established 

One of the areas in which Rule 30(b)(6) could be strengthened is the method by which a 

responding party can raise objections to topics contained within the notice. A clear and orderly 

objection process would greatly assist litigants. In the past, our firm has reached agreements 

with opposing counsel regarding the objection process and included those agreements in a joint 

case management order or other similar filing at the outset of the case. Often, judges have 

appreciated these processes and found them beneficial in narrowing or even eliminating 

discovery disputes. We have typically reached an agreement that the 30(b)(6) deposition will 

proceed subject to the objections. Should a dispute arise during or after the deposition, either 

party may seek a ruling on all or some of the objections related to information the party taking 

the deposition contends were not adequately addressed, or are needed to advance their claims or 

defenses. Reservation of costs to the disadvantaged party can also be included. 

Discovery About Preparation Of The Witness Should Be Delineated As Privileged 

Finally, an arnendment limiting discovery into deponent preparation would clarify the 

protections of work product and attorney client privileges. Currently, courts are split on whether 

documents that are used to prepare a corporate designee for his or her 30(b)(6) deposition are 

protected as work product. This inconsistency presents recurring problems for corporations with 

litigation pending across the country in multiple districts, particularly in the context of pattern 

litigation. If preparation documents are not privileged in one federal district and must be 

produced, this rnay waive the protected status the documents would have received in other 

jurisdictions that would have otherwise protected them as work product. The selection and 

compilation of documents used to prepare a witness reflect the attorney's legal theories, 

strategies, and analysis. 

The Seventh Circuit has reasoned that "the purpose of the work-product doctrine is to 

establish a zone of privacy in which lawyers can analyze and prepare their client's case free from 

scrutiny or interference by an adversary." Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006). 

Thus, the required disclosure of the specific compilation of documents selected to prepare the 

witness "would implicitly reveal the thought process of the attorney that selected the 

documents." In re Yasmin & Yaz (Drospirenone) Mktg., Sales & Relevant Prods. Liab. Litig., 

2011 U.S. Dist. LEXIS 69711, at *5 (S.D. Ill. June 29, 2011). 
Hon. John D. Bates, Senior Judge 

November 29, 2018 

Page 5 

Conclusion 

Our firm strongly supports and applauds the Subcommittee's efforts to examine Rule 

30(b)(6) and to develop potential amendments. We thank the Committee in advance for its 

consideration of the comments submitted. 

Sincerely, 

McDONALD TOOLE WI GINS, P. 

1 

Francis M. McDonald, J . 

FMM/WI 
TAB 12 

TESTIMONY OF 

JENNIFER I. KLAR

RELMAN, DANE & CONFAX PLLC
January 24, 2019

Via Email

Advisory Committee on Civil Rules

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Room 7-240

Washington, DC 20544

RulesCommittee_Secretary@ao.uscourts.gov

Dear Members of the Civil Rules Advisory Committee:

I appreciate the opportunity to testify before the Committee on February 8, 2019. In order to 

facilitate my live testimony with the Committee, I provide the written testimony below. As 

recommended, I have reviewed the entirety of the transcript of the January 4, 2019 Public 

Hearing in Phoenix, Arizona.

In my firm’s civil rights litigation practice, Federal Rule of Civil Procedure 30(b)(6) is an 

effective and efficient tool. I submit these comments both (1) in support of the addition of the 

recommended meet and confer requirement and (2) in support of the rejection of the myriad 

recommendations to sharply limit this effective tool.

I am a partner at Relman, Dane, and Colfax, PLLC, a Washington D.C.-based public interest law 

firm that litigates civil rights cases on behalf of plaintiffs in the areas of housing, lending, 

employment, and public accommodations. We represent individual and organizational plaintiffs 

and bring cases ranging from small single-plaintiff cases to nationwide class actions. The firm 

has twenty-two lawyers and litigates civil rights cases in federal courts across the country. I 

have been practicing law for sixteen years. In my practice, I take a Rule 30(b)(6) deposition in 

almost every case. 

Rule 30(b)(6) Depositions are Efficient and Effective

In my practice, the 30(b)(6) deposition is the discovery tool that most supports Rule 1’s goal of a 

“just, speedy, and inexpensive determination” of the action. 

In our cases, 30(b)(6) depositions support the goal of deciding cases on the merits by allowing 

access to information directly from the defendant with the ability to explore that testimony in a 
2

meaningful way. The back and forth of live testimony questions generates clear answers that 

allow focused and streamlined discovery. 

The availability of a robust 30(b)(6) deposition reduces the overall number of depositions in my 

cases. Often, we do not know what individual has knowledge on the topics in the 30(b)(6) 

notice. Rule 30(b)(6) allows us to take a single deposition and receive the position of the 

defendant, rather than having to notice a series of depositions in order to determine which of 

many witnesses has the information sought. The requirement of education of a 30(b)(6) witness 

means that the Rules ensure we get the information sought without a series of unproductive 

depositions.

30(b)(6) depositions also streamline written discovery. A brief question and answer exchange in 

a 30(b)(6) deposition can replace piecing together the same information through countless 

documents that need to be requested, located, produced, and reviewed. In addition, I often notice 

a topic on a defendant’s electronic and paper filing systems. Understanding what documents 

exist and how they are stored streamlines discovery because I can request what exists and is 

accessible and do not have to request an overly broad set of documents due to a lack of such 

knowledge. The ability to ask clarifying and follow-up questions on the position of the 

corporation itself is invaluable. Without the ability to ask robust questions of a 30(b)(6) 

deponent, we would need to not only take more depositions and request more documents, but 

also to serve more interrogatories. The cabined wording of interrogatory responses often does 

not provide the information needed to ascertain a defendant’s position and the discovery needed 

to challenge it. 

My bottom line is that Rule 30(b)(6) works. As was repeatedly noted in the January 4, 2019 

Public Hearing in Phoenix, Arizona, courts do not hear many disputes on 30(b)(6) issues. This 

reflects my experience. Certainly, issues arise in 30(b)(6) deposition practice, but I am generally 

able to resolve those with opposing counsel in a collegial and creative way. We take breaks for 

witnesses to be educated, allow questions that could not be answered at the deposition to be 

supplemented with declarations, schedule topics at different times, and so on. As plaintiff’s 

counsel, we simply want the information sought, and we work with defense counsel to try to get 

clear and complete answers. Should there be a breakdown, the existing tools of motions for 

protective orders or to compel (and the background concept of proportionality) are already 

available.

While I comment specifically on some of the suggestions to sharply limit 30(b)(6) depositions 

below, I ask the Committee generally to preserve Rule 30(b)(6) and not to chip away at this 

efficient and effective tool.

We Welcome the Meet and Confer Requirement

The proposed meet and confer requirement simply codifies what we already do, and what we 

understand most good practitioners to do.
3

In almost every case, after serving a 30(b)(6) notice, I have a discussion with opposing counsel 

regarding the meaning of 30(b)(6) topics and the amount of time needed for the defendant to 

prepare and provide an educated witness. Generally, we discuss length of time before the 

deposition, dates, number of witnesses, the group of topics on which a witness will testify (to 

allow grouping of topics), and the relationship between the individual capacity deposition of a 

30(b)(6) witness and the 30(b)(6) deposition (e.g. coordinating dates). This open communication 

allows the depositions to be conducted effectively. Through these communications, I have at 

times clarified topics, edited topics, removed topics, and agreed to take different topics on 

different days.

In my experience, more communication between counsel, especially by phone instead of by 

letter, works to streamline discovery and avoid discovery disputes. While I have had the rare 

opposing counsel who attempted to abuse a meet and confer requirement (making himself 

unreasonably unavailable to confer and then indicating that we could not proceed because we 

had not met and conferred), I do not think such outliers justify not including a meet and confer 

rule.

The Committee Should Reject Attempts to Limit Rule 30(b)(6)

At the January 4, 2019 Public Hearing in Phoenix, Arizona, the sentiment was raised by 

attorneys who frequently defend corporations in 30(b)(6) depositions that “if it’s not broken, 

don’t fix it” or that the proposed changes are “a solution in search of a problem.” As noted 

above, I agree that Rule 30(b)(6) works. But, at the same time, suggested changes that will 

dramatically limit the effectiveness of Rule 30(b)(6) depositions continue to be pressed by 

counsel who defend corporations.

Corporations should not be able to indefinitely delay a 30(b)(6) deposition

The recommendation that corporations should be able to indefinitely delay a 30(b)(6) deposition 

by adding a requirement that all objections be resolved before the deposition is unnecessary, 

unworkable, and unreasonable.

First, the recommendation is unnecessary because if a 30(b)(6) notice is truly objectionable, the 

corporation can simply move for a protective order under the current Rules. 

Second, the recommendation is unworkable because it means that discovery will essentially be 

stayed pending a court resolving all objections. This will flood the courts with discovery 

disputes and, given the courts’ busy dockets, delay discovery. 30(b)(6) depositions are often a 

building block of discovery that must happen before other discovery can proceed because they 

allow counsel to discover foundational information. Delaying a 30(b)(6) deposition will thus 

predictably elongate discovery. What’s more, this invites gamesmanship. Corporations will 

know that the deposition and the whole case will be delayed by simply objecting and thus halting 

the 30(b)(6) deposition. 
4

Third, the recommendation is unreasonable because it elevates the rights of a corporate entity 

over the rights of any other deponent. The types of objections that can justify an instruction not 

to answer at a deposition are sharply limited, however this suggestion allows an entire corporate 

deposition to be stopped by any objection to the notice.

Setting a numerical limit on topics will reduce the clarity of notices

Where there are no numerical limits, as in the case for written document requests and 30(b)(6) 

deposition notice topics, there is every incentive to be precise, specific, and clear: it results in 

receiving more of the documents and information actually sought while avoiding discovery 

disputes. Setting a numerical limit on 30(b)(6) topics will increase disputes and attendant 

discovery litigation in a few ways. Topics will become more general, resulting in disputes over 

what is included in the topic and whether the witness was sufficiently educated. As with 

interrogatories, disputes will arise as to whether a topic should be counted as one or multiple 

topics and whether the party noticing the deposition has exceeded the numerical limits. 

The outlier examples of abusive 30(b)(6) notices do not justify reducing the clarity of most 

notices and increasing attendant litigation. Corporate deponents can move for a protective order 

under the current Rules, and can certainly argue that any particularly offensive notice is 

inappropriate under the proportionality rule. 

A deadline for noticing 30(b)(6) depositions is unnecessary

The suggestion of a timing restriction on noticing a 30(b)(6) deposition, such that one cannot be 

taken at the end of discovery, will be inefficient in practice. 

In reality, individual depositions often continue through the end of discovery. This happens 

because of the time it takes to complete written discovery and receive documents, and 

coordination of counsel and witness schedules. As individual depositions are completed, it 

sometimes becomes clear that a focused 30(b)(6) deposition on a few discrete topics is 

necessary. This can occur for a few reasons, such as individual deponents raising new issues or 

not having anticipated knowledge on behalf of the party. In those instances, which are common, 

it is efficient and not burdensome to allow a 30(b)(6) deposition at the end of the discovery 

period. Restricting the timing of 30(b)(6) depositions would have the effect of either effectively 

shortening the discovery period or forcing broader 30(b)(6) depositions earlier instead of a 

streamlined later deposition. In addition, written discovery already cannot be served at the end

of discovery and depositions have remained flexible throughout the end of discovery; this 

balance works. Instead of a one-size-fits all requirement, I suggest that the timing of the 30(b)(6) 

be discussed by counsel in the meet and confer, as is already done in my practice and by most 

counsel.

There should be no bar on questions regarding a party’s contentions

In order to effectively litigate, a party has to be entitled to understand the other side’s 

contentions—whether they be claims or defenses—in a real way. These are not legal questions, 
5

but an understanding of the factual support for positions that will be taken at summary judgment 

and trial (e.g. “what are all the reasons you terminated the plaintiff,” “what are all the factors 

considered in rejecting the plaintiff”). The suggestion that a corporate deponent cannot be asked 

contention questions is a radical change that would make litigating not only less efficient but 

more of a guessing game. It would limit a party’s understanding of its opponent’s contentions to 

interrogatory responses, which – as I mentioned – are highly cabined and do not allow for 

clarifying or follow-up questions. In my practice, this would expand the necessity of motions to 

compel more robust interrogatory responses, and the use of party and court time on such 

discovery litigation.

Critically, such a rule would create an unwarranted and unfair imbalance between corporate and 

non-corporate litigants. A corporate party would be shielded from questions about that party’s 

contentions, while those very questions could be posed to individual and non-corporate parties in 

the same case. Perversely, such a change would shield those deponents in the best position to 

provide testimony on the party’s legal position (a deponent chosen by the party to testify on 

behalf of the party on a specific topic) while continuing to allow such questions of individual 

plaintiffs, who are often least qualified to answer such questions.

Finally, the suggested change will predictably create repeat discovery disputes regarding what 

questions are allowed and what questions count as improper contention questions. This will 

hamper and lengthen depositions and require increased court intervention, either during 

depositions or during suspended and re-started depositions. This is an inefficient result that will 

waste court, party, and deponent resources and delay discovery.

Requiring provision of exhibits in advance does not work

Requiring the provision of exhibits in advance will require unnecessary work by both parties and 

the deponent. Given the press of business and incentive to preserve their rights, the deposing 

party will predictably over-designate exhibits to allow flexibility later in deciding which exhibits 

to use. Consider the length of “will use” and “may use” exhibit lists in pretrial submissions 

versus the number of exhibits actually entered into evidence. Then, the deponent’s counsel will 

have to review the over-designated exhibits and prepare the deponent on the exhibits. Far from

streamlining matters, such an exercise would make the 30(b)(6) process both more burdensome 

and more inefficient. 

In practice, if a witness needs to be educated on an issue or an exhibit, the deponent can take a 

break to obtain that education. This happens frequently in my practice without incident. A Rule 

30(b)(6) deposition is on behalf of the corporation, and such breaks should be anticipated since 

every question will not be known in advance.

A corporation already has more information about the nature of the questioning than any other 

witness because of the provision of the 30(b)(6) notice, which details the topics of examination. 

Requiring the provision of exhibits is therefore unnecessary to provide that information.
6

* * *

I sincerely appreciate the opportunity to submit comments and look forward to speaking with the 

Committee and answering any questions.

Regards,

/s/Jennifer I. Klar

Jennifer I. Klar
TAB 13 

TESTIMONY OF 

MARK R. KOSIERADZKI

KOSIERADZKI SMITH LAW FIRM LLC
January 24, 2019

Via Email

RulesCommittee_Secretary@ao.uscourts.gov

Rules Committee Secretary

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E, Room 7-240

Washington, D.C. 20544

RE: Anticipated Testimony Regarding Proposed Amendment to FRCP 30(b)(6)

Dear Committee Secretary and Members,

I am Mark Kosieradzki. I represent persons throughout the United States in a variety of actions, 

primarily in the area of Elder Abuse and Nursing Home negligence. In the Nursing Home/Elder 

abuse practice, we are often faced with questions involving systemic institutional neglect. Those 

cases involve collective institutional decisions about how the facility formulates, adopts, and 

enforces adequate rules and policies necessary for quality patient care. The cases involve 

institutional decisions about the competence and sufficiency of the care staff, the supervision over 

the delivery of care, and whether the facility is diverting Medicare/Medicaid money from patient 

care. Often the management of the Nursing Home is not the license holder. Rather, the entities in 

actual control of operational decisions are buried in layers of holding companies and subsidiary 

corporations.

As a member of the bar for almost four decades, it has been my experience that Rule 30(b)(6) is 

the single most effective tool for efficiently discovering information held by institutions. 

Notwithstanding the prohibition of boilerplate objections and answers “subject to and without 

waiving objections”, such responses continue to be ubiquitous.

By using carefully crafted 30(b)(6) depositions, we are able to narrow which facts are actually in 

dispute and identify the positions of the parties early in the litigation. This in turn eliminates 

unnecessary depositions. In addition, custodial 30(b)(6) depositions enable us to learn the 

description, custody, location, and most economical search methods available for any documents 

or ESI.

For example, after a witness disclosed an e-mail that was dispositive to a deposition question, the 

institution claimed it would cost more than $1Million to search the backup drives to locate that email. By using a 30(b)(6) deposition, we were able to learn that the institution also had a previously 

undisclosed archive server that stored all e-mails and could be searched for a nominal cost.
Advisory Committee on Civil Rules Page 2

January 25, 2019

If a motion is necessary to compel disclosure of information, it is done on a well vetted record 

rather than self-serving affidavits. The custodial 30(b)(6) deposition has eliminated countless 

hours of attorney time, delay in the advancement of cases, and unnecessary motions.

Rule 30(b)(6) works. When properly enforced, the Rule eliminates the bandying as intended. A 

recurrent problem that I find is that the responding entities do not properly prepare 30(b)(6) 

designees to respond to matters that are clearly identified in the notice. It is in those instances, that 

I am required to turn to the court to enforce the Rule and advance the litigation in an efficient and 

professional fashion. Conversely, I am often able to get to the heart of the matter with a few 

depositions when dealing with attorneys who are knowledgeable in the law surrounding 30(b)(6). 

In other words, the problem is not with the Rule or the law interpreting it; rather, the problem 

results from the attorneys’ lack of knowledge or disregard of the Rule’s procedure. The proposed 

Rule changes will not correct this problem.

I would like to share my thoughts on two issues in the proposed Rule change. 

First, the requirement that the serving party and the responding organization must confer in good 

faith about the number and description of the matters for examination will result in unwarranted 

cost and delay. Attorneys working together professionally is always a good thing. The Rules 

already provide for a meet and confer process if any part of the notice is objectional. I am 

concerned that the proposal’s requirement that all notices be subject to a meet and confer process 

regardless of any problems will increase discovery disputes, not lessen them. It creates an 

unwarranted presumption that the notice’s requests are defective. The proposed Rule change will 

incentivize the responding entity and its attorney to treat valid matters for examination in the 

30(b)(6) notice as a transactional negotiation. Everything will be subjected to compromise in the 

name of “good faith” negotiations. The proposed Rule change will produce a whole new level of 

delay, obstruction, and cost as a result of “fixing” a discovery process that is not broken.

I am concerned about any limitation of the number and description of the matters for examination. 

Each case is different in the number of issues that need to be resolved. Unfortunately, we have 

learned that requests for information through written discovery result in limitations, boilerplate 

objections, and other sorts of evasion. I certainly understand that the rules prohibit such mischief. 

However, I also recognize that a properly vetted record is necessary to enable the Courts to fairly 

resolve discovery disputes. Over the years I have found that if I create a clear record through the 

custodial 30(b)(6) depositions, motions are seldom necessary because the factual record mitigates 

the improper gamesmanship. Therefore, I urge the Committee not to invite more disputes through

by requiring a meet and confer process when there are no legitimate disputes to resolve. Good 

lawyers already do it with the existing Rules. 
Advisory Committee on Civil Rules Page 3

January 25, 2019

With regard to the second issue with the proposed Rule change, I support a requirement that the 

responding institution disclose the identity of each person designated in response to the notice. 

Knowing when an institution will produce multiple designees in response to the 30(b)(6) notice 

improves the organization of the questioning. The most efficient depositions are those that are well 

organized. Knowing who will testify about which topics enables the examiner to prepare and 

organize the documents and categories of questions into an efficient outline for each designee. 

Therefore, I encourage the Committee to adopt the disclosure of the designees with sufficient time 

to enable the examiner to properly prepare for each designee. 

Thank you for the opportunity to share my thoughts with this Committee.

Very truly yours,

Mark R. Kosieradzki

Attorney at Law

Email: mark@koslawfirm.com

Phone: (763) 746-7800

MRK/nn
TAB 14 

TESTIMONY OF 

CHAD M. LIEBERMAN

BROSSEAU BARTLETT LIEBERMAN LLC
____________________________________________________________________________________________________________

6455 South Yosemite Street · Suite 750 · Greenwood Village · Colorado · 80111 · (303) 812-1200 · www.bbl.law

CHAD M. LIEBERMAN

chad@bbl.law

303-515-2484

January 23, 2019

Sent via email to: RulesCommittee_Secretary@ao.uscourts.gov

Rules Committee Secretary

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

Re: Written testimony of Chad Lieberman regarding the proposed amendment 

to Federal Rule of Civil Procedure 30(b)(6)

Dear Rules Committee Secretary:

I respectfully submit this testimony regarding the proposed amendment to Federal Rule 

of Civil Procedure 30(b)(6). I have reviewed the transcript from the January 4, 2019, public 

hearing and a plethora of written submissions. I have been an attorney for the last 13 years. My 

practice has always involved litigation and trial work on behalf of both plaintiffs and defendants. 

Currently my practice is primarily defense-oriented, and while my caseload spans the country, 

my client-base extends to Japan, Canada and Europe. Throughout my career I have presented 

and deposed a variety of 30(b)(6) witnesses. Thank you for the opportunity to present my 

thoughts and answer your questions. 

1. Conferral in General

I support the inclusion of a mandatory conferral within the proposed amendment. In my 

experience, lawyers regularly confer about the scope and timing of a 30(b)(6) witness. The 

proposed comments from the committee regarding the conferral being iterative is merely a 

reflection of reality. All of my prior conferrals have been iterative in nature and, more often than

not, resolve the parties’ disputes. 

2. Conferral Regarding the Scope of the 30(b)(6) Notice

I consider the “scope” of a 30(b)(6) notice to include both the quantitative and qualitative 

nature of a deposition notice. The proposed amendment requires a conferral, which is a good 

step, but not far enough. A simple presumptive limit on the number of topics would address 

most issues related to scope – much like the presumptive limits that currently exist for written 

discovery requests. Rule 30(b)(6) already requires that the topics be identified with “reasonable 

particularity” and thus a presumptive limit of 15 topics would require the requesting party to 

narrow the scope of the deposition to the issues which are truly relevant. Overly-broad requests 

will always occur, but a limitation will significantly focus the parties, narrow the issues, lessen 

expenses, streamline the disagreements and facilitate faster resolutions. The rule could permit 

the presumptive limit be modified via stipulation of the parties or upon order of court – just as 

permitted under Rule 33. 
_______________________

January 23, 2019

Page 2

____________________________________________________________________________________________________________

6455 South Yosemite Street · Suite 750 · Greenwood Village · Colorado · 80111 · (303) 812-1200 · www.bbl.law

3. Procedure for Notice, Objection and Resolution

I believe the issues associated with 30(b)(6) depositions can be separated into two 

categories: (a) the scope of the deposition; and (b) the preparation of the witness. Respectfully, 

the proposed amendment does not address or remedy either of these issues. 

a. Scope of the Deposition

Conferral on the scope of a 30(b)(6) deposition does not always resolve the parties’

dispute. There currently exists no uniform framework for the notice, objection and resolution of 

issues related to the proposed scope of a 30(b)(6) deposition. Lawyers and clients crave a 

framework in which to operate and an outline for that framework can be found within Rule 45. 

It is perplexing that the notice and objection procedures of Rule 45 are applicable to a 30(b)(6) 

deposition noticed for a non-party but not for a party. I often hear that judges despise discovery

disputes – but so do lawyers. Much of the frustration can be avoided by creating a simple 

procedure to handle the timing, objection and resolution of issues pertaining to the proposed

scope of a 30(b)(6) deposition.

Rule 37 does not adequately address this issue for two reasons. First, the language of 

Rule 37 is principally tailored to issues concerning written discovery responses and disclosure 

requirements. Nothing within Rule 37 directly addresses disputes concerning the scope of a 

30(b)(6) deposition. Second, Rule 37 principally addresses past discovery violations. A dispute 

about the scope of a 30(b)(6) notice concerns the nature of how a deposition may proceed in the 

future. A typical motion for a protective order under Rule 37 is oftentimes impractical and 

inefficient. With the lack of a unified procedure, many courts have adopted a variety of methods 

to address these issues. The lack of uniformity results in a host of incongruent and inconsistent 

case law being reported across the country.

b. Preparation of the Witness

This issue conceptually arises post-deposition. I say “conceptually” because I have never 

encountered an issue regarding the adequacy of a 30(b)(6) witness’s preparation. I do not 

believe any amendment can eliminate bad lawyering or a rogue witness. The rule already

requires the responding party to produce a witness with the ability to testify “about information 

known or reasonably available to the organization.” A party’s failure to do so is subjective and 

best left for the courts to analyze. Logistically, such an issue would amount to a past discovery 

abuse and thus fall more squarely under Rule 37.

4. Identity of the Witness

The identity of a 30(b)(6) witness has never been an issue in my career. Sometimes the 

name is disclosed and sometimes not. I find the identity of the corporate witness to be irrelevant

because the deponent is the company, not the human speaking for the company. Moreover, I fail 

to see how disclosure of the witness’s identity does anything to facilitate the process or resolve 

any pre-deposition disputes. 
_______________________

January 23, 2019

Page 3

____________________________________________________________________________________________________________

6455 South Yosemite Street · Suite 750 · Greenwood Village · Colorado · 80111 · (303) 812-1200 · www.bbl.law

Of concern to me, and many others who have testified, is the language of the proposed

amendment. A mandatory “conferral” implies a give-and-take and thus has given rise to the

concern that the proposed language is vague and implicitly chips away at the longstanding right 

of the responding party to choose unilaterally its witness. Likewise, the required “identity” of 

the witness is undefined and invites disputes and motion practice over what needs to be disclosed 

at the proposed conferral stage. 

I echo the testimony of others regarding the unnecessary nature of the proposed 

amendment. Respectfully, the proposed amendment does not solve a problem, but rather creates 

a nebulous conferral requirement likely to result in additional disputes, protracted litigation and 

increased costs. 

Sincerely,

BROSSEAU BARTLETT LIEBERMAN, LLC

Chad M. Lieberman
TAB 15 

TESTIMONY OF 

ALTOM M. MAGLIO

MAGLIO CHRISTOPHER & TOALE


TAB 16 

COMMENTS AND TESTIMONY OF 

AMERICAN ASSOCIATION FOR JUSTICE 











Exhibit to AAJ Comment on Rule 30(b)(6)

AAJ’s proposed language reads as follows:1

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a 

party may name as the deponent a public or private corporation, a partnership, an 

association, a governmental agency, or other entity and must describe with 

reasonable particularity the matters for examination. The named organization must 

then designate one or more officers, directors, or managing agents, or designate 

other persons who consent to testify on its behalf; and it may set out the matters on 

which each person designated will testify. Before or promptly after the notice or 

subpoena is served, and continuing as necessary, the The serving party and the 

organization must confer in good faith about the number and description of the 

matters for examination and the identity of each person the organization will 

designate to testify on each matter before or promptly after the notice or subpoena 

is served, and continue conferring as necessary. A subpoena must advise a nonparty 

organization of its duty to make this designation and to confer with the serving 

party. The persons designated must testify about information known or reasonably 

available to the organization. This paragraph (6) does not preclude a deposition by 

any other procedure allowed by these rules.

Draft Committee Note

Rule 30(b)(6) is amended to respond to problems that have emerged in some cases. 

Particular concerns have included overlong or ambiguously worded lists of matters 

for examination and inadequately prepared witnesses. This amendment directs the 

serving party and the named organization to confer before or promptly after the 

notice or subpoena is served, and to continue conferring as necessary, regarding the 

number and description of matters for examination and the identity of persons who 

will testify on each matter before or promptly after the notice is served, and 

continue conferring as necessary. At the same time, it may be productive to discuss 

other matters, such as having the serving party identify in advance of the deposition 

the documents it intends to use during the deposition, thereby facilitating deposition 

preparation. The amendment also requires that a subpoena notify a nonparty 

organization of its duty to confer and to designate one or more witnesses to testify. 

It facilitates collaborative efforts to achieve the proportionality goals of the 2015 

amendments to Rules 1 and 26(b)(1).

Candid exchanges about discovery goals and organizational information structure 

may reduce the difficulty of identifying the right person to testify and the materials 

needed to prepare that person. Discussion of the number and description of topics 

may avoid unnecessary burdens. Although the named organization ultimately has

the right to select its designee, discussion about the identity of persons to be 

designated to testify may avoid later disputes. It may be productive also to discuss 

“process” issues, such as the timing and location of the deposition.

 1 Please note that language added is in red while language deleted is stricken through.
The amended rule directs that the parties confer either before or promptly after the 

notice or subpoena is served. While there is no prohibition on conferring before the 

notice or subpoena is served, there is no requirement to do so. If they the parties 

begin to confer before service, the discussion may be more productive if the serving 

party provides a draft of the proposed list of matters for examination, which may 

then be refined as the parties confer. The rule recognizes that the process of 

conferring will often be iterative, and that a single conference may not suffice. For 

example, the organization may be in a position to discuss the identity of the person 

or persons to testify only after the matters for examination have been delineated.

The obligation is to confer in good faith, consistent with Rule 1, and the amendment 

does not require the parties to reach agreement. The duty to confer may be a single 

conference or a series of discussions. The process of conferring will often be 

iterative continues if needed to fulfill the requirement of good faith. But the 

conference process must be completed a reasonable time before the deposition is 

scheduled to occur and the duty to confer is not an excuse to slow or stall the case.

When the need for a Rule 30(b)(6) deposition is known early in the case, the Rule 

26(f) conference may provide an occasion for beginning discussion of these topics. 

In appropriate cases, it may also be helpful to include reference to Rule 30(b)(6) 

depositions in the discovery plan submitted to the court under Rule 26(f)(3) and in 

the matters considered at a pretrial conference under Rule 16.



TAB 17 

TESTIMONY AND COMMENT OF 

MICHAEL NEFF

NEFF LAW



Document Metadata:USC-RULES-CV-2018-0003-0135

Document Details

Docket ID: USC-RULES-CV-2018-0003

Docket Title: Proposed Amendments to the Federal Rules of Civil Procedure

Document File:

Docket Phase: Proposed Rule

Phase Sequence: 1

RIN: Not Assigned

Original Document ID: USC-RULES-CV-2018-0003-DRAFT-0144

Current Document ID: USC-RULES-CV-2018-0003-0135

Title: Comment from Michael Neff, NA

Number of Attachments: 0

Document Type: PUBLIC SUBMISSIONS

Comment on Document ID: USC-RULES-CV-2018-0003-0001

Comment on Document Title: Preliminary Draft of Proposed Amendments to the Federal Rules

of Civil Procedure

Status: Posted

Received Date: 12/03/2018

Date Posted: 12/04/2018

Posting Restriction: No restrictions

Submission Type: Web

Number of Duplicate

Submissions:

1

Document Optional Details

Status Set Date: 12/04/2018

Current Assignee: NA

Status Set By: Skillman, Frances (USC)

Legacy ID:

Additional Field 1:

Tracking Number: 1k2-96wo-uplw

Total Page Count

Including Attachments:

1

Submitter Info
Comment: Changes are not needed to FRCP 30(b)(6).

First Name: Michael

Last Name: Neff

Mailing Address: 3455 Peachtree Road, Suite 509

Mailing Address 2: Suite 1770

City: Atlanta

Country: United States

State or Province: Georgia

ZIP/Postal Code: 30326

Email Address: mneff@mlnlaw.com

Phone Number: 404-531-9700

Fax Number:

Organization Name: NA

Submitter's

Representative:

Government Agency Type:

Government Agency:

Cover Page:
TAB 18 

COMMENT OF 

MICHAEL R. NELSON AND THOMAS M. BYRNE

EVERSHEDS SUTHERLAND (US) LLP
Eversheds Sutherland (US) LLP 

999 Peachtree St., N.E., Suite 2300 

Atlanta, GA 30309-3996 

T: +1 404.853.8000 

F: +1 404.853.8806 

Eversheds Sutherland (US) LLP is part of a global legal practice, operating through various separate and distinct legal entities, under 

Eversheds Sutherland. For a full description of the structure and a list of offices, please visit www.eversheds-sutherland.com. 

To: Advisory Committee on Civil Rules 

From: Michael R. Nelson and Thomas M. Byrne 

Date: January 18, 2019 

We write to offer comments to assist the Committee as it considers proposed 

amendments to Fed. R. Civ. P. 30(b)(6). As explained below, in view of our combined 

experience of more than 60 years in proceedings under the rule, we have grave 

concerns regarding the proposed amendment. 

First, the proposed amendment unfortunately does not address the primary 

shortcomings of the current rule but would introduce an entirely new set of 

difficulties in organizational depositions. Although the current rule requires 

“reasonable particularity” in describing the matters for examination, no other 

limitations are stated. No process is provided for asserting or resolving objections to 

the matters listed for examination. Consequently, the designation of hopelessly 

overbroad topics is commonplace. So too is the designation of purely legal 

conclusions or contentions. A lay witness should not have to advocate the 

organization’s cause under cross-examination by opposing counsel. This is unfair 

and unproductive, and the absence of guidelines on permissible matters for 

examination has hobbled the process with inevitable squabbling over whether a 

witness has adequately prepared or whether the witness’s answers concerning the 

organization’s legal contentions should bind the organization in subsequent phases 

of the litigation. Depositions of witnesses should be about facts – and only facts – 

relevant to claims or defenses. The proposal fails to address the aspects of 

implementation of the rule that are in the most dire need of attention. 

Second, rather than reducing the range of controversies concerning 

implementation of the rule, the proposal would spawn a new one of its own creation. 

Specifically, proposal would require advance notice by the organization of its 

designees for testimony and impose a “meet and confer” requirement concerning 

the designations themselves. No case law known to the undersigned supports this 

significant expansion of the rule’s obligations on organizations. Nor is it clear that 

current practice poses a particular problem in terms of administration of the rule. 

Would the proposal lead to less squabbling over the procedures? Almost certainly 

not; there will be now be another layer of potential disputes, with no substantive 
guidance provided by the rule. Greater efficiency? Not so; it will only prolong the 

proceedings under the rule and add to the process-cost of litigation. 

Under the current rule, an organization that fails to make adequate 

designations may face a motion before the court. And, if the witness is inadequately 

prepared on a legitimate subject, then ordinarily the organization must live with the 

answers, even if disadvantageous. An empirical case has not been made for 

involving an opposing party in the deponent’s heretofore independent decisions on 

designees for testimony. The proposal represents an abrupt break with the 

committee’s momentum toward streamlining civil discovery and should be 

withdrawn for further consideration or revised. 

Mike Nelson will appear to present testimony at the public hearing in 

Washington on February 8, 2019 and will gladly answer any questions. 

Thank you for considering our views. 

 

Contact information for commenters: 

Michael R. Nelson 

mikenelson@eversheds-sutherland.com

T: 212.389.5061 

Thomas M. Byrne 

tombyrne@eversheds-sutherland.com

T: 404.853.8026 
TAB 19 

COMMENT OF 

MARY T. NOVACHECK

BOWMAN AND BROOKE LLP
January 22, 2019 VIA Electronic Mail: Rule_Comments@ao.uscourts.gov 

Judicial Conference Advisory Committee on Civil Rules 

Re: REFORMING RULE 30(b)(6) 

Dear Advisory Committee: 

Bowman and Brooke LLP respectfully submits this Comment to the Advisory Committee on 

the Federal Rules of Civil Procedure (“the Committee”). 

Bowman and Brooke is a national law firm with 13 offices across the country, known for 

defending product manufacturers' mass torts and highest profile litigation nationwide. Our lawyers 

have tried more than 875 product liability lawsuits throughout 48 states, the U.S. Virgin Islands, 

Puerto Rico and several Canadian provinces. We have engaged in a countless number of 

depositions including depositions conducted under Rule 30(b)(6). Through these experiences, we 

have developed substantial experience with the burdens related to this rule. As a result, we 

provide the following comments on the Committee’s proposed changes to that Rule. 

We oppose the proposed amendment in its current form. We believe the proposed change 

requiring the named organization to meet and confer with requesting counsel as to the identity(ies) 

of the corporate representative testifying in response to the notice is problematic. A “prompt” 

meeting is not practical for the realities of litigation. 

I. Proposed Amendment to Rule 30(b)(6)

The Civil Rules Advisory Committee (“Advisory Committee”) proposes adding the language 

highlighted in red to Rule 30(b)(6): 

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a

party may name as the deponent a public or private corporation, a partnership, an 

association, a governmental agency, or other entity and must describe with reasonable 

particularity the matters for examination. The named organization must then designate 

one or more officers, directors, or managing agents, or designate other persons who 

consent to testify on its behalf, and it may set out the matters on which each person 

designated will testify. Before or promptly after the notice or subpoena is served, and 

continuing as necessary, the serving party and the organization must confer in good faith 

about the number and description of the matters for examination and the identity of each 

person the organization will designate to testify. A subpoena must advise a nonparty 

organization of its duty to make this designation and to confer with the serving party. The 

persons designated must testify about information known or reasonably available to the 

organization. This paragraph (6) does not preclude a deposition by any other procedure 

allowed by these rules. 
Judicial Conference Advisory Committee on Civil Rules 

January 22, 2019 

Page 2 

A proposed Committee Note would state: 

[a]lthough the named organization ultimately has the right to select its designees, 

discussion about the identity of persons to be designated to testify may avoid later 

disputes. 

II. Requiring responding parties to confer on the identity of the witnesses is 

contrary to well-settled law and will create confusion and burden, giving rise to 

new litigation issues for the courts to resolve 

We urge the Committee to remove the “identity of the witness” language from the proposed 

amendment. We understand from prior advisory committee meetings and the proposed 

“Committee Note” that the Committee does not intend the amendment to allow noticing parties to 

participate in the choice of the deponent. The only way to achieve the Committee’s intent is to 

strike that language from the proposed amendment. 

If that language remains, it will create a sea change in the law related to Rule 30(b)(6) 

depositions. Such a change would be extremely troublesome for organizations already burdened 

by a system that requires endless hours of preparation, broad and numerous topics, particularly 

in contentious MDL and mass tort cases. Even if this is not the committee’s intent, the fact that it 

is included in the amendment gives that impression, which will breed confusion about the 

committee’s intent, raising new issues courts will need to resolve. 

Case law is well-settled that the responding organization alone selects the testifying witness. 

Demanding that the parties confer on the identity of witnesses will give rise to claims that the new 

rule voids well-settled prior case law. It is not uncommon for requesting parties to prefer a different 

witness than the one designated. But this amendment is not needed to give them access to the 

individuals they wish – requesting parties are not restricted from deposing other corporate 

employees as fact witnesses. 

Bear in mind that the burden on the corporate designee under the current rule is significant. 

We have observed numerous instances where requesting parties use these depositions simply 

to increase burden, not to gain new information. Notices commonly contain 50 to 100 “topics” for 

examination. These depositions are often duplicative of others. Requesting parties often depose 

designated individual to testify consistently with prior depositions in related cases taken years 

ago. Complicating this further by mandating preparation as to why the designee is the person at 

the company best suited for the job may force an organization to produce a witness not well suited 

to the rigors of testifying on behalf of the organization. This would be unfair in high stakes litigation, 

and without a doubt, requesting parties would use the amended rule to increase pressure on 

organizations to extract settlements. 

The proposed Committee Note stating that “the choice of the designee is ultimately the choice 

of the organization” does not adequately protect prior law. The word “ultimately” indicates that the 

requesting party will now have some level of involvement in selecting the witness, and courts will 

read the new language to give them a role. The “identity of the witness” language must be 

removed from the proposed amendment altogether. 
Judicial Conference Advisory Committee on Civil Rules 

January 22, 2019 

Page 3 

III. Requiring a prompt meeting to confer on the designation of witnesses increases 

the burden on both parties. 

Under the amendment, at the meet and confer, the parties would be required to discuss the 

identity of the witness or witnesses designated to testify “promptly” after receipt of the notice. In 

reality, requesting parties often serve 30(b)(6) deposition notices months in advance of the 

eventual deposition. 

As time progresses in the litigation, corporations prepare their intended witnesses, but at times 

they change their initial selection due to a variety of circumstances, sometimes strategic and often 

not foreseeable at the time the notice is served. The noticing party would ask for an explanation 

when designations change. Requiring the organization to confer about the identity of the witness 

shortly after the notice is served threatens the confidentiality of later attorney work product and 

attorney-client privileged communications when those designations change. 

A “prompt” meet and confer is not well suited to the practical realities of these depositions. 

The current, clear case law enables corporations to make these decisions as needed without 

conferring with the opponent when the witnesses’ identities change. Requiring a meeting on the 

witness’ identity to occur “promptly” after service is simply not practical and increases the already 

heavy burden placed on the organization. 

************************* 

We urge the committee to reconsider its current draft of amendments to Rule 30(b)(6). 

These depositions involve hotly contested issues in product liability lawsuits. Do not reduce the 

responding organization’s power to select the person best suited to the role of its corporate 

representative. The proposed amendment would add to the already heavy burden on the 

organization and the employee selected to testify. It would not benefit the needs of the case and 

it would needlessly increase the cost of attorneys’ fees for work undertaken to comply with this 

new process. 

Thank you for considering Bowman and Brooke’s position on this important issue. 

Sincerely, 

BOWMAN AND BROOKE LLP 

Mary T. Novacheck 

Partner 
Judicial Conference Advisory Committee on Civil Rules

January 22, 2019

Page 4

Jenny Zavadil

Cki/14)(KGC\10

Partner

Michael R. Carey

Partner

Sandra Giannone Ezell

Partner

MN/vf

20260162v2
TAB 20 

COMMENT OF 

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION
1 

USC-RULES-CV-2018-0003

December 21, 2018 

To the Advisory Committee on Civil Rules 

Submitted electronically: https://www.regulations.gov/docket?D=USC-RULES-CV-2018-0003

COMMENTS ON PROPOSED AMENDMENTS 

TO RULE 30(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE 

The National Employment Lawyers Association (NELA) submits the following 

comments to the Advisory Committee on Civil Rules in response to the Request for Comment on 

the proposed amendment to Federal Rule of Civil Procedure 30(b)(6) (“Proposed Amendment”). 

We appreciate the opportunity to offer our perspectives regarding the Proposed Amendment. We 

commend the Committee and the Rule 30(b)(6) Subcommittee on the process that led to this 

Proposed Amendment, as well as the substance of the Proposed Amendment. In particular, the 

Subcommittee’s “road show” which permitted input from such a wide range of perspectives, 

including a meeting in connection with the AAJ conference in Boston, resulted in a rule that is 

well-balanced in addressing concerns of both the defense bar and plaintiff-side counsel. 

NELA is well qualified to comment on the issues raised by the Proposed Amendment 

because it is the largest professional membership organization in the country comprising lawyers 

who represent workers in labor, employment, and civil rights disputes. Founded in 1985, NELA 

advances employee rights and serves lawyers who advocate for equality and justice in the 

American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of 

over 4,000 attorneys who are committed to working on behalf of those who have been treated 

illegally in the workplace. NELA’s members litigate daily in every federal circuit, which 

provides NELA with a unique perspective on how these issues will actually play out on the 

ground. 

I. Comment on the Proposed Amendment

In our written comments earlier in the rulemaking process, NELA opposed expansive 

changes to Rule 30(b)(6). We noted that, while not perfect, Rule 30(b)(6) works well in practice, 

and achieves the efficiencies at which the rule was aimed. We encouraged the Committee to 

leave the rule unchanged, thereby allowing the courts to handle issues that arise on a case-bycase basis. Now, following the drafting period, we believe that the decision to add a formal meet 

and confer process strikes the right balance. 

With respect to the requirement of a meet and confer on the number and description of 

topics, we note that experienced counsel already do this when the need arises. We agree that 

making it an explicit requirement will ultimately reduce disputes and promote efficiency. The 

Proposed Amendment strikes the right balance. The noticing party will not be bound by a rigid 
2

limit on the number of topics, and will retain ultimate control of the subject-matter covered. And 

both parties will benefit from getting clarity on topics that can be refined, narrowed, eliminated, 

or saved for later stage of the litigation. A presumptive cap on the number of topics is not 

needed. In our experience, the “horror story” examples of 100-topic deposition notices provided 

by the defense bar are the very rare exception. We usually see Rule 30(b)(6) depositions used 

reasonably, listing a number of topics directly tied to the issues at play. We have seldom 

experienced disputes over the number of topics listed. Imposition of a bright-line limit would 

only encourage counsel to make each topic broader than necessary in order stay under the cap. 

This would make it more difficult for witnesses to prepare and would lead to disputes.

Requiring advance notice of witnesses also makes sense; it is not a “radical mandate” as 

suggested by Lawyers for Civil Justice (“LCJ”). Again, our experience is that this already 

happens in many cases. Making the practice mandatory will eliminate gamesmanship in 

situations where parties refuse to identify witnesses, hindering counsel’s ability to adequately 

prepare and making the deposition longer and most costly. Of course, the party being deposed 

will retain control over the witnesses provided. But, as stated in the Draft Committee Note, 

advance discussion should help avoid later disputes about whether the witness was appropriately 

knowledgeable. 

Finally, we agree that the Proposed Amendment appropriately clarifies that the new meet 

and confer process will be ongoing, if necessary. As the Draft Committee Note makes clear, the 

process does not mandate that the parties reach an agreement on all issues. However, specifying 

that the process should be ongoing is in keeping with the spirit of Rule 1 and will help prevent 

the process from becoming perfunctory. 

II. Comment on the Draft Committee Note

The Draft Committee Note appropriately explains the rationale behind the proposed rule 

change, and will provide useful guidance for practitioners moving forward. We appreciate the 

explicit discussion of Rule 1 and the overarching goal of moving cases forward with 

collaboration and efficiency. We also agree with the clarification that the meet and confer 

process is not intended to result in an agreement on every issue. 

On the other hand, we believe that the Committee should consider removing the 

following sentence from the Draft Committee Note: “At the same time, it may be productive to 

discuss other matters, such as having the serving party identify in advance of the deposition the 

documents it intends to use during the deposition, thereby facilitating deposition preparation.” 

During the initial discussions of the proposed rule change, there was a suggestion to mandate a 

pre-deposition exchange of exhibits. NELA, along with other groups, opposed this because it (1) 

would merely result in counsel over-disclosing numerous exhibits out of an abundance of 

caution, and (2) could effectively turn what should be a cross-examination into a mere live 

version of interrogatories. Including the suggestion of an early exchange of deposition exhibits in 

the Committee Note risks reading into the new rule a requirement that has already been 

considered and set aside. 
3

III. Response to Comments from the Lawyers for Civil Justice 

We also want to address the comments submitted by Lawyers for Civil Justice, a 

corporate and defense-side organization, on September 12, 2018. LCJ’s comments are largely 

addressed not to the Proposed Amendment, but to an attempt to revive suggestions that were 

considered and wisely rejected during the Subcommittee’s review, and deliberately excluded 

from the Committee’s Proposed Amendment. The public comment period should be used to 

evaluate and as needed refine proposed amendments, addressing the topics specifically raised by 

the proposed amendment. It is not intended to revisit specific suggestions already considered, 

subject to public comment, and then rejected in formulating a proposed amendment. To do so 

would be wasteful of the substantial effort that went into the Subcommittee’s work, and which 

already reached the correct result. 

A. Objections by the responding party should not block a deposition from moving 

forward.

LCJ proposes that a formal objection process be added, and, most significantly, that no 

deposition may take place on topics to which the responding party objects until after motion 

practice resolves the dispute. This is counter-productive. The meet and confer requirement 

included in the Proposed Amendment is the better approach.

The 30(b)(6) deposition is often the first deposition taken in the case. Encouraging formal 

objections would create more motion practice at the start of the discovery process, causing long 

delays that will prevent any productive discovery from being conducted. Further, requiring 

piecemeal depositions, in which the deposition proceeds as to topics the responding party has 

agreed to, with a second deposition after the court rules on an inevitable motion to compel 

regarding the topics to which the responding party objects, would be terribly inefficient. These 

types of inefficiencies can be avoided by leaving the rule as it stands, and allowing the 

organization to move for a protective order if the proposed notice truly is objectionable.

Currently, it is not uncommon for a responding party to raise objections in advance of a 

Rule 30(b)(6) deposition, but those objections do not block the deposition from going forward. 

Nearly always, by the time the deposition is completed, there are no disputes remaining for a 

court to address. In the circumstances where there are disputes, the testimony provided in the

deposition gives context which provides a sounder basis for resolving those disputes. The 

proposed change would inevitably lead to protracted disputes requiring court intervention, and 

piecemeal depositions or greater delay, as the deposition is postponed until the dispute is 

resolved.

The current rule is working effectively. As one court explained:

Although there is some authority for the proposition that a 30(b)(6) notice 

should be stricken in part based upon the specific topics included in the 

notice, the proper operation of the Rule does not require, and indeed does 

not justify, a process of objection and Court intervention prior to the 
4

schedule deposition. That would provide a corporate deponent a 

procedural benefit that no other deponent has. ...

Instead, the better procedure to follow for the proper operation of the Rule 

is for a corporate deponent to object to the designation topics that are 

believed to be improper and give notice to the requesting party of those 

objections, so that they can either be resolved in advance or otherwise. The 

requesting party has the obligation to reconsider its position, narrow the 

scope of the topic, or otherwise stand on its position and seek to compel 

additional answers if necessary, following the deposition. The reason that 

is a better procedure is that the deponent's answers to relevant questions 

at the deposition will have a great deal of impact upon the strength of the 

arguments in support of or against a motion to compel. The answers 

provided will give the Court a factual record with which to judge whether a 

particular topic or question asked should be compelled or not. And that 

forces a responding party to ensure that the witness provides as much 

relevant or possibly relevant information as possible given the liberal scope 

of discovery provided by Rule 26 to forestall the necessity for a motion to 

compel.

New World Network Ltd. v. M/V NORWEGIAN SEA, No. 05-22916 CIV, 2007 WL 1068124, at 

*4 (S.D. Fla. Apr. 6, 2007) (emphasis added). This procedure, outlined by the court under the 

existing rule, is what we commonly see in practice in courts throughout the country. It typically 

results in informal resolution of any concerns about the scope of the 30(b)(6) notice. The 

Proposed Amendment which mandates that a meet and confer about the scope of the Rule 

30(b)(6) topics take place is the better approach, leading the parties to resolve most disputes 

between themselves, with fewer issues submitted to the courts.

LCJ goes further and suggests that as to some topics, a responding party may not only 

object, but refuse to produce any witness at all, instead directing the propounding party to 

documents. As a general rule, a company may not use this method to respond to a Rule 30(b)(6) 

notice:

In responding to a Rule 30(b)(6) notice or subpoena, a corporation may not 

take the position that its documents state the company's position and that a 

corporate deposition is therefore unnecessary. Great Am., 251 F.R.D. at 

540.

Similarly, a corporation cannot point to interrogatory answers in lieu of 

producing a live, in-person corporate representative designee. Marker, 125 

F.R.D. at 127.

QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 689 (S.D. Fla. 2012) (footnote 

omitted). It should not be permitted to do so by claiming the company has “no knowledge” 

outside of the documents. A company is in a better position to understand and interpret its own 

documents than an opposing party is, thus the parties are not equally informed by the written 
5

record. Companies often seek information from former employees, and name them as witnesses 

in employment disputes. If they are permitted to do so, they should be similarly required to seek 

such information earlier in discovery in order to prepare for a Rule 30(b)(6) deposition so that

testimony binding upon the company is available. Testimony from former employees cannot be 

attributed to the company in the same way. Moreover, the testimony of the witness can 

ultimately be that the company has no knowledge – but the Company may not then be permitted 

to come forward at trial with the knowledge it testified that it lacked. The discovery process is 

designed to ensure both parties have the opportunity to uncover evidence in advance of trial, not 

to permit a company to play games with what knowledge it has by manipulating the time at 

which it seeks information from former employees if no other source exists.

B. A uniform 30-day notice requirement is too inflexible.

LCJ proposes that 30 days’ notice be mandatory for any deposition pursuant to Rule 

30(b)(6). There is no reason for such a one-size-fits-all approach. Especially given that the 

Proposed Amendment builds in a meet and confer process in which an initial notice may be 

discussed, and then modified, there should be no reason for a further 30-day period after the 

parties have conferred and narrowed the topics to be included. Professional counsel will always 

discuss deposition dates with opposing counsel and seek a mutually agreeable date. To have a 

rigid 30-day notice rule for just one type of deposition would be one-sided, and would make 

discovery take longer without any real benefit that is not better obtained through the meet and 

confer process incorporated in the Proposed Amendment.

C. A numerical limitation on the number of topics is artificial and unproductive.

LCJ’s suggestion that there be a limit of ten topics in a Rule 30(b)(6) deposition is 

unwarranted and counter-productive. Artificial limits are hardly the norm as LCJ suggests: the 

Federal Rules do not include a limit on the number of document requests or requests for 

admission. Nor should they on the number of topics to be included in a Rule 30(b)(6) 

deposition. Moreover, to limit a propounding party to ten topics would merely serve to 

encourage broader topics, which responding parties would then complain were too vague. There 

is no corresponding limit on the range of topics on which a named witness may be deposed, and 

it would be one-sided to impose such a limit only when the responding party is a corporation 

rather than a natural person. LCJ’s proposal is founded on the unlikely contention that it is 

“common” for Rule 30(b)(6) notices to include 60 or 100 separate topics spanning 50-80 years. 

As noted above, those are, in fact, highly unusual circumstances which can be readily addressed 

with a motion for a protective order, as they were in the two cases relied upon by LCJ in support 

of its proposal. 

D. The current rule under which a Rule 30(b)(6) notice counts as one deposition, 

while a maximum of seven hours is permitted with each witness should be 

maintained.

The Advisory Committee notes establish that each Rule 30(b)(6) deposition notice counts 

as one deposition, regardless of the number of witnesses the producing party chooses to 

designate. Any change in this rule would permit a corporate party to game the system by 
6

designating a large number of separate witnesses, leaving the opposing party no opportunity to 

depose other witnesses without obtaining an enlargement of the presumptive limitation. 

Plaintiffs, for whom compensation is often largely or wholly contingent upon the outcome of 

litigation, have no incentive to take unnecessary depositions, or make depositions last longer 

than needed. With the utility of Rule 30(b)(6), many of our members do not even use all of their 

allotted depositions. Moreover, where a defendant designates a large number of separate 

witnesses in response to a Rule 30(b)(6) notice, then witnesses with fewer or shorter topics may 

only be deposed for an hour or two. But where witnesses are designated to cover more, or more 

significant topics, a full day is necessary, appropriate, and the current practice allows for a full 

seven hour deposition with each witness. These issues are commonly resolved by agreement 

with opposing counsel, and rarely require court intervention. However, if a change were made, 

then court intervention to adjust the number of depositions permitted, or the allocation of time 

among 30(b)(6) designees could be required.

Notably, the party receiving the notice is in control of how many witnesses are produced. 

For instance, in some cases multiple witnesses are designated to cover different time periods. 

This is done, presumably, for the convenience of the organization. The noticing party should not 

be required to use an extra deposition due to the needs (strategic or otherwise) of the other side. 

Further, limiting the amount of time that a party can spend with each Rule 30(b)(6) witness may 

prevent certain topics from being explored as thoroughly as needed, requiring additional fact 

witness depositions that could otherwise be avoided. This area is not currently a source of

disputes that cannot be resolved by the parties, and a rule change would be more likely to 

increase unnecessary conflict.

E. There should be no bar on questions related to a party’s contentions, nor any 

different rule restricting questions about what witnesses did to prepare for 

deposition. The existing rules that apply to all witnesses should be used with 

Rule 30(b)(6) witnesses as well.

LCJ’s proposal to bar on asking witnesses what materials they reviewed to prepare for 

deposition, and barring questions regarding the legal contentions of a party would place 

corporate designees on a separate footing than other party witnesses, with no justification. 

NELA urges the Committee to avoid introducing discovery restrictions on individual litigants 

that do not apply to organizational parties.

Corporate defendants often ask plaintiffs in employment cases what reasonably could be 

described as “contention questions” during their deposition (e.g., “What support do you have for 

your claim that you suffered discrimination?”), and plaintiffs do the same in deposing certain 

corporate representatives (e.g., “Which individuals were involved in the decision to fire the 

plaintiff?” or “What does defendant contend was the legitimate, non-discriminatory reason for 

the employment decision at issue?”). From the perspective of the plaintiff, for example, 

identifying the relevant decision-makers at the earliest point possible in a case is essential in 

deciding which individuals potentially should be deposed, as well as focusing subsequent 

discovery requests. As such, these types of questions address the problem of information 

asymmetry that almost always exists at the outset of an employment case, while promoting 

efficiency in the discovery process.
7

Allowing such questions to be asked of individual plaintiffs, but not of the designated 

representatives of organizational defendants, would unfairly tilt the scales in favor of one party 

to the litigation, without any principled justification. Further, in light of the limitations on other 

discovery devices that could be used to narrow factual issues, the value of 30(b)(6) depositions in 

identifying an organizational litigant’s position on the facts in a case is higher than ever. Such a 

change would only lessen the effectiveness of the rule.

Existing rules and practices deal adequately with the issue of litigants inappropriately 

asking certain deponents to offer legal conclusions or state legal contentions, i.e., the party 

objecting to the question may do so, and seek judicial resolution of their objection if necessary. 

Current law recognizes that whether a particular issue should be raised during a 30(b)(6) 

deposition or through a contention interrogatory depends on the particular circumstances of a 

given case, and NELA respectfully urges the Committee to consider carefully whether 

rulemaking on this issue would be productive. See U.S. v. Taylor, 166 F.R.D. 356, 363 

(M.D.N.C. 1996) (“Whether a Rule 30(b)(6) deposition or a Rule 33(c) contention interrogatory 

is more appropriate will be a case by case factual determination.”) It is not at all clear that what 

constitutes a “contention question” may be reduced to a generally-applicable definition that 

could be included in a rule amendment.

Thank you for the opportunity to present NELA’s views on this important matter. Please 

do not hesitate to contact NELA should you have any questions.

Respectfully submitted,

Terry O’Neill

NELA Executive Director

Oakland, CA

toneill@nelahq.org

Joseph D. Garrison

NELA Liaison to the Civil Rules Advisory Committee

Garrison, Levin-Epstein, Fitzgerald & Pirrotti, PC

New Haven, CT

Jgarrison@garrisonlaw.com

Robert L. Schug

Nichols Kaster, PLLP

Minneapolis, MN 

Schug@nka.com

Christine Webber 

Cohen, Milstein, Sellers & Toll PLLC 

Washington, DC 

cwebber@cohenmilstein.com
TAB 21 

TESTIMONY AND COMMENT OF 

BRUCE R. PARKER

VENABLE LLP
Bruce R. Parker

T 410.244.7534

F 410.244.7742

BRParker@venable.com

January 15, 2019

VIA EMAIL AND FIRST–CLASS MAIL (email: RulesCommittee_Secretary@ao.uscourts.gov)

Administrative Office of the United States Courts

Attn: Rules Committee Staff

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E, Room 7-240

Washington, D.C. 20544

Dear Rules Committee:

As I indicated in an email to the Committee on December 10, 2018, I intend to appear in

Washington, DC on February 8, 2019 to testify on the proposed changes to Rule 30(b)(6). On

December 27, 2018, I filed a public comment objecting to the Committee’s proposed changes

titled: “Comments on Proposed Amendment to Federal Rule of Civil Procedure 30(B)(6).” For

convenience, I’ve enclosed a copy of the comment.

My February 8th testimony will elaborate on my written comments and shed further light

on why the Committee’s proposal to require a meet and confer on the identity of each person the

organization intends to designate as its representative is both troublesome and unnecessary.

Specifically, I’ll discuss my views that such a requirement: (1) invades attorney opinion work

product; (2) will inevitably lead to additional discovery disputes and increased costs; and (3) is a

solution in search of a problem because under the existing Rules a requesting party can already:

(a) seek sanctions if a corporate representative is unable to adequately address the areas identified

in the notice; and (b) depose individually the person who the requesting party believes should have

been designated as the representative. To support my position, I may cite to the Committee’s

Notes on the 2010 Amendments to Rule 26 – specifically its rationale for providing work product

protection against discovery of draft expert reports and attorney-expert communications.

If you have any questions or concerns, or are in need of additional information, please do

not hesitate to contact me. Thank you.

Sincerely

Bruce R. Parker
VENABZELLP T 410.Z44A7400TRF 410.244! 774 0o wwAw.Venable. om

21202

December 27, 2018

T 410.244.7534

F410.244.7742

BRParker@Venable. com

Advisory Committee on Civil Rules

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Room 7-240

Washington, D.C. 20544

Re: Comments on Proposed Amendment to Federal Rule of Civil Procedure 30(b)(6)

Dear Members of the Civil Rules Advisory Committee:

I welcome the opportunity to provide you with my comments on the proposed amendments

to Federal Rule 30(b)(6).

I have been a civil defense lawyer for 40 years. For most of my career, I have defended

product liability cases brought against pharmaceutical and medical device manufacturers. I am a

member of the American College of Trial Lawyers, and I have tried cases to verdict in state or

federal courts in seven states. I have served as the President of the International Association of

Defense Counsel and the Maryland Defense Counsel Association. I have also served on the Board

of Directors for the Lawyers for Civil Justice and the Defense Research Institute. Both

organizations have submitted comments regarding the proposed amendments to Rule 30(b)(6).

I do not have a strongly held opinion regarding the proposal for a mandatory meet and

confer on the topics to be included in the deposition notice. As a practical matter, counsel currently

confer on the "matters for examination." Consequently, aside from generating more expense to a

process (speaking of discovery) already too expensive, current practice will not materially change

by mandating a meet and confer on this issue. The same is not true, however, for mandating a

meet and confer on the identity of the corporate designee.

There are many deficiencies in Rule 30(b)(6) practice that cry out for amendment. The

Lawyers for Civil Justice offered several sensible suggestions in its submissions dated December

21, 2016, July 5, 2017, Apri16, 2018 and September 12, 2018. Those proposed rule changes would

provide a meaningful improvement to current practice under Rule 30(b)(6). The selection of the

designee, however, is one area of practice that does not routinely cause disputes, because it is

abundantly clear from case law that the corporate deponent has the sole right to select whom shall
~ ;

December 27, 2018

Page 2

serve as its representative.l The Draft Committee Note recognizes as much, stating: "Although

the named organization ultimately has the right to select its designee ...." This acknowledgment

begs the question, why require a meet and confer on the identity of the representative? The only

clue the Committee Note offers is that "discussion about the identity of the person to be designated

to testify may avoid later disputes." I do not understand the reasoning behind this statement. If

the selection of the designee is a significant problem, and in my experience it is not, then why

continue to give the corporate deponent the ultimate right to select its representative? On the other

hand, if the selection of the designee is not a significant problem, then requiring a meet and confer

on this issue is mandating a solution to a problem that does not exist. Instead, my experience

teaches me that mandating a meet and confer on the identity of the designee will virtually guarantee

that discovery fights will develop over the selection process.

Aside from being unnecessary, inevitably inviting additional discovery disputes and

thereby increasing discovery costs, I primarily object to the proposed amendment because it

invades the opinion work product of counsel for the corporate deponent (whom I will refer to as

1 See, e.g., Quilez-Pelar v. Ox Bodies, Inc., Civ. No. 12-1780(GAG/SCC), 2014 WL 12725818, at

*1 (D.P.R. Jan. 3, 2014) ("[T]he noticed corporation alone determines the individuals who will

testify on those subjects. What the discovering party simply cannot do is require that a specific

individual respond to a Rule 30(b)(6) notice."); Colwell v. Rite Aid CoNp., No. 3:07cv502, 2008

WL 11336789, at * 1 (M.D. Penn. Jan. 24, 2008) ("Nothing in the rule indicates that the party

seelcing the deposition can determine the identity of the person to be deposed."); Booker° v.

Massachusetts Dept. of Publzc Health, 246 F.R.D 387, 389 (D. Mass. 2007) ("Plaintiff may not

impose his belief on Defendants as to whom to designate as a 30(B)(6) witness."); Cleveland v.

Palmby, 75 F.R.D. 654, 657 (W.D. Olcla. 1977) ("Rule [30(b)(6)] does not provide that a party can

specifically name an employee of an organization and then require the organization to designate

such employee as a witness to testify on behalf of the~organization."); Burris v. Versa P~°od., Inc.,

No. CIV. 07-3938 JRT/JJK, 2013 WL 608742, at *7 n.6 (D. Minn. Feb. 19, 2013) ("Because Rule

30(b)(6) imposes on the organization the obligation to select the individual witness, the party

seeking discovery under that provision of the rule is not permitted to insist that it choose a specific

person to testify unless in response to a Rule 30(b)(6) notice."). See also 8A CHARLES ALAN

WRIGHT, ET AL., FEDERAL PRACTICE &PROCEDURE § 2103 (3d ed. 2013) ("[T]he party

seeking discovery under [Rule 30(b)(6)] is not permitted to insist that it choose a specific person

to testify[.]"); JAMES WM. MOORE, ET AL., MOORE'S FEDERAL PRACTICE § 30.25[3](3d

ed. 2013) ("It is ultimately up to the organization to choose the Rule 30(b)(6) deponent, and the

party requesting the deposition generally has no right to assert a preference if the designee is

sufficiently knowledgeable on the subject matter.").
VENABLE LLP

December 27, 2018

Page 3

"deponent counsel").2 The scenarios below demonstrate how the proposed amendment will

intrude upon deponent counsel's opinion work product.

Scene 1 of scenario #1: Experienced counsel who is requesting a Rule 30(b)(6) deposition

(whom I will refer to as "requesting counsel"), armed with the right to have a meet and confer on

the selection of the designee, will demand (at the meet and confer) to be told who among the

employees (former and current) were considered to be the designee. The rationale for this demand

will be that requesting counsel cannot engage in a meaningful meet and confer without this

information. This demand, while seemingly reasonable, ignores the fact that the process by which

a designee is chosen is a function of the opinion work product of deponent counsel.

Since Rule 30(b)(6) depositions are routinely sought in products liability litigation,

discussions between deponent counsel and the client begin soon after suit is brought to identify

individuals who can address issues likely to be raised in such a deposition. Interviews are

conducted, and in this deliberative process, the client and deponent counsel develop a list of

potential candidates (I will refer to this pool as the "finalists") with relevant knowledge.

If deponent counsel is required to disclose the "finalists," at or before the meet and confer,

doing so will disclose the results of the analytical process through which the finalists were chosen.

Those favoring the amendment will argue that "opinion work product" is solely the deliberative

process, and that such information is not sought when counsel is simply asked to identify the

finalists. That, however, is disingenuous. It is functionally equivalent to asking requesting counsel

to identify the names of all of the experts considered but not retained for any purpose. Such a

2 Opinion work product encompasses the "mental impressions, conclusions, opinion, or legal

theories of an attorney or other representative of a party concerning the litigation [and] is generally

afforded near absolute protection from discovery." In re Cendant Copp. Sec. Litig., 343 F.3d 658,

663 (3d Cir. 2003) (citation and internal quotation marks omitted). See also Spo~ ck v. Pezl, 759

F.2d 312, 316 (3d Cir. 1985) ("Opinion work product ... is accorded an almost absolute protection

from discovery because any slight factual content that such items may have is generally

outweighed by the adversary system's interest in maintaining the privacy of an attorney's thought

processes and in ensuring that each side relies on its own wit in preparing their respective cases.");

In re MuNphy, 560 F.2d 326, 336 (8th Cir. 1977) ("In our view, opinion work product enjoys a

nearly absolute immunity and can be discovered only in very rare and extraordinary

circumstances.");Republic ofEcuado~° v. Mackay, 742 F.3d 860, 869 n.3 (9th Cir. 2014) ("Opinion

work product represents the core types of work product . . . ,namely an attorney's mental

impressions, conclusions, opinions, or legal theories developed in anticipation of litigation. It is

virtually undiscoverable.") (citations and internal quotation marks omitted); Smith v. Scottsdale

Ins. Co., 621 Fed. Appx. 743, 746 (4th Cir. 2015) ("[O]pinion work product enjoys a nearly

absolute immunity and can be discovered only in very rare and extraordinary circumstances.")

(citation and internal quotation marks omitted).
1 ;

December 27, 2018

Page 4

discovery inquiry would be rejected as invading the opinion work product of the requesting

counsel. Even if the anticipated response just outlined had merit (with which I would disagree),

the next step in the meet and confer will, without question, invade the opinion work product

protection.

Scene #2 of Scenario #1: If the names of the finalists are given to requesting counsel when

the designee is actually selected, requesting counsel will either: (1) not oppose the selection, (2)

demand to know why the person chosen was selected over other finalists, or (3) argue that another

person (not among the finalists) ought to serve as the designee. Clearly deponent counsel cannot

respond fully to arguments made in instances (2) and (3) because doing so would disclose the

reasoning behind the selection of the designee. It is not uncommon to find an employee who has

considerable knowledge on an issue but who is wholly unsuitable for any number of reasons to be

a corporate designee. In this situation, deponent counsel will select someone who has less

knowledge on the "matters for question" but who is a considerably better witness and, as such, a

better corporate designee. If nothing else, being forced to identify who was among the finalists

gives requesting counsel a list of employees to target for individual depositions.

My experience as trial counsel in hotly contested mass tort litigation convinces me that the

dispute outlined above will prompt the requesting party to file a motion to compel (before the

deposition is taken) to challenge the selection of the designee. At the hearing on the motion, the

court will ask deponent counsel why someone was selected as the designee over seemingly more

qualified candidates identified by requesting counsel. This question puts deponent counsel in the

untenable position of either: (1) responding to the court's inquiry, and thereby potentially waiving

opinion work product; or (2) refusing to answer on the grounds that doing so would violate opinion

work product protection recognized in Federal Rule of Civil Procedure 26(b)(3). It is entirely

likely that, if deponent counsel declines to answer the colu-t's question, the court may order the

corporation to produce the designee identified by the requesting party. There is no effective appeal

process for the corporate deponent faced with such an order.

Scene #1 of Scenario #2: Assume the requesting party has deposed several corporate

employees in their individual capacity before noticing a Rule 30(b)(6) deposition. Since the

testimony of these employees is not an admission of the corporation, it is commonplace for a

requesting party to seek a Rule 30(b)(6) deposition on issues already addressed in these prior

depositions. In some of the depositions, the witnesses will have demonstrated poor witness skills.

In this situation, deponent counsel will most likely decline to produce the same witnesses as the

corporate designee. Deponent counsel will instead find employees (current or former) who possess

good witness skills and will have that person prepared to serve as the designee. Unlike scenario

number one, where no transcripts of testimony were available, here, transcripts are available that

will demonstrate that witnesses with key knowledge were not chosen as the designee on the same

issues discussed in their depositions. In this situation, deponent counsel can reasonably anticipate

the court pushing even harder for an explanation of why the previously-deposed individuals were
~ ~

December 27, 2018

Page 5

not chosen as the designee. If the explanation is not forthcoming (for the reasons explained), it is

even more likely that an order will be issued granting the motion and directing the corporate

deponent who to produce as its designee.

I mentioned at the beginning of my comments that the selection of the designee rarely

causes a dispute in litigation. That is because if the selected designee cannot address the areas

identified in the notice, the corporation will likely face motions to compel with sanctions, and/or

motions to exclude the designee's testimony. Moreover, at trial, the requesting counsel is likely

to argue to the jury in one way or another that the selection of an inadequate or poorly prepared

designee reflects an attempt by the corporation "to hide the truth." Thus, experienced deponent

counsel do not take lightly the responsibility to select a designee who meets the requirements of

Rule 30(b)(6).

The above examples are not attempts to develop an imaginative law school examination.

They are scenarios that will likely occur with the proposed rule change based upon decades of

experience handling Rule 30(b)(6) depositions. If the Committee does not intend to change case

law (which holds that the selection of the corporate designee belongs to the corporate deponent),

then no purpose is served (other than to generate discovery disputes) by mandating a meet and

confer on the identity of the designee. For all these reasons, I urge the Committee to withdraw the

proposal to mandate a meet and confer on the identity of the corporate designee.

Sincerely,

~

~ 4 4

~..

Bruce R. Parker
TAB 22 

COMMENT OF 

NATIONAL CONSUMER LAW CENTER, INC.

AND

NATIONAL ASSOCIATION OF

CONSUMER ADVOCATES
1 

COMMENT TO THE ADVISORY COMMITTEE ON CIVIL RULES 

and its 

RULE 30(b)(6) SUBCOMMITTEE 

On Behalf of 

NATIONAL CONSUMER LAW CENTER, INC. AND NATIONAL ASSOCIATION OF 

CONSUMER ADVOCATES 

January 3, 2019 

INTRODUCTION 

The National Consumer Law Center (“NCLC”) and the National Association of 

Consumer Advocates (“NACA”) respectfully submit this Comment to the Judicial Conference 

Advisory Committee on Civil Rules and its Rule 30(b)(6) Subcommittee (“Subcommittee”) 

pursuant to its invitation for comment on the proposed amendments to Civil Rule 30. 

NCLC is a 501(c)(3) nonprofit organization, founded in 1969, whose mission is to use its 

expertise in consumer law to advance the rights of underrepresented low-income people, 

including through litigation. NCLC's litigation activities focus on cases in which low-income or 

elderly consumers may benefit from NCLC's specialized expertise, particularly in the areas of 

credit, bankruptcy, preservation of home ownership, consumer sales and services, and the 

provision of services to low-income utility users and potential users. 

NACA is a nonprofit association whose members are legal services attorneys, law 

professors, and private and public sector attorneys committed to the protection and 

representation of consumers. NACA’s mission is to promote justice for all consumers by 

maintaining a forum for information sharing among consumer advocates across the country and 
2 

to serve as a voice for its members, as well as consumers, in the ongoing struggle to curb unfair 

and abusive business practices. 

Based on our extensive litigation experience on behalf of consumers around the country, 

NCLC and NACA support the proposed amendment, with minor recommendations for further 

improvement. 

I. THE PROPOSED AMENDMENT REPRESENTS A REASONABLE CHANGE 

THAT WOULD FACILITATE FACT-FINDING, PRESERVE PARTIES’ 

RESOURCES, AND PROMOTE JUDICIAL ECONOMY. 

Depositions “rank high in the hierarchy of pre-trial, truth-finding mechanisms.”1

 They are 

so crucial to the fact-finding process that disrupting them can “frustrate the entire civil justice 

system’s attempt to find the truth.”2 Rule 30(b)(6) was an important addition to the deposition 

repertoire, one that its inaugurating Advisory Committee described as “an added facility for 

discovery, one which may be advantageous to both sides as well as an improvement in the 

deposition process.”3 And indeed, the Rule has proved a decidedly effective and essential tool in 

consumer law cases since its adoption. 

Moreover, the Rule has struck a fair and appropriate balance between the interests of 

plaintiffs and defendants: it seeks to keep plaintiffs from having to depose a series of corporate 

representatives, all of whom disclaim any knowledge of the issue,4 while also giving corporate 

defendants more control over the process, including the power to designate and prepare their 

own 30(b)(6) witnesses.5

 

1 Founding Church of Scientology, Inc. v. Webster, 802 F.2d 1448, 1451 (D.C. Cir. 1986). 

2 United States v. Kattar, 191 F.R.D. 33, 38 (D.N.H. 1999) (quoting Damaj v. Farmer’s Ins. Co., Inc., 164 F.R.D. 

559, 560 (N.D. Okla. 1995)). 

3

 Fed. R. Civ. P. 30(b)(6) Advisory Comm. Note (1970). 

4

Id.

5

Fed. R. Civ. P. 30(b)(6); QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 687-88 (S.D. Fla. 2012) (“The 

rule [30(b)(6)] gives the corporation being deposed more control by allowing it to designate and prepare a witness to 

testify on the corporation's behalf.”) (citing United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). 
3 

 We agree with the Subcommittee, however, that the Rule is not perfect. The plaintiffs’ 

bar complains that corporate representatives too frequently show up to depositions only to claim 

ignorance as to the matters on which they are to be deposed. The defense bar, by contrast, 

complains that far-reaching deposition notices require significant preparation costs that are not 

justified. The proposed amendment’s meet-and-confer requirement represents a balanced 

approach to reforming the Rule that will help ameliorate the concerns raised by each side. As a 

result, the National Consumer Law Center and the National Association of Consumer Advocates 

support this recommended addition to Rule 30(b)(6).

A. The Proposed Meet-and-Confer Requirement Would Foster Greater 

Productivity in 30(b)(6) Depositions and Achieve Judicial Economy by 

Facilitating Adequate Preparation of Witnesses. 

As the Subcommittee is well aware, one issue that often arises in the context of 30(b)(6) 

depositions is the inadequate preparation of witnesses.6

 Indeed, this problem has plagued 

numerous NCLC and NACA cases over the past several decades since Rule 30(b)(6) was 

adopted. Based on our experiences in the consumer protection litigation realm, NCLC and 

NACA believe that the proposed amendment directly would address, and help reduce, the 

incidence of this recurring obstacle to effective discovery in our cases. 

First, if the organization’s failure to designate or prepare a knowledgeable representative 

stems from a misunderstanding between the parties (perhaps arising from the serving party’s 

overlong or ambiguously worded notice7), then requiring the parties to confer in advance could 

help clarify any misunderstandings so they can be rectified promptly. Second, the proposed 

preliminary meeting would deter intentional violations of the Rule since an astute organization 

 

6

 Agenda Book, Committee on Rules of Practice and Procedure, June 12, 2018, at 293 (“Particular concerns have 

included . . . inadequately prepared witnesses.”). 

7

 See id. (“Particular concerns have included overlong or ambiguously worded lists of matters for examination . . . 

.”). 
4 

would recognize that courts would be less willing to suffer this type of gamesmanship knowing 

that the parties were required to confer about the matters for examination and the identities of 

those best suited to answer these questions beforehand. 

By promoting the adequate preparation of witnesses, the proposed amendment would be 

beneficial to both parties, as well as beneficial for the fair and efficient administration of justice. 

For the serving party, an adequately prepared witness helps to ensure the most efficient access to 

relevant information; for the organization, an adequately prepared witness helps to avoid 

multiple discovery demands or potential sanctions.8

 Indeed, Lawyers for Civil Justice cited this 

latter factor in a 2016 comment in which they advocated for amendments to the Rules that would 

“promote early cooperation between the parties,” 9 including earlier discussion about “the 

substance . . . of the 30(b)(6) deposition.”10 Finally, for the court system, a meet-and-confer 

requirement that helps clarify the goals of the deposition and facilitates adequate preparation of 

the witness can help conserve judicial resources that may otherwise have to be expended 

deciding whether to compel an organization’s representative witness to answer questions beyond 

the scope of the deposition notice11 or deciding whether to impose sanctions for inadequate 

compliance with the rule. 

In short, by facilitating designation and preparation of knowledgeable witnesses, the 

proposed amendment and its meet and confer requirement would serve the interests of the 

serving party, responding organization and the judicial system as a whole. 

 

8

See Lawyers for Civil Justice, Not up to the Task: Rule 30(b)(6) and the Need for Amendments that Facilitate 

Cooperation, Case Management and Proportionality, Comment to the Advisory Committee on Civil Rules, at 7-8 

n.27 (Dec. 21, 2016) (citing cases involving sanctions for inadequate preparation). 

9

Id. at 3. 

10 Id. at 2. 

11 Id. at 7 n.26 (citing cases demonstrating that case law is divided on whether an organization’s representative 

witness can be forced to answer questions beyond the scope of the notice). 
5 

B. Second, the Proposed Amendment’s Identification Requirement, in Particular, 

Would Help Reduce the Incidence of Bandying. 

Requiring the parties to confer not just about what information the serving party seeks but 

also about who within the organization might possess it would help to further curb the specific 

bandying abuse which Rule 30(b)(6) originally was intended to deter if not eliminate..12 While 

the adoption of Rule 30(b)(6) already has helped reduce this practice, it has failed, in its current 

form, to fully put a stop to it.13

 

By requiring open and frank discussions about the witness or witnesses the organization 

plans to designate as its representatives, the proposed amendment undoubtedly will help ensure, 

as the Subcommittee predicts, that the representatives it ultimately designates will be “the right 

person to testify.”14 Reduction of bandying would, in turn, hasten fact-finding and “avoid later 

disputes.”15

C. Third, the Proposed Meet-and-Confer Requirement Would Help Promote the 

Fair and Efficient Administration of Justice by Diffusing Information 

Asymmetry Earlier in the Litigation Process. 

Information asymmetry characterizes many of NCLC’s and NACA’s consumer 

protection cases, and indeed characterizes a great many of the cases in which 30(b)(6) 

depositions are found useful. A key underlying purpose of Rule 30(b)(6) is to help diffuse this 

asymmetry by “giv[ing] a requesting party the means to obtain testimony efficiently from the 

corporation when the requesting party does not know who the appropriate witnesses are, or when 

 

12 Fed. R. Civ. P. 30(b)(6) Advisory Comm. Note (1970) (“[The new provision] will curb the ‘bandying’ by which 

officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are 

clearly known to persons in the organization and thereby to it.”) 

13 For one prominent example of corporate bandying that occurred since the adoption of Rule 30(b)(6), see Miles W. 

Lord, The Dalkon Shield Litigation: Revised Annotated Reprimand by Chief Judge Miles W. Lord, 9 Hamline L. 

Rev. 7, 11 (1986) (“The project manager for Dalkon Shield explains that a particular question should have gone to 

the medical department. The medical department representative explains that the question was really [for] the 

quality control department. The quality control department representative explains that the project manager was the 

one with the authority to make a decision on that question.”). 

14 Agenda Book, Committee on Rules of Practice and Procedure, June 12, 2018, at 293. 

15 Id. at 294. 
6 

one witness may not be able to provide the desired information.”16 Because the defendantcorporation or government agency often has sole knowledge of the events that gave rise to the 

lawsuit and of its own practices, Rule 30(b)(6) depositions enable plaintiffs to glean relevant 

information about such practices, which otherwise may be inaccessible to them, sooner in the 

litigation process and allow defense counsel to better and more efficiently prepare 

representatives to testify to these practices when deposed. 

The fact that plaintiffs’ original notices and deposition interrogations sometimes may 

appear to be overly broad or entirely off-topic, and therefore characterized as so-called “fishing 

expeditions”, usually is directly attributable to this information asymmetry which even can 

persist late into the discovery process. The proposed 30(b)(6) conferences, however, promise to 

help diffuse this information asymmetry earlier—before the 30(b)(6) depositions are taken—and 

thereby will enable plaintiffs to narrow the scope of their notices and to focus their depositions 

more accurately to cover only the subjects that are most relevant to their claims. 

Early communication would help streamline discovery for plaintiffs but also would serve 

the interests of organizational defendants. Rather than being forced by an overly broad notice to 

designate multiple representatives and prepare them for many potential lines of questioning—

one of the very ills at which the proposed amendment is aimed17—parties could home in on the 

most relevant areas for examination and organizations would be able to focus on preparing only 

for those topics that had been designated. This improvement would save the organization 

significant preparation costs and also limit the need for subsequent, follow up depositions. 

 

16 Sidney Schenkier, Turning the Table, Deposing Corporations and Other Fictive Persons: Some Thoughts on Rule 

30(b)(6), 29 Litig. 20, 20. 

17 Agenda Book, Committee on Rules of Practice and Procedure, June 12, 2018, at 293 (“Particular concerns have 

included overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.”). 
7 

Indeed, some of the parties now objecting to this proposed amendment have elsewhere 

lauded rules promoting just these kinds of preparatory, preliminary discussions. Lawyers for 

Civil Justice, for example, argued in an earlier comment that “[r]equiring the definition of topics 

that may be noticed in a 30(b)(6) deposition early in the discovery period will assist the parties 

and the court in achieving judicial economy, reducing unnecessary costs and navigating the early 

resolution of disputes.”18 NCLC and NACA agree, and believe that the proposed amendment 

could achieve precisely these goals. 

D. In Any Event, the Proposed Amendment Would Effect Only a Minor—and 

Unburdensome—Change to Rule 30(b)(6). 

 NCLC and NACA support the Subcommittee’s inclination only to propose at this time 

relatively minor changes to Rule 30(b)(6), a highly valuable Rule that has worked in 

substantially its original form for nearly fifty years and that all can agree provides “a key element 

of discovery in many cases.”19 Objections that the proposed amendment imposes a new and 

unfair burden on corporations are misguided at best.

20

 

In fact, the proposed amendment’s requirements are largely redundant with corporations’ 

existing obligations. Rule 26 already requires parties, within fourteen days of a Rule 26(f) 

conference, to disclose “the name and, if known, the address and telephone number of each 

individual likely to have discoverable information—along with the subjects of that 

information—that the disclosing party may use to support its claims or defenses,” as well as “a 

copy—or a description by category and location—of all documents, electronically stored 

information, and tangible things that the disclosing party has in its possession, custody, or 

 

18 Lawyers for Civil Justice, supra note 10, at 3. 

19 Id. at 2. 

20 See, e.g., Letter from John H. Beisner, Skadden, Arps, Slate, Meagher & Flom LLP, to Rebecca A. Womeldorf, 

Secretary of the Committee on Rules of Practice and Procedure of the Administrative Office of the United States 

Courts, June 11, 2018; Letter from Kenneth J. Reilly, Shook, Hardy & Bacon LLP, to Committee on Rules of 

Practice and Procedure of the Administrative Office of the United States Courts, et al., June 6, 2018.
8 

control and may use to support its claims or defenses.”21 The work of identifying these 

individuals and documents overlaps substantially with the work of identifying Rule 30(b)(6) 

designees. 

Indeed, in some jurisdictions, the proposed amendment would simply codify existing 

practice. As some Standing Committee members have observed, “making this rule change would 

not really change practice much in some districts.”22 At least one district requires a party 

bringing a motion before the court regarding a 30(b)(6) deposition to first certify that the parties 

“have met and conferred about the matter.”23 And at least two districts require parties to confer 

or at least try to confer about scheduling depositions before noticing them.24 

The success of the proposed amendment’s provisions in other jurisdictions is strong 

assurance that the proposed amendment would prove workable—rather than unduly 

burdensome—if adopted nationally. In brief, the proposed amendment presents a low-burden 

method of improving upon Rule 30(b)(6) successes and helping to ensure that parties can better 

“secure the just, speedy, and inexpensive determination of every action and proceeding.”25 

II. RULE 30(b)(6) SHOULD BE IMPROVED VIA TWO FURTHER CHANGES. 

As discussed in Section I, NCLC and NACA agree that the Advisory Committee’s 

proposed amendment is a step in the right direction and support its adoption. We believe, 

however, that the proposed amendment has not gone quite far enough and would be improved 

via the following two changes. 

 

21 Fed. R. Civ. P. 26(a)(1). 

22 Agenda Book, Committee on Rules of Practice and Procedure, June 12, 2018, at 335. 

23 Id.

24 See Civil Local Rules, United States District Court for the Northern District of California, at 30-31, 

https://cand.uscourts.gov/localrules/civil#DEPOSITIONS; Rule 30.1: Conduct at Depositions, United States District 

Court for the Northern District of Ohio, http://www.ohnd.uscourts.gov/sites/ohnd/files/CivilRules_Rule301.pdf. 

25 Fed. R. Civ. P. 1. 
9 

A. The Committee Note Should Clarify that the Amendment Leaves the Burdens 

Between Parties Unchanged. 

Under the current Rule 30(b)(6), the burden lies with the organization to move the court 

to intervene if it disagrees with the scope of a plaintiff’s 30(b)(6) notice. The language of the 

proposed amendment does not indicate an intent to shift this burden, but it would nonetheless be 

beneficial to make clear that the burden remains with the organization. This confirmation could 

be achieved by a small change to the Draft Committee Note. Our suggestion is to amend the 

Note as follows (addition italicized): 

The duty to confer as necessary continues if needed to fulfill the requirement of 

good faith. But the conference process must be completed a reasonable time 

before the deposition is scheduled to occur. If the conference process fails to 

produce agreement between the parties, the recipient of the notice may move the 

court for a protective order under Rule 26. 

The addition of the above-proposed language, or language similar to it, would forestall 

any misinterpretations and insure that the relevant burdens between parties would remain 

unchanged. 

B. The Rule Should Indicate that the Parties Should Confer About Which 

Particular Matters Each Designated Representative Will Testify About. 

The proposed amendment currently imposes a duty to confer about the identity of each 

person the organization will designate to testify and the matters for examination. The aims of the 

amendment would be directly and substantially advanced by obliging the parties to take the next 

logical step and discuss which individuals will testify to which matters. This improvement could 

be achieved by making the following small revision to the proposed amendment (addition 

italicized): 

Before or promptly after the notice or subpoena is served, and continuing as 

necessary, the serving party and the organization must confer in good faith about 

the number and description of the matters for examination and the identity of each 

person the organization will designate to testify on each matter. 
10 

Such a modification would directly further the Subcommittee’s goal of encouraging 

“candid exchanges” in order to help “reduce the [organization’s] difficulty of identifying the 

right person to testify,” and help “avoid later disputes” that can arise when the wrong person is 

designated to testify about particular matters.26 Moreover, the amendment would make 30(b)(6) 

depositions more efficient and constructive because it would further ensure that all parties are 

adequately prepared for the deposition. 

Any added burden on the parties would be slight considering that the proposed 

amendment already requires parties to discuss the identities of the representatives and the matters 

for examination. Indeed, attorneys who are approaching the proposed amendment’s requirements 

in good faith are likely to discuss this subject anyway. In short, the addition of three words—“on 

each matter”—would simply move the parties one half-step further in the direction already 

bidden by the proposed amendment. It represents a minor, sensible enhancement to the 

amendment as written. 

CONCLUSION 

 The National Consumer Law Center and the National Association of Consumer 

Advocates support adoption of the proposed amendment for the reasons explained in Section I. 

NCLC and NACA believe the amendment could be further improved by making the two 

revisions proposed in Section II. 

 

26 Agenda Book, Committee on Rules of Practice and Procedure, June 12, 2018, at 294. 
11 

Respectfully submitted on behalf of the National Consumer Law Center and the National 

Association of Consumer Advocates. 

Stuart T. Rossman Ira Rheingold 

Director of Litigation Executive Director 

National Consumer Law Center National Association of Consumer Advocates 

7 Winthrop Square, 4th Fl. 1215 17th Street NW, 5th Floor

Boston, MA 02110 Washington, DC 20036 

(617) 542-8010 (202) 452-1989

srossman@nclc.org Ira@consumeradvocates.org 
TAB 23 

COMMENT OF 

FORD MOTOR COMPANY
FORD MOTOR COMPANY’S COMMENT TO THE ADVISORY COMMITTEE ON 

CIVIL RULES REGARDING THE PROPOSED AMENDMENT TO RULE 30(B)(6) 

January 7, 2019 

Ford Motor Company (“Ford”) appreciates the opportunity to submit this Comment on the 

proposed amendment to Federal Rule of Civil Procedure 30(b)(6) under consideration by the 

Civil Rules Advisory Committee. 

INTRODUCTION 

Ford opposes the proposed Rule 30(b)(6) changes because they do not address the long-standing 

problems with the Rule. Worse, by including a conferral requirement about witness identity, the 

proposed rule changes would substantially interfere with an organization’s existing right to 

identify its own witnesses, thereby giving rise to a whole new category of discovery abuses and 

disputes. 

In comments previously submitted to the Rule 30(b)(6) Subcommittee, Ford described its 

extensive involvement with Rule 30(b)(6) depositions, both as a plaintiff and defendant, and 

provided concrete examples of the problems it frequently must address when it receives Rule 

30(b)(6) deposition notices.1 These include: an extensive number of topics,2 vague or 

unnecessary expansive topic descriptions,3 topics with little or no connection to the matters at 

issue in the lawsuit,4 and topics so old or disconnected to Ford’s ongoing business operations that 

Ford has no information available other than old documents.5

The problems Ford identified in its prior comments frequently require Ford to seek court 

intervention to resolve the disputed issues, or they result in protracted discovery battles between 

the parties. Both of these outcomes distract the parties (and often the court) from the merits of 

the claims and simultaneously waste judicial resources and the parties’ time. Worse, justice is 

not furthered in the many situations in which the propounding party uses expansive Rule 

30(b)(6) discovery seemingly to seek a tactical advantage to force settlements not on the merits. 

In Ford’s experience, such conduct is common,6 but contrary to Rule 1. Yet the lack of 

1

 Ford Motor Company’s Comments to the Rule 30(b)(6) Subcommittee of the Advisory Committee on Civil Rules, 

July 31, 2017 (“Ford’s Subcommittee Comments”), https://www.regulations.gov/document?D=USC-RULES-CV2018-0003-0044. 

2

Id. at 3. Ford discussed a collection of 52 recent Rule 30(b)(6) deposition notices. On average, the notices set 

forth 31 topics per lawsuit, including subparts. 

3

Id. at 3-4, 6-7. 

4

Id. at 4, 7-8. 

5

Id. at 9-10. 

6

See, e.g., Gomez v. Ford Motor Co., No. SA-15-CA-00866-DAE, 2017 WL 5178043, at *4 (W.D. Tex. June 7, 

2017)(Granting in part Ford’s motion for protective order on Rule 30(b)(6) notice, noting that “plaintiffs’ request for 

information pertaining to all models dating back to 1990 is not relevant, particularly with respect to models with 
2 

guidelines and clarity in Rule 30(b)(6) leaves readers to believe openings created by the specific 

failings of Rule 30 are not to be solved by the generalities of Rule 1. The proposed Rule 

30(b)(6) change will exacerbate the problems Ford and other litigants already encounter. 

Against this backdrop of problematic Rule 30(b)(6) litigation experience, Ford is deeply 

disappointed that the proposed amendment to Rule 30(b)(6) does not address procedural gaps in 

the rule, such as the absence of a specified objection procedure or a means for addressing topics 

on which the organization has only documentary information.7 To be clear, Ford believes that 

the additional “meet and confer” specification will not solve the disputes arising from inadequate 

guidance in the rule and will do little to reduce the abusive practices that presently occur. 

Even worse, the proposed amendment’s inclusion of witness identity as a topic that the parties 

must discuss in advance of the deposition will be used to leverage settlements not on the merits 

and increase disputes. This new discovery obligation threatens to undermine the settled law and 

practitioners’ understanding that a corporation responding to a Rule 30(b)(6) notice acts with 

complete independence in selecting the person who will act as the voice of the company. 

Contrary to the wishful thinking expressed in the draft committee note that conferring about the 

identity of witnesses prior to a Rule 30(b)(6) deposition “may reduce the difficulty of identifying 

the right person to testify” and “may avoid later disputes,”8 Ford’s experience leads it to 

conclude that this requirement would instead foster disagreements between the parties and serve 

as a basis for expanded deposition demands and more motions. 

To be more blunt, the propounding party often knows exactly whom they want to answer 

questions on behalf of the organization—the weak link who cannot withstand the pressure of 

interrogation. The propounding party will fight for this deponent, citing prior testimony 

demonstrating subject matter knowledge and direct personal involvement with the matters at 

issue. For the noticing party, selection of the Rule 30(b)(6) witness is often not a search for 

information, but instead a search for a powerful sound bite that can impact the opening statement 

at trial. These are hard, unfortunate truths. Pretending these depositions involve the sincere 

different body and door structures.”); Fish v. Air & Liquid Systems Corp., No. GLR-16-496, 2017 WL 697663, at 

*1, *8 (D. Md. Feb. 21, 2017)(Ford moved for a protective order to limit the 54 areas of inquiry set forth in the Rule 

30(b)(6) notice. With regard to certain topics, the Court found “Plaintiffs were required to, but did not, serve 

discovery with relevance and proportionality in mind as they failed to request information on components and 

materials that actually have a bearing on the facts in this case.”); McDermed v. Ford Motor Co., No. 14-CV-2430-

CM-TJJ, 2016 WL 1399263, at *2 (D. Kan. Apr. 8, 2016)(Denying motion to compel Rule 30(b)(6) deposition 

where the language describing the deposition topics “is convoluted, unclear, overly broad, and does not explicitly 

identify specific topics for the deposition.”); Wolfe v. Ford Motor Co., No. 06-1217-MLB, 2008 WL 294547, at *1 -

*2 (D. Kan. Feb. 1, 2008)(Denying motion to compel Rule 30(b)(6) deposition to address lawsuits, claims and 

reports arising from other crashes of the subject vehicle model where the only information in Ford’s possession 

regarding the incidents was documentary, finding “[t]he discovery requested by plaintiffs in their Rule 30(b)(6) 

notice is unreasonably cumulative. It can also be obtained by a review of the documents previously produced by 

Ford, a source less burdensome and/or less expensive.”). 

7

 Ford’s Subcommittee Comments urged action to address these two particular circumstances, among others. See

Ford’s Subcommittee Comments at 6-10. 

8

See Committee Note to Proposed Amendment to Federal Rule of Civil Procedure 30(b)(6), Preliminary Draft of 

Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure, and the Federal Rules of 

Evidence - Request for Comment, August 2018, at 37-38. 
3 

pursuit of truth belies the numerous specific experiences Ford has addressed in the recent past.9

Creating rules, as the Committee proposes to do, that ignore the tactical leverage sought and 

exploited by the propounding party would solve nothing. Adding a requirement that the 

noticing party has a say in the person who speaks for the producing party just compounds the 

problems already inherent in Rule 30(b)(6) depositions. Moreover, it is unnecessary because a 

noticing party retains the right to seek the deposition of any person with relevant knowledge as a 

fact witness. The proposed rule would encourage the noticing party to demand a deponent be 

recast as a Rule 30(b)(6) witness simply for strategic reasons. 

1. The Committee Should Reject Any Amendment to Rule 30(b)(6) that Includes 

Witness Identification as Part of the Meet-and-Confer Requirement 

Far from being a helpful measure, Ford expects the proposed mandated discussion of witness 

identity prior to a Rule 30(b)(6) deposition will stir up disagreements between litigants, cause 

confusion in the courts, and create new grounds for discovery disputes. A requirement to confer 

about the identity of the corporate representative reverses settled law about the responsibilities of 

the parties and the function of Rule 30(b)(6) depositions. Ford urges the Committee to drop this 

concept from inclusion in any amendment to the rule.

Selecting a Rule 30(b)(6) deponent is not a casual undertaking for a responding organization. A 

Rule 30(b)(6) deposition constitutes a major evidentiary event: the party who noticed the 

deposition may use that testimony at trial for any purpose,10 and the testimony may even see use 

in other lawsuits addressing the same subject matter, as Ford has experienced.11 The witness 

selected will be the face and voice of the company on topics central to the litigation. An 

organization’s ability to direct how it will present its case is intertwined with determining who 

will give Rule 30(b)(6) testimony. For example, alternative possible witnesses may differ in 

their ability to articulate relevant concepts, to assimilate information from other sources within 

the organization, or to remain focused in the stressful atmosphere of a deposition. In Ford’s 

experience, the 30(b)(6) topics frequently involve decades-old design decisions and quite often 

there is no current employee with any meaningful personal knowledge about these issues. When 

that common circumstance occurs, Ford must select an employee who then has a challenging 

9

See, e.g., Ash v. Ford Motor Co., No. 2:06CV210-B-A, 2008 WL 1745545, at *3 (N.D. Miss. Apr. 11, 

2008)(plaintiff brought a motion to compel to force Ford to produce a particular individual as its Rule 30(b)(6) 

corporate representative); Wolfe, 2008 WL 2944547, at *1 -*2 (plaintiff moved to compel a Rule 30(b)(6) witness to 

testify regarding “the exact same documents” previously produced, despite no additional corporate knowledge being 

available). See also Ford’s Subcommittee Comments at 6-7, 11-12 (describing Rule 30(b)(6) deposition notices 

received listing vague and philosophical topics that do not focus on allegations asserted in the lawsuit and contention 

questions seeking to force corporate representatives during videotaped depositions to articulate the legal basis for 

defenses). 

10 Rule 32(a)(3)(“An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, 

was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).”)(emphasis added). 

11 Rule 32(a)(8). See also Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 751 (11th Cir. 2002)(“A deposition 

taken in a different proceeding is admissible if the party against whom it is offered was provided with an opportunity 

to examine the deponent.”); Pesterfield v. Sunbeam Corp., No. 3:00CV104, 2005 WL 1076293, at *2 (E.D. Tenn. 

May 6, 2005)(“many courts which have addressed the use of prior testimony from collateral proceedings have held 

that, where the party (or the party’s successor in interest) against whom the testimony is to be admitted had the 

motive and opportunity to develop or cross-examine the testimony, the testimony may be used in the current 

proceeding.”). 
4 

task—read all the appropriate documents and prior testimony and become the Company 

representative on topics previously unknown to that employee, and then answer questions under 

oath for hours and be targeted in a motion for sanctions if the opposing counsel claims that the 

deposition preparation was not sufficient. A party should not suffer interference from its 

litigation opponent in determining who will speak for the organization given those complexities 

and consequences. 

In light of the clear strategic importance of witness selection to the adverse party’s litigation 

position, noticing parties need little encouragement to voice demands that an individual of their 

choosing be designated as the Rule 30(b)(6) witness. Even under the current version of Rule 

30(b)(6), Ford has experienced attempts by noticing parties to force the designation of a 

particular individual. For example, in Ash v. Ford Motor Co., a plaintiff demanded that Ford 

present a particular person as its Rule 30(b)(6) witness, and even (unsuccessfully) pursued 

motions to compel and to impose sanctions when Ford refused to produce that person as its 

witness.12 The court’s rejection of that plaintiff’s position reflects the widespread consensus that 

the responding party, alone and without influence from the noticing party, decides who will 

represent the organization at a Rule 30(b)(6) deposition.13 In another recent matter, the 

requesting party’s counsel outright refused to depose the individual being offered as Ford’s 

30(b)(6) witness without any meaningful explanation or rationale. 

The proposed amendment’s witness identity conferral requirement would create a threat to the 

responding party’s ability to decide for itself who will best convey responsive information 

available to the company. Although no legal basis presently exists for a noticing party to claim 

that its views should influence the organization’s witness selection,14 the proposed amendment’s 

directive to discuss witness identity is ripe for misconstruction. Building into the rule itself the 

12 See Ash, 2008 WL 1745545, at *3 (plaintiffs demanded that Ford designate James Vondale as its Rule 30(b)(6) 

corporate representative, but the court noted that the “party seeking discovery is not permitted to insist that [the 

responding organization] choose a specific person to testify” and so “plaintiff was not entitled to insist on [Mr. 

Vondale’s] presence absent having served him with a subpoena.”). 

13 See, e.g., Quilez-Velar v. Ox Bodies, Inc., Civ. No. 12-1780(GAG/SCC), 2014 WL 12725818, at *1 (D.P.R. Jan. 

3, 2014) (“the noticed corporation alone determines the individuals who will testify on those subjects. What the 

discovering party simply cannot do is require that a specific individual respond to a Rule 30(b)(6) notice.”); 

Thompson v. Kawasaki Heavy Indus., Ltd., 291 F.R.D. 297, 304 (N.D. Iowa 2013)(“the corporation itself selects the 

deponent who will speak for it”); Lizana v. State Farm Fire & Cas. Co., No. CIV.A.108CV501LTSMTP, 2010 WL 

445658, at *2 (S.D. Miss. Feb. 1, 2010) (“it is Defendant's choice to designate its corporate representative(s) who 

consent to testify on its behalf.”); Booker v. Massachusetts Dept. of Public Health, 246 F.R.D 387, 389 (D. Mass. 

2007) (“Plaintiff may not impose his belief on Defendants as to whom to designate as a 30(B)(6) witness.”); Folwell 

v. Hernandez, 210 F.R.D. 169, 172 (M.D.N.C. 2002) (“One of the most important consequences of Rule 30(b)(6) is 

that under it, only the corporation selects the persons who will testify.”).

14 See, e.g., Merriweather v. United Parcel Service, Inc., No. 3:17-CV-349-CRS-LLK, 2018 WL 3572527, at *4 

(W.D. Ky. July 25, 2018)(“By its terms, Rule 30(b)(6) does not permit the plaintiff to designate a deponent to speak 

for the corporate defendants.”); Progress Bulk Carriers v. American Steamship Owners Mut. Prot. and Indem. Asso. 

939 F. Supp. 2d 422, 430 (S.D.N.Y. 2013) (“[Rule 30(b)(6)], however, does not permit the party issuing the notice 

to select who will testify on the organization’s behalf—which is exactly what Progress Bulk has attempted to do in 

this case.”); Colwell v. Rite Aid Corp., No. 3:07cv502, 2008 WL 11336789, at *1 (M.D. Penn. Jan. 24, 

2008)(“Nothing in the rule indicates that the party seeking the deposition can determine the identity of the person to 

be deposed.”); Dillman v. Indiana Ins. Co., No. 3:04-CV-576-S, 2007 WL 437730, at *1 (W.D. Ky. Feb. 1, 2007) 

(Rule 30(b)(6) “does not permit the plaintiff to designate a deponent to speak for the corporate defendants [and] the 

plaintiff’s attempt to do so is not appropriate.”). 
5 

requirement that “the serving party and the organization must confer in good faith about . . . the 

identity of each person the organization will designate to testify” will suggest to some lawyers 

that both noticing and responding parties must have meaningful influence and the power to 

approve witness selection. When the noticing party’s input does not result in its preferred 

witness appearing as the Rule 30(b)(6) deponent, Ford anticipates that motions asserting a failure 

to confer in good faith and to require additional depositions along with sanctions will inevitably 

follow. 

Ford sees nothing to be gained from inserting into Rule 30(b)(6) this witness identity conferral 

requirement that bears great potential for generating misunderstanding and disruption of the 

established corporate representative deposition process. Rather than considering the identity of a 

possible witness, the noticing party’s energy would be better spent developing coherent, defined 

descriptions of the corporate information sought in the deposition.15 The party who receives the 

Rule 30(b)(6) notice, not an outsider, stands in the best position to understand the distribution of 

responsive information within the organization and how to centralize that material for discussion 

at the deposition. And only the responding party can balance the personal knowledge attributes 

of different candidates with other strategic litigation considerations to “identif[y] the right person 

to testify” as the voice of the organization. Fundamentally, determining the identity of the 

person who will speak on behalf of a corporation is not a proper subject of collaboration with a 

litigation adversary. This decision is too intrinsic to the organization’s identity and too important 

to its litigation strategy to expose to interference from an opposing party. 

The proposed amendment’s witness identity conferral requirement would also create a new 

discovery obligation that serves little purpose except to breed conflict. Parties responding to a 

Rule 30(b)(6) notice have not previously needed to disclose the name of the corporate 

representative prior to the deposition. In fact, because the witness will testify regarding 

information known or reasonably available to the organization, and not the individual’s personal 

knowledge, courts have frequently declared the witness’s identity to be simply irrelevant to the 

Rule 30(b)(6) procedure.16 Even though the nature of a Rule 30(b)(6) deposition would not 

change following adoption of the proposed amendment, disclosure of information previously 

considered irrelevant to the proceeding will, with a stroke, become essential for compliance with 

the rule. 

This new conferral mandate can be expected to fuel the engines of parties motivated to pursue a 

litigation strategy based on fomenting discovery disputes rather than developing the merits of 

their position. Thus, the courts can expect motions arising from claims that the identity of the 

15 See, e.g., Ford’s Subcommittee Comments at 7 (setting forth examples of incredibly vague Rule 30(b)(6) topics 

from actual notices Ford received). 

16 See Roca Labs, Inc. v. Consumer Opinion Corp., No. 8:14-CV-2096-T-33EAJ, 2015 WL 12844307, at *2 (M.D. 

Fla. May 29, 2015)(stating “the identity of Defendants’ corporate representatives is not relevant and Defendants are 

not required to identify their Rule 30(b)(6) witnesses prior to deposition.”); Klorczyk v. Sears, Roebuck & Co., Civ. 

No. 3:13CV257 (JAM), 2015 WL 1600299, at *5 (D. Conn. Apr. 9, 2015)(“the Court will not require Sears to 

disclose the name(s) or resume(s) of its 30(b)(6) witness.”); Cruz v. Durbin, No. 2:11-CV-342-LDG-VCF, 2014 

WL 5364068, at *8 (D. Nev. Oct. 20, 2014)(“the Rule 30(b)(6) deponent’s name is irrelevant. Rule 30(b)(6) 

deponent[s] testify on behalf of the organization. See FED.R.CIV.P. 30(b)(6). Therefore, the court denies Cruz’s 

motion to compel with regard to the identify of Wabash’s Rule 30(b)(6) deponent because it seeks irrelevant 

information.”). 
6 

witness was not timely provided in advance of the deposition. Further, the identity conferral 

provision will invite disputes if the responding party changes its mind and substitutes a different 

person for a witness earlier identified. The proposed amendment implies that a responding 

organization must, at some unspecified point prior to the deposition, commit to presenting a 

particular individual as the corporate representative. The draft committee note indicates that the 

conference process, and by implication the designation of the Rule 30(b)(6) witnesses, “must be 

completed a reasonable time before the deposition is scheduled to occur.”17 But the process of 

witness preparation necessarily continues until the deposition begins, and that process sometimes 

produces unpredictable situations. In Ford’s experience, some individuals believed to be capable 

of fully digesting or describing the available corporate knowledge may, in fact, not have that 

ability. Some proposed witnesses may become reticent, even unwilling, to serve as the corporate 

representative once they fully understand what a deposition entails. And especially given that no 

employee’s primary responsibility is to sit for Rule 30(b)(6) depositions, it is common that other 

unforeseen situations occur that challenge the selection of the corporate representative. When 

circumstances requiring a change of witnesses develop under the proposed amendment, however, 

the responding party will be unable to fulfill the expectations raised by the required predeposition conferral on witness identity. Again, Ford anticipates this situation will spark more 

disagreements about compliance and, ultimately, more discovery motions. 

Inclusion of any requirement for pre-deposition conferral about the identity of Rule 30(b)(6) 

witnesses will undermine the established allocation of responsibilities, foster false expectations 

and encourage discovery squabbles necessitating court resolution. The Committee should ensure 

that no such provision goes forward. Ford believes this witness identity conferral requirement 

will be so costly, so counter-productive and will detract so substantially from the ordered 

operation of Rule 30(b)(6) that the Committee should refuse to proceed with any amendments if 

that aspect remains included in the package. 

2. Ford Expects No Meaningful Benefit from the Proposed Mandate to Meet and 

Confer Regarding the Number and Description of Rule 30(b)(6) Topics—This is 

Already Common Practice. 

The meet and confer process is familiar ground to Ford. Ford’s counsel generally engage in such 

exchanges with the noticing party when the company receives a Rule 30(b)(6) notice containing 

a range of topics that Ford considers excessive and disproportionate to the needs of a case or that 

fail to describe the topics with sufficient clarity or specificity to allow for proper witness 

preparation.18 Ford voluntarily undertakes these actions, but also recognizes that many U.S. 

District Courts direct that parties must meet and confer before a Rule 30(b)(6) dispute will 

become ripe for court attention.19

17 See Committee Note to Proposed Amendment to Federal Rule of Civil Procedure 30(b)(6), Preliminary Draft of 

Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure, and the Federal Rules of 

Evidence - Request for Comment, August 2018, at 38 (emphasis added). 

18 See, e.g., Gomez, 2017 WL 5178043, at *2 (recounting descriptions of meet and confer attempts undertaken by 

Ford’s counsel to resolve disputed Rule 30(b)(6) topic issues); Wolfe, 2008 WL 2944547, at *1 (describing 

unsuccessful conferral efforts made prior to filing of motion regarding Rule 30(b)(6) topics). 

19 See. e.g., Eagle Railcar Servs.-Roscoe, Inc. v. NGL Crude Logistics, LLC, No. 1:16-CV-0153-BL, 2018 WL 

2317696, at *13 (N.D. Tex. May 22, 2018); Goldstein v. Federal Deposit Insurance Corporation Receiver for K 

Bank, No. CIV. ELH-11-1604, 2013 WL 8446550, at *1 (D. Md. May 16, 2013); Menendez v. Wal-Mart Stores 
7 

Because in current practice parties commonly confer regarding Rule 30(b)(6) disagreements, 

inserting a mandate into the text of the rule likely will not produce a significant change. There 

may be a small number of practitioners who presently do not engage in the conferral process,20

but who would become willing to do so if conferral became an obligation. Additionally, 

knowing that the parties must confer about the number and description of deposition topics may 

encourage some noticing parties to craft their wording of the matters for examination with 

greater care and perhaps may constrain the temptation to list topics of lesser significance that 

would bloat the number of areas set out in the deposition notice. Nonetheless, because current 

practice already embraces conferral regarding discovery disagreement, Ford anticipates there 

would be no meaningful benefit from this aspect of the proposed amendment. 

Simply adding the meet and confer requirement, however, leaves the parties with an incomplete 

process. Although the parties must confer as directed, there is no guarantee that they will reach 

agreement.21 When the parties cannot resolve their differences, the amended Rule 30(b)(6) 

identifies no specific procedure for parties to raise objections or seek court intervention. Instead, 

the amendment leaves litigants in the murky realm of current Rule 30(b)(6) dispute resolution 

that varies dramatically from court to court.22 Expanding the procedural requirements of Rule 

30(b)(6) without making provisions for addressing parties’ inevitable disagreements will only 

amplify the procedural uncertainty and lead to procedural limbo. If the Committee intends to 

pursue the additional meet and confer requirements regarding the number and description of 

Rule 30(b)(6) topics, Ford urges the Committee to add a specified procedure for raising 

objections or seeking court redress. 

3. The Committee Should Reconsider Making Substantial Amendments that Would 

Provide Guidance and Address Functional Deficiencies in Rule 30(b)(6) Practice. 

E.L.P., No. 1:10-CV-00053, 2012 WL 2159186, at *2 (N.D. Ind. June 13, 2012). See also Local Rule 26.3 (M.D. 

Pa.)(“Counsel for movant in a discovery motion shall file as part of the motion a statement certifying that counsel 

has conferred with counsel for the opposing party in a good faith effort to resolve by agreement the issues raised by 

the motion without the intervention of the court, together with a detailed explanation why such agreement could not 

be reached.”); Local Rule Civ. P. 26.04(b) (N.D.W.Va.)(“”Before filing any discovery motion, including any motion 

for sanctions or for a protective order, counsel for each party shall make a good faith effort to meet in person or by 

telephone to narrow the areas of disagreement to the greatest possible extent.”). 

20 See, e.g., Ash, 2017 WL 5178043, at *2 (recounting outreach efforts undertaken to initiate meet and confer 

discussion without response from party-opponent). 

21 As even the committee note acknowledges, “[t]he obligation is to confer in good faith, consistent with Rule 1, and 

the amendment does not require the parties to reach agreement.” Committee Note to Proposed Amendment to 

Federal Rule of Civil Procedure 30(b)(6), Preliminary Draft of Proposed Amendments to the Federal Rules of 

Appellate, Bankruptcy, and Civil Procedure, and the Federal Rules of Evidence - Request for Comment, August 

2018, at 38 (emphasis added).

22 Ford’s Subcommittee Comments discuss at length the unpredictable and inconsistent direction district courts have 

given regarding the proper actions parties may take to object or engage in motions to address Rule 30(b)(6) disputes. 

See Ford’s Subcommittee Comments at 6 – 9. Additionally, comments recently submitted by Lawyers for Civil 

Justice present an extensive recitation of the widely varying, even contradictory, rulings addressing the proper 

process for objecting to problematic Rule 30(b)(6) notices or otherwise seeking court engagement to address abusive 

Rule 30(b)(6) tactics. See Lawyers for Civil Justice Comment to the Advisory Committee on Civil Rules, “Fixing 

What’s Broken: A Call for Straightforward Answers to the Questions that Regularly Confound Rule 30(b)(6) 

Practice,” Sept. 12, 2018, at 5-7. https://www.regulations.gov/document?D=USC-RULES-CV-2018-0003-0129
8 

Ford’s Subcommittee Comment from July 2017 described a number of specific aspects of Rule 

30(b)(6) practices that the company must litigate because the rule fails to provide adequate 

direction to parties.23 The Committee’s proposed amendment, however, addresses none of these 

identified flaws. Ford believes choosing the weak sauce of expanded party conferral on topics 

over the dense meat of direct fixes to demonstrated Rule 30(b)(6) problems would constitute a 

costly wasted opportunity. Rather than settle for marginal tinkering that will produce little 

practical change, other than the negative effects induced by the requirement of pre-deposition 

conferral over witness identity, the Committee should revisit concepts that would address 

operational problems in Rule 30(b)(6) practice. 

Most critically, Rule 30(b)(6) needs a clearly defined procedure for raising objections. Parties 

confronted with a notice setting forth inadequately-described or irrelevant topics, an abusive 

number of areas of inquiry, or other problematic circumstances presently can only guess at the 

acceptable action to take. Some courts accept a motion for protective order,24 while other courts 

applying the very same rule find such a motion entirely inappropriate.25 Particularly in the 

aftermath of the amendment to Rule 26 and the recognition that the pursuit of discovery has 

enforceable limits, parties should have an established procedure to raise objections and challenge 

overzealous Rule 30(b)(6) notices. As shown by the inclusion of objection procedures within 

other core discovery rules, such as Rule 33, 34, 36 and 45, the need for a defined Rule 30(b)(6) 

objection procedure is axiomatic and cannot be considered controversial. 

Additionally, Rule 30(b)(6) should contain provisions for addressing circumstances in which the 

responding organization has only documentary information or even no information at all. Ford 

frequently must litigate this situation, either because the Rule 30(b)(6) topics address matters that 

occurred in the distant past26 or because the notice addresses issues, such as the circumstances of 

motor vehicle crashes, in which Ford had no direct involvement.27 Rule 30(b)(6) deposition 

testimony in these circumstances adds no new information to the case, but imposes an 

unnecessary burden on the responding party of producing a witness simply to read or paraphrase 

for the record information contained in documents already produced. Rule 30(b)(6) should 

provide a procedure for alternate discovery methods when such circumstances arise. 

23 See Ford’s Subcommittee Comments at 4 – 12. 

24 See, e.g., Fish, 2017 WL 697663, at *1 - *2. See also Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 

F.3d 1135, 1147 (10th Cir. 2007)(“failing a negotiated resolution with [the party propounding Rule 30(b)(6) 

discovery], [the responding party] could have sought a protective order from the district court.”); Int’l Brotherhood 

of Teamsters v. Frontier Airlines, Inc., No. 11-CV-02007-MSK-KLM, 2013 WL 627149, at *6 (D. Colo. Feb. 19, 

2013) (“In the event that the parties' attempts to resolve disagreements about a Rule 30(b)(6) deposition are 

unsuccessful, filing a pre-deposition motion is the appropriate course of action.”).

25 See, e.g., Salzbach v. Hartford Ins. Co., No. 8:12-CV-01645-T-MAP, 2013 WL 12098763, at *2 (M.D. Fla. Apr. 

19, 2013)(“a protective order is not the appropriate remedy for deciding relevancy of a topic before a 30(b)(6) 

deposition.”); New World Network Ltd. v. M/V Norwegian Sea, No. 05-22916-CIV, 2007 WL 1068124, at *4 (S.D. 

Fla. Apr. 6, 2007)(“the proper operation of [Rule 30(b)(6)] does not require, and indeed does not justify, a process of 

objection and Court intervention prior to the schedule[d] deposition.”). 

26 See Ford’s Subcommittee Comments at 9 – 10 (providing examples of Rule 30(b)(6) deposition topics received by 

Ford seeking discovery of information pre-dating 1980). 

27 See, e.g., Ortiz de Valdez v. Ford Motor Co., No. DR-06-CV-0087-HLH, 2008 WL 11334969, at *1 - *2 (W.D. 

Tex. Sept. 9, 2008)(denying motion to compel production of a Rule 30(b)(6) witness to discuss information on lists 

of prior product liability claims); Wolfe, 2008 WL 294547, at *2 (denying motion to compel a Rule 30(b)(6) witness 

to testify regarding documents produced relating to lawsuits and claims). 

TAB 24 

TESTIMONY OF 

PATRICK G. SEYFERTH

BUSH SEYFERTH PAIGE PLLC
Patrick G. Seyferth

seyferth@bsplaw.com

T: 248.822.7802

F: 248.822.7802

3001 W. Big Beaver Road Suite 600 Troy Michigan 48084 T: 248.822.7800 

January 24, 2019

Advisory Committee on Civil Rules

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, NE, Suite 7-240

Washington, D.C. 20544

RE: Proposed Amendment to Federal Rule of Civil Procedure 30(b)(6)

Dear Members of the Committee:

My name is Patrick Seyferth, and I am a founding partner of the litigation law firm of Bush 

Seyferth & Paige in Troy, Michigan. I am also a member of the Defense Research Institute, a 

member of the Product Liability Advisory Council, and life member of the Sixth Circuit Judicial 

Conference. During my 23 years of practice, I’ve served as lead trial counsel—as well as lead 

discovery counsel—for a wide array of Fortune 500 Companies in catastrophic civil cases 

spanning 23 states. Accordingly, my firm and I have participated in hundreds of Rule 30(b)(6) 

depositions over the years as both defending and deposing counsel. So, like everyone here, my 

primary focus is on making discovery friendlier to the courts and respectful to the rights—and 

pocketbooks—of the litigants.

The last few decades have seen many changes to the Federal Rules. Many of those changes 

were welcomed by practitioners and courts alike. But sometimes, the pushing-and-pulling behind 

the Rule amendment process produces an inadequate solution—or, perhaps worse, a solution in 

search of a problem.

Unfortunately, a duty to confer about the identity of the corporate witness is just such a 

“solution.” Not only does this proposed duty fail to alleviate any real problem with discovery 

practice, it exacerbates the true pitfalls behind Rule 30(b)(6) and affords only greater opportunities 

for gamesmanship and collateral litigation.

While the public comments have already highlighted many of the problems with the 

proposed duty,

1

I believe that the concerns found in those comments reduce to two basic 

shortcomings.

1 See, e.g., Letter from John H. Beisner, US Chamber Institute for Legal Reform, to Rebecca A. Womeldorf, 

Secretary of the Comm. on Rules of Practice and Procedure of the Admin. Office of the United States Courts
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First, the proposal unfairly burdens an organization’s practical ability to select its most 

capable witness.2

Selecting the appropriate witness for a 30(b)(6) deposition is no simple task.3 The 

responding organization and counsel must first determine who can speak knowledgably on the 

noticed topics, and then, from that list of candidates, select a witness who can be adequately 

prepared. The noticed topics may concern facts and decisions that occurred decades ago—topics 

that no one in the organization can reasonably be expected to speak about solely from personal 

knowledge.4 The organization, then, must choose a witness that can be both educated on the 

noticed issues and explain those facts under the stress of deposition. The stakes in choosing such 

a witness are extraordinarily high. The witness will be speaking on behalf of the corporation, and 

what he or she says may be legally binding.

5

 

(August 3, 2017), https://www.regulations.gov/contentStreamer?documentId=USC-RULES-CV-2018-0003-

0038&attachmentNumber=1&contentType=pdf (“First ILR Comment”); Letter from John H. Beisner, US Chamber 

Institute for Legal Reform, to Rebecca A. Womeldorf, Secretary of the Comm. on Rules of Practice and Procedure 

of the Admin. Office of the United States Courts (June 11, 2018),

https://www.regulations.gov/contentStreamer?documentId=USC-RULES-CV-2018-0003-

0127&attachmentNumber=1&contentType=pdf (“Second ILR Comment”); Letter from Beth A. Rose & Brittany M. 

Schultz, Ford Motor Co., to Rebecca A. Womeldorf, Secretary of the Comm. on Rules of Practice and Procedure of 

the Admin. Office of the United States Courts (July 31, 2017),

https://www.regulations.gov/contentStreamer?documentId=USC-RULES-CV-2018-0003-

0044&attachmentNumber=1&contentType=pdf (“First Ford Comment”); Letter from Beth A. Rose & Brittany M. 

Schultz, Ford Motor Co., to Rebecca A. Womeldorf, Secretary of the Comm. on Rules of Practice and Procedure of 

the Admin. Office of the United States Courts (January 7, 2019), 

https://www.regulations.gov/contentStreamer?documentId=USC-RULES-CV-2018-0003-

0151&attachmentNumber=1&contentType=pdf (“Second Ford Comment”); Letter from Alex Dahl, Lawyer’s for 

Civil Justice, to Rebecca A. Womeldorf, Secretary of the Comm. on Rules of Practice and Procedure of the Admin. 

Office of the United States Courts (September 12, 2018),

https://www.regulations.gov/contentStreamer?documentId=USC-RULES-CV-2018-0003-

0129&attachmentNumber=1&contentType=pdf (“LCJ Comment”); Letter from Bruce Parker, Venable LLP, to 

Rebecca A. Womeldorf, Secretary of the Comm. on Rules of Practice and Procedure of the Admin. Office of the 

United States Courts (December 27, 2018), https://www.regulations.gov/contentStreamer?documentId=USCRULES-CV-2018-0003-0145&attachmentNumber=1&contentType=pdf.

2 Second ILR Comment at 2-4.

3 Kent Sinclair & Roger P. Fendrich, Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(b)(6) 

and Alternative Mechanisms, 50 ALA. L. REV. 651, 689 (1999).

4 Craig M. Roen & Catherine O'Connor, Don't Forget to Remember Everything: The Trouble with Rule 30(b)(6) 

Depositions, 45 U. TOL. L. REV. 29, 37 (2013); see also LCJ Comment at 3-4.

5 Resolution Tr. Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993) (“When a corporation or association 

designates a person to testify on its behalf, the corporation appears vicariously through that agent.”); Estate of 

Thompson v. Kawasaki Heavy Indus., Ltd., 291 F.R.D. 297, 304 (N.D. Iowa 2013) (“It is all the more appropriate to 

bind a corporation to the testimony of its Rule 30(b)(6) designee, where the corporation itself selects the deponent 

who will speak for it[.]”); Aldridge v. Lake Cty. Sheriff's Office, No. 11 C 3041, 2012 WL 3023340, at *3 (N.D. Ill. 

July 24, 2012) (“[T]he purpose of a Rule 30(b)(6) witness is to present the organization's position on the listed topic 

and that person, then, provides binding answers on behalf of the organization.”).
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The requirement that the parties confer about the identity of this witness “before or 

promptly after” notice puts the responding corporation in a ‘catch-22’.6 Presumably, a good faith 

conferral would require responding counsel to disclose a number of potential 30(b)(6) witnesses.

7

Because of the substantial effort behind selecting the right witness, responding organizations will, 

then, have to choose between spending enormous sums to expedite the witness-selection process 

or throwing caution to the wind and identifying potential witnesses before an adequate process can 

be had.

8

In either instance, the responding corporation will be, as a practical matter, deprived—at 

least to some limited extent—of its well-recognized right to select the appropriate witness.

9

 

Moreover, corporate parties will no longer be permitted to make “game-time” decisions; witnesses 

will have to be selected farther in advance, depriving corporate parties of the flexibility often 

needed to produce the best testimony.

But this is not the only practical obstacle entailed by the proposed duty to confer. This 

“witness identity” mandate will likely interfere with the Committee’s other proposed mandate—

that parties also meet-and-confer regarding the topics for examination.

10 Much of the witnessselection process is directed by the topics to be examined. Some witnesses will be a better choice 

than others given whatever facts must be discussed. It makes little sense, as a practical matter, to 

expect the parties to meaningfully confer about the identity of the witness while in the same 

discussion trying to negotiate the topics for examination. The likely result is an unproductive and 

unfriendly conferral, providing only further ground for bitter, needless discovery battles.

And the fear of the needless battle underlies all the practice-minded objections to the 

proposed duty. Meet-and-confers are typically ordered to resolve pending conflicts, so mandating 

a meet-and-confer, before any dispute has actually arisen, might inject conflict in an otherwise 

orderly process.

Second, the proposed duty to confer would upset established law surrounding 30(b)(6) 

witness-selection and other familiar rules of discovery.

11

A deponent organization has the exclusive right to select its witness.

12 The courts have

recognized many solid reasons for this rule. First, as a matter of efficiency, the deponent 

 

6 Fed. R. Civ. P. 30(b)(6) (Proposed Official Draft 2018); Second ILR Comment at 3.

7 Second ILR Comment at 3.

8

Id.

9 See infra note 12.

10 Fed. R. Civ. P. 30(b)(6) (Proposed Official Draft 2018); Second ILR Comment at 2.

11 Second Ford Comment at 4-5.

12 Resolution Tr. Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993) (“[Rule 30(b)(6)] places the

burden of identifying responsive witnesses for a corporation on the corporation.”); Booker v. Massachusetts

Dept. of Public Health, 246 F.R.D 387, 389 (D.Mass. 2007) (“Plaintiff may not impose his belief on Defendants as 

to whom to designate as a 30(B)(6) witness.”); Dillman v. Indiana Ins. Co., No. 3:04-CV-576-S, 2007 WL 437730, 
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organization is in the best position to decide who within it can best represent the facts that are 

expected to be known by it.

13 But apart from considerations of efficiency, it would be inherently 

unfair for the organization to be bound—that is, to be legally spoken for—by a voice handpicked 

by its legal adversary.

14 Nevertheless, the proposed amendment invites the deposing party to seize 

a role in a process in which it was never intended to play a role.

And, how would courts define the scope of this new duty, as they would inevitably be 

compelled to do? How does, for example, this new affirmative duty affect other disclosure

obligations of the responding organization, such as Rule 26(a) disclosures?15 And what rights can 

deposing parties enforce under the new language? Some may argue that the proposed language is 

not substantive enough to raise these questions. But if that’s true, then the amendment seems rather

pointless. Either the language is so substantive that it unsettles standing law, or is it so trivial that 

30(b)(6) proceeds as usual. If the latter is intended, then why amend the rule at all?

In short, the meet-and-confer requirement adds nothing “just,” “speedy,” or “inexpensive” 

to discovery practice.

16 This deficiency should concern the courts—who will have to spend more 

resources refereeing discovery skirmishes—as much as it does the litigants who will be footing 

the bill.

But there are, indeed, real problems with Rule 30(b)(6) as it stands now. I join my 

colleagues in urging this Committee to abandon the duty to confer and address the real issues 

burdening Rule 30(b)(6). 

Perhaps the most pressing issue is the lack of any rule-specified procedure for objecting to 

the noticed topics.

17 Counsel faced with a deposition notice is often saddled with a lengthy scroll 

 

at *1 (W.D. Ky. Feb. 1, 2007) (holding that Rule 30(b)(6) “does not permit the plaintiff to designate a deponent to 

speak for the corporate defendants [and] the plaintiff's attempt to do so is not appropriate”); see also 8A CHARLES 

ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 2103 (3d ed. 2013) (“[T]he party seeking 

discovery under [Rule 30(b)(6)] is not permitted to insist that it choose a specific person to testify[.]”); 7 JAMES 

WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 30.25[3](3d ed.2013) (“It is ultimately up to the

organization to choose the Rule 30(b)(6) deponent.”).

13 See Resolution, 985 F.2d at 197 (“Rule 30(b)(6) streamlines the discovery process.”); Grahl v. Circle K Stores, 

Inc., No. 2:14-CV-305-RFB-VCF, 2017 WL 3812912, at *4 (D. Nev. Aug. 31, 2017) (“The purpose of this 

requirement is to enable the responding organization to identify the person who is best situated to answer questions 

about the matter, or to make sure that the person selected to testify is able to respond regarding that matter.”) 

(internal quotation marks omitted).

14 See supra note 12.

15 Fed R. Civ. P. 26(a)(1)(A) (requiring parties to disclose, inter alia, “the name and, if known, the address and 

telephone number of each individual likely to have discoverable information--along with the subjects of that 

information--that the disclosing party may use to support its claims or defenses”).

16 See Fed R. Civ. P. 1. 

17 LCJ Comment at 5-7; First ILR Comment at 4-7; Second Ford Comment at 8.
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of vaguely worded topics without any clear recourse in the Rules.

18 The Rules’ silence, here, has 

left practitioners with chaotic case law. In some jurisdictions, the only remedy for responding

organizations is to move for a Rule 26(c) protective order.19 In others, courts have announced that 

such motions are unwelcome.20 Responding counsel should not have to grapple with diverging sets 

of case law in order to lodge a simple objection. Courts should not be forced to deal with such a 

fundamental issue on an ad hoc basis, either. Recent reforms to Rules 33, 45, and so on, have 

shown that simple objection procedures can provide fair and efficient results.21 The same is true 

for Rule 35.

The principal goal behind amending the Rules should be to bring our federal courts closer 

to the “speedy,” “just,” and efficient system envisioned in Rule 1.22 I fear, however, like many of 

my colleagues, that this Committee’s proposal will do just the opposite. For all these reasons, I 

urge this Committee to excise the duty to confer from its proposal and act on the issues that matter.

Sincerely,

Patrick G. Seyferth

Bush Seyferth & Paige PLLC

 

18 See First Ford Comment at 3 (noting that the number of topics noticed in the average Ford product liability case 

exceeds the number of interrogatories allowed under Rule 33).

19 See, e.g., Gomez v. Ford Motor Co., No. SA-15-CA-00866-DAE, 2017 WL 5178043, at *4 (W.D. Tex. June 7,

2017) (granting in part Ford’s protective order and criticizing the broad scope of the noticed topics); Fish v. Air & 

Liquid Sys. Corp., No. CV GLR-16-496, 2017 WL 697663, at *1-2 (D. Md. Feb. 21, 2017) (same).

20 See, e.g., Salzbach v. Hartford Ins. Co. of the Midwest, No. 8:12-CV-01645-T-MAP, 2013 WL 12098763, at *2 

(M.D. Fla. Apr. 19, 2013) (“[A] protective order is not the appropriate remedy for deciding relevancy of a topic 

before a 30(b)(6) deposition.”); Direct Gen. Ins. Co. v. Indian Harbor Ins. Co., No. 14-20050-CIV, 2015 WL 

12745536, at *2 (S.D. Fla. Jan. 29, 2015) (“[A]n advance ruling on relevance or any other objection is not 

appropriate under Rule 26.”). 

21 Second Ford Comment at 8.

22 Fed. R. Civ. P. 1. (“[The Rules] should be construed, administered, and employed by the court and the parties to 

secure the just, speedy, and inexpensive determination of every action and proceeding.”).
TAB 25 

COMMENT OF 

MICHAEL L. SLACK

SLACK DAVIS SANGER, LLP
January 22, 2019

VIA EMAIL

Rules Committee Staff

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E., Room 7-240

Washington, DC 20544

Michael L. Slack

Austin Office

mslack@slackdavis.com

Re: Comments on Proposed Amendments to Federal Rule of Civil Procedure 30(b)(6)

Dear Members of the Civil Rules Advisory Committee:

My firm and I represent plaintiffs against large airlines and multi-national and foreign manufacturers with 

complex organizational structures. We litigate in both federal and state courts in the United States.

In the post-Daimler environment, we frequently must engage in discovery on procedural challenges to 

personal jurisdiction and motions to dismiss under forum non conveniens before we get to discovery on 

the merits. Discovery can be a long and dreary path to ultimately secure the 20-30 most salient 

documents and to identify the 2-3 most important corporate historians for a given event, usually a 

catastrophic aircraft crash.

To combat discovery obfuscation in written discovery and to minimize the expenditure of considerable 

wasted resources securing meaningful discovery we rely heavily on Rule 30(b)(6) and its state court 

counterparts.

There are two essential features that Rule 30(b)(6) brings to discovery: opposing party accountability in 

discovery and efficiency in securing the necessary information with the least waste of time. Besides the 

above-mentioned procedural hurdles that we frequently face in aviation litigation, we frequently are 

seeking to discover similar occurrences, knowledge or awareness of the defendant of a product defect or 

unsafe practices, control over vendors and suppliers and what the defendant did to investigate and correct 

the defect or unsafe practice. With foreign and multi-national companies, the evidence we seek is often 

claimed by defendants to be in the possession of company divisions situated in foreign countries.

Rule 30(b)(6) is the one discovery tool that singularly forces accountability and promotes efficiency over 

the alternative discovery options.

1. We believe that a corporation facing a Rule 30(b)(6) deposition is less likely to be evasive in

written discovery because the properly prepared corporate witness can be used to illuminate the

incompleteness and evasiveness of responses to document requests and interrogatories. In our

experience, a Rule 30(b)(6) deposition transcript is usually a spot “cure” for evasiveness and will

often eliminate the need for a motion to compel.

2. Ordinary oral depositions are undermined by “I don’t know” answers which are unacceptable and

carry severe consequences to the corporation under Rule 30(b)(6). An “I don’t know” response

by a designated Rule 30(b)(6) corporate witness to a well-asked liability question can be fatal to
Rules Committee Staff

January 22, 2019

Page 2

___________________

the defendant. Rule 30(b)(6) is by far the best available discovery tool for securing meaningful 

discovery with the least investment of resources. 

3. Specifically, with respect to identifying the most knowledgeable subject-matter witnesses within 

the organization, Rule 30(b)(6) is immeasurably better at identifying the most relevant individuals 

to be deposed on specific topics. It is also most useful in establishing how the corporation 

disseminates information internally, maintains its records and what personnel have access to 

technical as well as management documents.

4. Rule 30(b)(6) allows the plaintiff to elicit corporate knowledge and information not easily 

ascertained by alternate forms of discovery. When “I don’t know” has negative consequences to 

the corporation for an evasive answer, the quality of the discovery product improves significantly.

These are a few of the features of Rule 30(b)(6) that make it the most useful and impactful discovery tool 

a plaintiff has in efficiently and effectively securing the essential discovery needed for both procedural 

and substantive issues.

I look forward to testifying before the Committee.

Sincerely,

SLACK DAVIS SANGER, LLP

Michael L. Slack

MLS/rel
TAB 26 

TESTIMONY AND COMMENT OF 

DONALD H. SLAVIK

SLAVIK LAW FIRM, LLC 
From: dslavik@slavik.us

To: RulesCommittee Secretary

Subject: Rule 30(b)6 hearing February 8, 2019

Date: Friday, January 25, 2019 8:02:00 PM

Attachments: image001.png

image002.png

Dear Secretary:

Per the request for a short statement of the anticipated focus of my testimony, please accept the

following:

I plan to testify in accordance with the comments to the Propose Rule changes I filed earlier. In

addition, I hope to address any questions of the committee members, especially with regards to the

practicality of the proposed meet and confer requirements, the identification in advance to the

witness(es) who are offered to give testimony, why limits on the number of topics would be an

impediment to an efficient method of conducting discovery, and why limiting the types of questions

being asked would also be inefficient. Having taken seven 30(b)6 depositions in the last two weeks, I

should be able to answer any questions as to the practicalities of how they are conducted and why

the proposed changes to the rule will help.

Thanks for the opportunity to testify in two weeks.

Donald H. Slavik, Esq.

Slavik Law Firm, LLC

dslavik@slavik.us (c) 414-899-1197 (o) 970-457-1011 (d) 949-269-4284

2955 Village Drive, Suite 16, Steamboat Springs, CO 80487-2147

Licensed in CO, TX, WA and WI Prof. Engr. (Ret.) in WI

P Before printing, please think about the environment.

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LIMITED LIABILITY COMPANY: Slavik Law Firm, LLC is a Colorado Limited Liability Company, pursuant to Colorado Statutes 7-80-101

et seq. Slavik Law Firm, LLC maintains professional liability insurance to cover its acts and those of its members and employees.


TAB 27 

COMMENT OF

ANDREW J. TRASK
Trask - 1 

Comment of Andrew J. Trask on 

Proposed Amendments to Federal Rule of Civil Procedure 30(b)(6) 

 Thank you for the opportunity to comment on the proposed amendment to Rule 

30(b)(6). I currently practice law as Of Counsel at Shook, Hardy & Bacon, where I focus my 

practice on complex litigation and litigation-oriented public policy. I offer this comment in 

my personal capacity; the views I express here are my own, and do not necessarily 

represent Shook’s views on the proposed Rule change.1 I base my comments below on my 

twenty years of experience defending corporations in complex litigation (which has included 

preparation and defense of numerous depositions under Rule 30(b)(6), but also based on 

research for a book on litigation strategy and tactics to be published next year by 

Cambridge University Press. 

 I am aware this Committee has received numerous comments on its proposed 

amendments to Rule 30(b)(6), and various potential reforms it declined to adopt in 

proposing that amendment. Instead of reiterating positions that have already been made 

by other commentators, I wish to focus on two areas where the proposed amendments are 

likely to prompt further gamesmanship and conflict in the conduct of Rule 30(b)(6) 

depositions. 

Questions Beyond the Scope of the Notice

 Under the current version of Rule 30(b)(6), parties taking the depositions will often 

ask questions beyond the scope of the original deposition notice. A few of these questions 

may be natural follow-ups to information disclosed during the deposition, but many are not. 

Instead, many of these questions are designed to elicit a corporate statement on a matter of 

legal interpretation, or commit the corporation to a hypothetical course of action, or engage 

some other form of “expert” opinion.2 I have attended numerous depositions where 

plaintiffs’ counsel have employed this tactic. 

 There is no current remedy for this tactic. Courts have consistently held that 

counsel may not instruct a witness not to answer questions outside the scope of the notice.3 

These courts have reasoned that treating out-of-scope questions as binding only on the 

witness and not the corporation is sufficient.4 Moreover, at the time of deposition, most 

lawyers encountering this tactic do not want to risk a court’s ire by delaying the deposition 

to challenge the practice. 

 Allowing the noticing party to have input into who testifies on behalf of an 

organization will encourage counsel to ask more questions outside the scope of the 30(b)(6) 

 

1 I understand that Shook, Hardy & Bacon has submitted its own comment on the proposed changes. 

2 See, e.g., Boyer v. Reed Smith, LLP, 2013 WL 5724046 (W.D. Wash. Oct. 21, 2013) (compliance with 

internal policy not a proper topic for Rule 30(b)(6) deposition); Hund v. Smith & Nephew, Inc., 2011 

WL 13217730, *2 (D.S.C. Jul. 28, 2011) (refusing to allow additional deposition time when 

questioning went “beyond the topics listed in the deposition notice and falls squarely within the type 

of expert opinion testimony that the court found to be inappropriate”).

3 See, e.g., Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727, 730 (D. Mass. 1985); EEOC v. 

Freeman, 288 F.R.D. 92, 99 (D. Md. 2012). 

4 See, e.g., King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). 
Trask - 2 

notice. Based on current practices, counsel will leap at the opportunity to put specific 

witnesses “on the spot” to obtain potential sound bites in support of their case, even if they 

would not expend a full 30(b)(1) deposition on the effort. While the current practice has not 

resulted in many disputes before courts, expanded attempts to probe beyond the scope will 

encourage those defending 30(b)(6) depositions to seek protective orders ahead of time, or to 

issue instructions that will inevitably lead to subsequent motions to compel. Either way, 

the propose amendment will lead to further conflict. 

Sidestepping Deposition Limits

 Rule 30 limits each party to ten depositions. Parties already use broad, multi-topic 

30(b)(6) notices to ensure that multiple witnesses testify in a “single” Rule 30(b)(6) 

deposition. As a result, the Rule 30(b)(6) notice already operates as a means of exceeding 

the deposition limit set forth in the Federal Rules. 

 Moreover, deposing counsel often ask 30(b)(6) witnesses questions about their 

specific positions and responsibilities, and those questions often move beyond simple 

background and into factual matters not specified in the deposition notice. Some of these 

questions are legitimate; it makes sense to probe into what a corporate representative 

knows from their own experience versus what they know only secondhand. But many of 

these questions can push far enough that the witness becomes, for a substantial part of the 

deposition, a de facto 30(b)(1) witness. 

 The proposed amendment again allows an expansion of this tactic. By serving an 

extensive notice with multiple topics, that would require multiple witnesses to fulfill, 

lobbying for specific witnesses to testify, and then asking those witnesses questions about 

their own knowledge, counsel can effectively ignore the ten-witness limit imposed by Rule 

30.5 As described above, defending counsel may not instruct a witness not to answer; 

instead the answer only binds the witness. But that limitation will not deter counsel who 

have lobbied for a particular 30(b)(6) witness because they wish to depose them in their 

personal capacity. 

 

 The tactics I describe are not speculative. I have seen them firsthand under the 

current version of Rule 30(b)(6), and (as the footnotes describe) they are common enough 

that one can find examples in reported opinions. It is clear that the proposed amendment 

to the Rule, coupled with courts’ current rulings, will not only allow these tactics to 

continue, but enable them to work even more effectively. This is one of many reasons why 

the proposed amendment to Rule 30(b)(6) will not reduce conflict or promote efficiency or 

fairness. 

 

 

5 See, e.g., Peshlakai v. Ruiz, 2014 WL 459650, *6-8 (D.N.M. Jan. 9. 2014) (counsel tried to use 

30(b)(6) notice to get “second bite” at previously deposed fact witnesses). 
TAB 28 

COMMENT OF

SEYFARTH SHAW LLP










TAB 29 

TESTIMONY OF

HASSAN A. ZAVAREEI

TYCKO & ZAVAREEI LLP
Advisory Committee on Civil Rules January 24, 2019 

Administrative Office of the United States Courts 

Thurgood Marshall Federal Judiciary Building 

One Columbus Circle, N.E. 

Room 7-240

Washington, DC 20544 

Re: Comments on Proposed Amendments to Federal Rule of Civil Procedure 30(b)(6) 

Dear Committee Secretary and Members: 

I appreciate the opportunity to present testimony regarding the Proposed Amendments to 

Rule 30(b)(6), and commend the Advisory Committee for its efforts at drafting amendments that are 

fair, balanced, and address many of the concerns raised during the informal comment period. 

My comments are informed by 23 years of experience as a civil litigator, including seven 

years at Gibson, Dunn & Crutcher LLP and 16 years as a partner at Tycko & Zavareei LLP, a 

private public interest law firm that represents a wide range of clients, including individuals fighting 

for their civil rights, consumers seeking redress for unfair business practices, whistleblowers 

exposing fraud and corruption, and non-profit entities and businesses facing difficult litigation. 

Throughout my years in litigation, I have taken and defended many 30(b)(6) depositions, and 

have become familiar with the challenges they often present. 30(b)(6) depositions are an essential 

tool for eliciting crucial information regarding entities’ structure, leadership, policies, and practices.

The information obtained from a 30(b)(6) deposition can lay the groundwork for all future

discovery, and in the class action context, can be determinative with respect to whether a class is 

ultimately certified. Thus, it is vital that any amendments to Rule 30(b)(6) be carefully crafted to 

achieve a fair balance between the interests of noticing and responding parties. Based on my 

experience, I believe that requiring advance notice of the identity of witnesses will make the 

discovery process more efficient, transparent, and fair. Further, I believe that requiring the parties to 

confer regarding the number of matters for examination will distract from the ultimate goal of 

30(b)(6) depositions by creating unnecessary conflict and delay.

I. Requiring Advance Notice of the Identity of Witnesses Will Advance the

Discovery Rules’ Goal of Promoting the Fair, Speedy, and Just Resolution of

Cases.

Requiring parties to confer regarding the identity of witnesses will maximize the usefulness

of depositions by allowing noticing parties to focus their questions appropriately. For instance, a 
Advisory Committee on Civil Rules

January 24, 2019

Page 2 of 3

noticing party that is informed in advance of a witness’s identity may be able to simply confirm the 

witness’s background, experience, and position before quickly moving on to more substantive topics. 

Relatedly, a noticing party that has at least some basic information regarding the witness’s role at the 

company may be more inclined and/or able to limit its inquiry to the topics and documents that are 

most essential. 

Notably, entities may, and often do, designate multiple 30(b)(6) witnesses. When this occurs, 

noticing parties are especially hindered by not knowing the identity of each witness, as they cannot 

direct their questions towards the witness who may be most qualified to answer. This leads to longer 

and less effective depositions, as well as frustration on the part of both parties. Further, from a 

purely practical perspective, when a witness is designated as both a 30(b)(6) corporate witness and a 

30(b)(1) individual witness, the parties cannot coordinate in advance regarding scheduling and travel 

unless the identity of witness is disclosed. 

Requiring advance notice of the identity of witnesses will also help prevent common abuses 

of the discovery process. For instance, corporations often designate witnesses that lack knowledge 

on the relevant subject matter in order to cause delay and put financial pressure on relatively underresourced plaintiffs. Corporations also frequently designate unqualified witnesses in order to gain 

insight into plaintiffs’ deposition strategy so that future, more qualified witnesses may benefit from 

this knowledge. Finally, corporations regularly fail to disclose the identity of their witnesses until just 

before a deposition is scheduled to occur, thus depriving the noticing party of the ability to 

adequately prepare. All of these tactics increase the cost and delay associated with depositions and 

unfairly burden the noticing party. 

To ensure that Rule 30(b)(6) continues to promote the important goals of fairness and 

efficiency, the Rule must contain a requirement that the identity of witnesses be disclosed in 

advance. 

Some of the comments submitted in response to the Proposed Amendments argue that the 

witness disclosure requirement will allow noticing parties to block witnesses they perceive to be 

particularly effective spokespeople for their organizations. This concern is without merit. The text of 

the Proposed Rule explicitly states that a 30(b)(6) witness is a person that “the organization 

designates” to testify. The Draft Committee Note further clarifies that “the named organization 

ultimately has the right to select its designees.” Indeed, a party’s choice of 30(b)(6) witness is solely 

within its own discretion and control, and the noticing party may not dictate in any way who the 

witness should be. If removing the word “ultimately” will help allay concerns and/or reduce 

confusion regarding who the choice of witness belongs to, the Committee should consider doing so.
Advisory Committee on Civil Rules

January 24, 2019

Page 3 of 3

II. Requiring Parties to Confer Regarding the Number of Matters for Examination 

Will Distract from the Substance of Depositions and Create Unnecessary Conflict 

Requiring parties to discuss in advance the number of topics for examination will allow 

corporations to obstruct noticing parties’ reasonable requests by creating an opening for the noticed 

party to argue that the noticing party is asking for too much. In reality, the number of relevant 

deposition topics will vary widely from case to case. For instance, the complexity or procedural 

posture of a particular case may necessitate a more searching inquiry. Additionally, it is often 

necessary for noticing parties to ask unanticipated follow-up questions during the course of a 

deposition, especially when faced with an uncooperative witness. Requiring a discussion of the 

number of topics for examination beforehand will provide corporations with an opportunity to

object to such questions on the basis that they will increase the number of topics beyond that which 

was previously agreed upon. Relatedly, requiring parties to discuss numbers in advance will invite 

unnecessary gamesmanship. A list of ten topics can be easily manipulated into five broader topics, or 

fifteen more specific topics, for instance. 

Given that noticing parties already “must describe with reasonable particularity the matters 

for examination,” the requirement to confer regarding numbers is redundant, elevates form over 

substance, and encourages parties to focus on arbitrary and meaningless metrics.

* * *

Thank you for your time and attention, and please do not hesitate to contact me should you 

need any additional information.

Respectfully Submitted,

Hassan A. Zavareei 
TAB 30 

COMMENT OF

TERRENCE M. R. ZIC

WHITEFORD, TAYLOR & PRESTON LLP



TAB 31 

COMMENT OF

THOMAS C. REGAN

LECLAIRRYAN 
E -ma i l : T h oma s . R e g a n @ l e c l a i r r y a n . c om

D i r e c t P h o n e : ( 9 7 3 ) 4 9 1 - 3 3 6 0

D i r e c t F a x : ( 9 7 3 ) 4 9 1 - 3 5 6 9

1 0 3 7 R a ymo n d B o u l e v a r d , S i x t e e n t h F l o o r

N e w a r k , N e w J e r s e y 0 7 1 0 2

T h oma s C . R e g a n , A t t o r n e y I n C h a r g e

P h o n e : ( 9 7 3 ) 4 9 1 - 3 6 0 0 \ F a x : ( 9 7 3 ) 4 9 1 - 3 5 5 5

CALIFORNIA \ CONNECTICUT \ DELAWARE \ FLORIDA \ GEORGIA \ ILLINOIS \ MARYLAND \ MASSACHUSETTS \ MICHIGAN \ NEW JERSEY

NEW YORK \ PENNSYLVANIA \ RHODE ISLAND \ TEXAS \ VIRGINIA \ WASHINGTON, D.C.

January 25, 2019

David G. Campbell, Chair

Committee on Rules of Practice and

Procedure of the Judicial Conference of the

United States

Submitted electronically to

https://www.regulations.gov/docket?D=US

C-RULES-CV-2018-0003

Re: Proposed changes to F.R.C.P. 30(b)(6)

Procedure for Conducting Depositions of Corporate Representatives

Dear Mr. Campbell:

I am a Member of LeClairRyan, an AmLaw 200 firm employing approximately

300 attorneys in 25 offices in 14 states. I serve the Firm as a practicing attorney familiar

with both state and federal practice in 3 states (New Jersey, Pennsylvania, and

Tennessee), as the partner in charge of the New Jersey and Philadelphia, Pennsylvania

offices, and as the Practice Area Team Leader for the Products Liability and

Transportation team that comprises approximately 40% of the litigation group. I am

slated to become the Litigation Department Leader before the end of the quarter.

We have followed with interest the Committee’s two year process for amending

the Rule in an effort to improve workflow and reduce delay associated with the

production of corporate representatives for deposition. There are few experienced

practitioners in the federal courts who would disagree with the need for amendment. 

The current rule is divisive and is far less explicit than other civil rules. The sheer

frequency with which this rule is used begs for amendment and clarity. 

The federal courts have done yeoman’s work in attempting to fill the gaps in the

current rule. Local rules of practice and a strong Magistrate Judge can prevent many

disagreements from getting out of control. However, amending the rule to prevent the

disagreements in the first place is an excellent use of the Committee’s time. We thank

the Committee for its hard work in attempting to create a better framework. Still, we

believe some of the changes proposed are ill-fated, while some changes that were not
David G. Campbell, Chair

January 25, 2019

Page 2

included would be more conducive to the stated purpose of the Committee. Below, we

outline where we believe the Committee’s good faith efforts will actually cause more

disagreement than they resolve and where we believe the Committee’s amendment

proposal could better further its goals.

I. Introduction.

As a preface to our suggestions below, we would like to provide the benefit of our

own experience in the federal courts as it relates to Rule 30(b)(6). Like most rules,

30(b)(6) works well in a significant percentage of civil cases filed in the federal courts. 

Although the system is adversarial, our colleagues in the bar take their oaths of

professionalism and duties of courtesy to heart. Further, most cases filed before the

federal courts are of such value that gamesmanship and nitpicking do not carry a return

on investment, and so the process of choosing a corporate representative for deposition

often proceeds without significant interference. However, a not insignificant portion of

the cases filed in the federal courts do face obstacles in the smooth development of

discovery through a corporate witness.

The federal courts are open to practice to attorneys licensed in the jurisdiction,

and thus the bar in those courts run the gamut from very inexperienced to veterans of

years of practice before the courts. We are concerned that the changes to the rule

proposed will invite gamesmanship and actually cause more disagreements than they

prevent. We believe this to be so regardless of what category of experience plaintiff’s

counsel falls into, because the rule both expands the ability of a veteran practitioner to

attempt to influence the choice of witness and suggests to the inexperienced

practitioner that he or she may do so. Further, the lack of finality to the rule, coupled

with the lack of notice requirements and connections to the other related rules, raises

the concern of multiple, additional touchpoints required to involve the court in mediating

a dispute between counsel over what can be a very simple process.

II. Change to Meet and Confer Requirement Invites Gamesmanship.

a. Requiring Parties to Meet and Confer Regarding Identity of Witnesses.

The Committee clearly considered the issues related to the meet and confer

requirements inserted into the rule. Respectfully, while those considerations are evident

from the language of the rule, including a meet and confer requirement regarding the

identity of the witnesses while simultaneously reminding counsel in the Rule and the

Committee Note that the choice of witness ultimately lies with defense counsel

producing the witness is internally inconsistent and is likely to immediately cause
David G. Campbell, Chair

January 25, 2019

Page 3

issues. The Committee tried to implement the change without upsetting well-settled law

in every Circuit, but imposing this requirement is a radical mandate of change that can

only lead to disagreement and gamesmanship.

What purpose is served by forcing defense counsel to discuss with counsel for

the plaintiff (or noticing party) the identity of the witness to be produced, if in the end it is

defense counsel’s1 choice regardless of that discussion? Counsel is required under the

amendment to meet and confer in good faith. Given the statements in the current and

proposed rule and the Committee Note that the choice of witness remains exclusively

with defense counsel, it calls into question what conduct would qualify as bad faith, so

long as the witness identified is the witness produced, even over the most vociferous of

objections from the noticing party. 

Introducing the identification of the 30(b)(6) witness into the meet and confer

requirement also creates an illusory leverage point during the meet and confer process. 

For example, if there is a legitimate negotiation to be undertaken on a specific category

of inquiry, we foresee some counsel would attempt to leverage that issue in order to

elicit a concession on the identity of the corporate witness. The fact that the witness

produced need not be agreed upon does not prevent it from being leveraged by the

other side. We believe the inconsistency in the language, and the fact that inserting the

identification in this process is such a radical change, combine to invite this kind of

behavior.

The Draft Committee Note suggests that “discussion about the identity of

persons to be designated to testify may avoid later disputes,” but it seemingly ignores

the present disputes it is creating. Admittedly, if there is agreement reached in the meet

and confer process regarding the identity of witnesses, it will “avoid later disputes”

regarding that person’s identity. However, it will not prevent a later dispute if adverse

counsel believes the person produced was inadequately prepared to respond to the list

of matters for examination or was not the person most qualified to so respond, thus

providing an inferior level of information than what was requested. It will also generate

more disputes at the beginning of the process, which are perhaps not present in the

current iteration of the rule.

What is absent from the reporting, in our view, is why the topic of the identity of

the witnesses should be present in the meet and confer requirement at all. Indeed, the

1 For the purposes of this letter, the term “defense counsel” is intended to mean counsel for the party

producing the witness pursuant to FRCP 30(b)(6). We recognize that in commercial litigation and other

contexts, a notice under the rule might be served on plaintiff or a non-party, but we landed on “defense

counsel” for ease of use.
David G. Campbell, Chair

January 25, 2019

Page 4

only relevant gain from adding this requirement that we can see is for the preparation of

the noticing party to take the deposition of the specific witness. Research into the

background of the witness could potentially reveal bias or other information that would

not otherwise be available to the questioner if the identity of the witness were not

discussed in advance. The rule in this regard falls short of its intention in two ways. 

First, a 30(b)(6) witness is produced in order to answer questions for the company. 

That witness’ personal information should be less relevant than a fact or expert witness

would be. Indeed, at its core, the 30(b)(6) witness is the company, and so the particular

witness chosen should largely be irrelevant, so long as the witness can dutifully answer

the questions posed in the categories agreed upon in the meet and confer process. 

Second, assuming the policy behind the change to the rule is legitimate, the same

information can be conveyed in a notice in response. Changing the rule to require a

certain time period’s notice to the other parties of the identity of the witness who will be

produced would resolve the issue of forcing the noticing party to prepare in the dark and

prevent the implicit suggestion that the noticing party has some control over who is

produced.

b. Failure to Limit the Meet and Confer Requirement. 

Once again, having reviewed the May 11, 2018 Report of the Advisory

Committee, it is clear that the Committee engaged in a thoughtful process in noting that

it may require more than one conference call or meeting to resolve the issues related to

the topics to be discussed and the identity of witnesses. We agree that having more

than one conference may (perhaps counterintuitively) lead to a more efficient process. 

Often, when a FRCP 30(b)(6) notice is received, there are either many topics to be

covered that will require more than one witness or, as is often the case with less

experienced practitioners, one or more topics that are so hopelessly broad, it is

impossible for defense counsel to reasonably respond with an appropriately prepared

witness or witnesses. Likewise, an initial discussion may prove fruitful in identifying

more specific categories of information, some of which may not be within the knowledge

of any corporate witness. The iterations of such notices through a meet and confer

process would certainly be a more efficient use of time than trying to respond in a single

meeting to all the issues that might arise. It is anathema to the process to assume that

defense counsel will have all of the information needed to properly assess whether the

company has the requisite knowledge to respond in the context of a deposition. We

therefore fully agree that more than one meet and confer conference should be

anticipate by the rule.

Simply, we believe that the “continuing if necessary” language chosen has the

possibility of breeding endless conversation without any clear delineation of when the
David G. Campbell, Chair

January 25, 2019

Page 5

good faith requirement to meet and confer ceases. Largely, this issue relates more to

the above requirement of conferring on the identity of the witnesses than it does the

categories of inquiry. We anticipate, for example, that continued objections to the

chosen individual(s) would lengthen this process, and that the “continuing if necessary”

language can be leveraged by either inexperienced or exploitative counsel to interfere

with the process. We recommend, therefore, that the language reflect that the meet

and confer requirement should continue until either agreement or an impasse is

reached as to the categories of inquiry, and that, if no changes are made to the section

regarding identity of witnesses, that the language reflect that the requirement terminates

when the witnesses are chosen by defense counsel. Such a change as to the identity

of witnesses would further reinforce the notion that defense counsel is exclusively

responsible for choosing the witness or witnesses, and that such decision is not the

subject of debate and discourse, either at the outset or “continuing if necessary.”

III. Missing Changes Would Foster Fewer Disagreements.

a. Clear Notice Requirements Are Needed.

The amended Rule 30(b)(6) continues to maintain the absence of any notice

requirement within the rule. More often than not, this issue can be worked out through

counsel, particularly if short notice is provided for reasons that are readily apparent to all

involved, such as a court order allowing only a brief extension of time. However, the

lack of a presumptive notice requirement is often the cause of significant consternation

right at the outset of the process. 

We have personally experienced 30(b)(6) notices that contained dozens of lines

of inquiry and gave only ten days’ notice of the scheduling of the deposition. Simply

determining the universe of who the relevant witnesses could be can take longer than

ten days. The new rule now adds the meet and confer requirement that will “continue if

necessary” on categories and identification, but it still provides no notice requirement. 

Without a clear requirement, there is no balance for the work involved. The noticing

party need only fire off the 30(b)(6) notice and respond to a meet and confer inquiry,

and it can cause havoc for the adversaries who have no recourse other than filing a

motion for a protective order. If the rule, as amended, included a presumptive notice

requirement of 30 days, which would match up with other such requirements in the

FRCP, e.g. FRCP 33, 34 and 36, it would ease that imbalance, be cognizant that a

30(b)(6) notice adds a level of complexity because the witness needs to be located, and

continue the laudable theme throughout the rules that the discovery process is intended

to be fair to all litigants.
David G. Campbell, Chair

January 25, 2019

Page 6

b. Clear Links to Other Rules Are Needed.

Perhaps the ramification of Rule 30(b)(6) that is the least consistent in application

and leads to the most confusion is the lack of reference to the presumptive limits on the

number and duration of depositions contained in Rule 30(d). Rule 30(d) sets forth that a

deposition is limited to seven hours in duration, absent leave of court. The Committee

Note provides that each person designated by the company should be considered a

separate deposition for purposes of the durational limit. The proposed amended rule

does not change the absence of specific reference in 30(b)(6) to 30(d), despite the

Note’s change to the rule. 

The approach outlined in the Committee Note penalizes the corporation for

designating specialized witnesses. Rather than easing the burden of discovery, this

approach instead incentivizes the company to present a single, omnibus witness who

may not be in the best position to provide meaningful testimony.

We urge the Committee to make clear that the durational limits in Rule 30(d)

apply to depositions noticed under Rule 30(b)(6). Parties benefit from more targeted

depositions of people from the company with more specialized knowledge. If the sheer

number of categories results in the number of witnesses becoming unwieldy, Rule 30(d)

already provides the solution in that the durational limit is presumptive, “unless

otherwise stipulated or ordered by the court.” 

Finally, on this topic, we urge the Committee to proscribe questioning that relates

to the materials reviewed in anticipation of the deposition or the legal contentions of the

company. This type of questioning, in the context of a 30(b)(6) deposition, is far more

akin to the questioning of an expert than it is a percipient witness. While a corporate

representative may be the person most knowledgeable regarding a particular topic (like

an expert), it is likely that the witness relied on documents that were collected and

presented by counsel. The Third Circuit determined in Sprock v. Peil, 759 F.2d 312,

318 (3d Cir. 1985) that “proper preparation of a client’s case demands that a lawyer

assemble information, sift what he considers to be the relevant from the irrelevant facts,

prepare his legal theories and plan his strategy without undue influence and needless

interference.” Questions leading down this path are undoubtedly intended to reveal this

strategy, either directly or in the negative space of documents that were omitted. 

Similar to the preclusion on discovery of consulting experts and draft expert reports in

Rule 26, Rule 30(b)(6) should protect work product from such inquiries in the context of

the deposition of a corporate representative.

c. Procedure for Lack of Knowledge.
David G. Campbell, Chair

January 25, 2019

Page 7

Finally, Rule 30(b)(6) lacks a clear process for objecting to the notice, particularly

in instances where the corporation lacks the knowledge required to adequately respond

to some or all of the categories in the notice. The only avenue in the rules in this

situation is motion practice, but courts are split on whether that should occur as a

motion for a protective order before the deposition (e.g. West Virginia and Colorado) or

as an objection to a subsequent motion to compel (e.g. Florida.) This circumstance

creates a trap for the unwary, particularly in cases where the noticing party has taken

advantage of the Rule’s lack of notice requirements.

Under the current scheme, in the absence of a protective order, what will often

happen is someone within the company will be designated as the corporate witness. 

He or she will be presented in response to the 30(b)(6) notice after reviewing whatever

corporate records are still available and attempting to digest the information. In

essence, Rule 30(b)(6) will operate to force the company to create a witness or face

sanctions for not responding to the notice. Indeed, this scenario also leads to

arguments that the witness is not the correct person or does not have the requisite

knowledge to be an appropriate witness.

Rule 30(b)(6) can cut through this issue by permitting a company receiving a

notice to respond to it, when it has no witness who can reasonably and meaningfully

testify as to the facts sought, by forwarding the documents upon which the witness

would likely rely and certify that the documents represent the universe of knowledge

that is currently in the company’s possession, custody and control. No purpose is

served by essentially having a company employee recite information that is only in the

documents being relied upon.

Conclusion.

The federal courts provide consistency across jurisdiction that more and more

leads to attorneys crossing state lines to protect their clients in federal court. The

consistency of the rules is imperative to ensuring that the fairness afforded by the

federal courts is available to foreign defendants. 

It is not difficult to imagine the following scenario where counsel for a corporation

who is resident and normally practices in Florida, where no objections to a 30(b)(6)

notice is permitted before the deposition, handling a matter in federal court in West

Virginia or Colorado, where case law requires a motion for a protective order to be filed

before the deposition, being served with a Rule 30(b)(6) notice with 60 categories of

inquiry for a deposition that is set to occur in seven days. With the proposed changes to

Rule 30(b)(6), within that week:
David G. Campbell, Chair

January 25, 2019

Page 8

 Deliver the notice to the client and confer with the client

concerning the originally proposed topics to be covered and

what witness or witnesses might be appropriate,

 Marshal the documents to be used to prepare the witness

for deposition, based on the categories that are in flux,

because counsel also must,

 Meet and confer on the topics included in the notice,

including any topics for which the company has no witness

with knowledge,

 Return to the client, assuming some agreement has been

reached on the topics, to determine who the proper

corporate representatives should be,

 Meet and confer again with counsel on the identity of the

corporate representatives, and continuing if necessary,

particularly on the topics for which the corporation has no

person with knowledge or the representatives chosen, even

though the noticing party has no say in the representatives

chosen,

 File a motion for a protective order before the deposition in

order to limit the categories for which there is no witness

and/or are irrelevant or otherwise improper,

 Likely file a motion to stay the deposition notice until such

time as the motion for a protective order is decided,

 Argue the motion for a protective order, including

references to the fact that no witness with knowledge of

certain topics exists, with no guarantee that it will carry the

day,

 Prepare the witness(es) for the deposition without any

protection of the work product required to do so,
David G. Campbell, Chair

January 25, 2019

Page 9

 Appear for and defend the depositions, up to 7 hours for

each designated representative, even if that representative

is doing nothing more than reading from the documents.

The rules are not solely designed to protect noticing parties, any more than they

are designed to only be implemented by the AmLaw 100 or 200. The above list of

action items does not include, for example, arranging for transportation to and from the

site of the deposition, re-arranging schedules of other appearances in other cases or

lawyers to cover those appearances, or any of the other myriad things that would be

required in order to drop everything and apply the resources required to get everything

on that list done in a week. And it assumes a level of available headcount that is not

necessarily accurate.

The above is an admittedly contrived scenario, but it is neither impossible nor

particularly unlikely to occur. We are all in agreement that Rule 30(b)(6) is in need of

amendment. Unfortunately, despite the hard work of the Committee, there is more work

that needs to be done to effectuate a fair revision of the Rule that responds to the

various concerns that the current version raises.

We thank the Committee for the opportunity to respond to the proposed

amendments to the rule and for its hard work in reviewing the rule and proposing a

solution.

Sincerely,

Thomas C. Regan

Attorney at Law
TAB 32 

COMMENT OF

DYKEMA GOSSETT PLLC
Dykema Gossett PLLC 

1301 K Street NW 

Suite 1100 West 

Washington, DC 20005 

WWW.DYKEMA.COM

Tel: (202) 906-8600 

Fax: (202) 906-8669 

Terri S. Reiskin

Direct Dial: (202) 906-8609 

Direct Fax: (855) 216-7884 

Email: TReiskin@dykema.com 

California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

January 28, 2019 

Re: Comments on Proposed Amendment to Federal Rule of Civil Procedure 30(b)(6) 

Dear Members of the Civil Rules Advisory Committee: 

The following comments are respectfully submitted on behalf of Dykema Gossett PLLC, a 

national law firm with offices and over 100 litigators in California, Illinois, Michigan, 

Minnesota, Texas, and the District of Columbia. 

I have been litigating cases in federal courts around the country for more than thirty years. I 

concentrate on product liability litigation, including individual cases and class actions. I have 

served as national, regional and local counsel, including in MDLs, and have tried more than a 

dozen cases to verdict. I have responded to Fed. R. Civ. P. 30(b)(6) notices on behalf of 

numerous corporate clients, and have been involved in negotiating topics, drafting objections, 

motions practice, and preparation and presentation of Fed. R. Civ. P. 30(b)(6) witnesses on many 

occasions. 

The Firm’s comments are not provided on behalf of any particular client, but, rather, reflect my 

own observations and those of many of my litigation partners, who frequently represent 

organizational parties in a variety of types of litigation, including class action, commercial, and 

tort cases. The Firm opposes the proposed amendment to Fed. R. Civ. P. 30(b)(6) in its entirety 

and submits that if the Committee is to undertake the potentially disruptive step of amending the 

organizational deponent rule, it should do so in a manner that is scrupulously fair to plaintiffs 

and defendants, and addresses the very real problems the Rule raises, rather than creating new 

ones. The proposed amendment is a solution in search of a problem, and does nothing to address 

the real issues with the Rule. 

Advisory Committee on Civil Rules 

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building 

One Columbus Circle, N.E. 

Room 7-240 

Washington, DC 20544 
Advisory Committee on Civil Rules 

January 28, 2019 

Page 2 

California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

On February 8, 2019, I will be testifying before the Advisory Committee on Civil Rules on the 

proposed amendments. My testimony will be based on the comments set forth below. 

A. Fed. R. Civ. P. 30(b)(6) was intended to bind an organization to answers under oath 

via a human “spokesperson,” not to elicit testimony based on firsthand knowledge. 

Fed. R. Civ. P. 30(b)(6) was added in 1970 as part of a general overhaul of deposition procedures 

in the context of liberalizing civil discovery. Modeled closely on a Canadian rule, it was 

described as "an added facility for discovery, one which may be advantageous to both sides as 

well as an improvement to the deposition process."1 The intent was to improve the process of 

deposing an organization by: 

 Relieving a requesting party of the burden of identifying the correct witness in an 

organization2 and reducing the possibility of unintentionally taking the deposition of a 

person who lacked managerial capacity, i.e., the capacity to bind the organization; 3

 Eliminating the ability of an organization to field multiple managerial personnel who 

might each in turn disclaim knowledge of facts clearly known by someone within the 

organization ("bandying");4

 Protecting organizations from excessive depositions of managerial personnel driven by a 

lack of knowledge of who precisely should be deposed;5 and 

 Overriding decisions of some federal courts to the effect that a company should not be 

burdened with identifying someone to speak for it. 

On balance, Fed. R. Civ. P. 30(b)(6) is intended to “streamline” discovery.6

The rule has been untouched for almost 50 years, though almost everything else about civil 

litigation has changed greatly in that time span. As formulated at the beginning – and now – the 

rule sets forth a mechanism by which the party seeking information states subject matters "with 

1

 Advisory Committee Note to 1970 Amendment to Fed. R. Civ. P. 30., cited by 7 

Moore’s Federal Practice - Civil § 3.03 (Matthew Bender, 2018). 

2

Id.; see also David J. Blair, A Guide to the New Federal Discovery Practice, 21 Drake 

L. Rev. 58, 67-68 (1971). 

3

Id.

4

Id.; see also Federal Deposit Insur. Co. v. Butcher, 116 F.R.D. 196, 199 (E.D. Tenn. 

1986).

5

 William B. Jones, Proposed Amendments to Rules 30, 33, 34 & 37, Federal Rules of 

Civil Procedures, 1968 A.B.A. Sec. Ins. Negl. & Comp. L. Proc. 595, 597 (1968). 

6

Resolution Trust Corp. v. S. Union Co., Inc., 985 F.2d 196, 197 (5th Cir. 1993). 
Advisory Committee on Civil Rules 

January 28, 2019 

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California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

reasonable particularity," and the responding party "must designate one or more officers, 

directors, or managing agents, or designate other people who consent to testify on its behalf."7

This last clause is particularly significant because it allows any person (assuming he or she will 

cooperate) to act as the spokesperson for the organization. This same language recognizes that 

just as an organization (depending on its type) may be an artificial person under the law, a 

30(b)(6) witness may be a “synthetic” witness: one who may have to be educated – even from 

zero – on the subject matters in the notice of deposition. 

Fed. R. Civ. P. 30(b)(6) gives the requesting party the opportunity to understand an 

organization’s 

 knowledge of, and positions on, the subjects in the notice;8

 interpretations of facts, its subjective beliefs, and its opinions;9 and 

 interpretations of documents and events on behalf of the corporation.10

Under Fed. R. Civ. P. 30(b)(6), the responding party must provide someone who can answer the 

questions.11 Because this person speaks for the organization, the organization must have the right 

to control the identification process. 

B. An organization’s right to name its own witnesses lies at the heart of the rule, 

rightfully so, and has not led to significant problems. 

Over the past 50 years, litigants and courts have struggled to arrive at a functional set of 

principles that fill in the gaps in the current Fed. R. Civ. P. 30(b)(6), or at least to determine the 

limits of its flexibility. The lack of a presumptive limit on the number of topics in a notice, 

whether multiple notices can issue to a single organization despite the rule’s language that only 

one such deposition may be noticed as of right, what constitutes a reasonable level of 

particularity, and, more recently, what is proportional to the needs of the case, all are issues 

litigators face on a regular basis. 

7

 Fed. R. Civ. P. 30(b)(6). 

8 Great Am. Insur. Co. of New York v. Vegas Const. Co., Inc., 251 F.R.D. 534, 538 (D. 

Nev. 2008); United States v. Mass. Indus. Finance Agency, 162 F.R.D. 410, 412 (D. Mass. 

1995); Lapenna v. Upjohn Co., 110 F.R.D. 15, 21 (E.D. Pa. 1986). 

9

Lapenna, 110 F.R.D. at 20. 

10 Ierardi v. Lorillard, Inc., No. 90-7049, 1991 U.S. Dist. LEXIS 11320, at *5 (E.D. Pa. 

Aug. 13, 1991). 

11 QBE Ins. Corp. v. Jorda Enters., 277 F.R.D. 676, 688 (S.D. Fla. 2012). 
Advisory Committee on Civil Rules 

January 28, 2019 

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California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

It is the open-ended nature of the rule that has caused conflict. As we pointed out in our original 

comments to the Committee,12 30(b)(6) depositions present an unbalanced framework that is 

unusually favorable to requesting parties and frequently puts the onus on responding parties to 

establish limits on overbroad topics and to prepare to testify on whatever cannot be limited by 

negotiation or court action. These real-world problems would best be addressed through 

modifications to Fed. R. Civ. P. 16 and 26(f), by presumptive limits on the number of topics 

permitted, and by a more explicit objection/resolution mechanism in Fed. R. Civ. P. 30(b)(6) 

that – like relevance under Fed. R. Civ. P. 26(b) – puts the onus on the requesting party to justify 

the relevance and particularity of its topics (which would bring things in line with principles of 

written discovery).13

The difficulties presented by existing Fed. R. Civ. P. 30(b)(6) are reflected in thousands of 

published and unpublished opinions. These evidence parties’ disagreements on how many topics 

are too many, how the time limits in Fed. R. Civ. P. 30(d) may or may not apply in situations 

where multiple people are presented in response to the same notice, whether a deposition is 

impermissibly wandering outside the topic list,14 whether a person presented as a corporate 

designee can be deposed again in a "non-designee" capacity, and what should happen when a 

designee is unprepared to testify on a topic in the notice, such as putting up another witness or 

propounding interrogatories.15

By contrast, the case law does not reflect much dispute about the actual identity of the corporate 

representative witness or judicial discussion about why the identity of a designee would be an 

issue. The rule does not make this a legitimate bone of contention, and as long as the topics – as 

written or modified by the parties or the court – are addressed, the rule functions as intended.

C. A meet-and-confer process on witness identity would not solve any real-world 

problem, but it does threaten to create new ones. 

12 See Comments of Clay Guise, Dykema Gossett PLLC, dated August 2, 2017, 

https://www.uscourts.gov/rules-policies/archives/suggestions/clay-guise-17-cv-hhhhh (retrieved 

January 10, 2019) 

13 Other helpful measures would include (i) clarifying the relationship between 30(b)(6) 

and 30(a) and (d); (ii) constraining the use of contention questions; and (iii) providing an explicit 

means under Fed. R. Civ. P. 26(e) by which to supplement designee testimony. 

14 Contrast Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 729-730 (D. Mass. 1985) 

(notice defines scope) with Cabot Corp. v. Yamulla Enters., 194 F.R.D. 499, 500 (M.D. Pa. 

2000) and Detoy v. City & County of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000) 

(counsel may object to topic outside notice at deposition, but deponent must answer questions to 

extent of Fed. R. Civ. P. 26(b)(1)). 

15 See, e.g., Alexander v. FBI, 186 F.R.D. 137, 141-142 (D.D.C. 1998). 
Advisory Committee on Civil Rules 

January 28, 2019 

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California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

The first aspect of the proposed amendment, as discussed below, presents three problems. First, 

the language of the rule is fundamentally at odds with the logic of the Committee Note, creating 

the potential for confusion or conflict right out of the box. Second, giving a requesting party any 

say regarding the quality or desirability of a particular person as an organizational designee 

fundamentally would change the nature of Fed. R. Civ. P. 30(b)(6). Finally, giving adversaries 

windows into tentative picks for designee witnesses would require the responding parties to 

reveal information that traditionally has been protected by attorney-client privilege and the workproduct doctrine. 

1. As the Committee Itself Recognizes, There is No Identifiable Problem that 

Meeting and Conferring on Witness Identity Would Actually Solve. 

As noted in Section B, above, Fed. R. Civ. P. 30(b)(6) presents its share of real-world 

difficulties: the amount of notice, the breadth of the topics, and deposition drift once the 

testimony is underway. Instead of focusing on these issues, the proposed amendment creates new 

problems for taking and defending organizational depositions. The Committee acknowledges 

that "the named organization ultimately has the right to select its designees," and yet makes 

reference to a meet-and-confer being potentially beneficial in "avoid[ing] later disputes." This 

treatment begs three questions. 

What is the purpose of an amendment that is undercut by its own Committee Note? At a high 

level, a meet-and-confer is pointless if witness identity, as a matter of law, is a unilateral 

decision. The simple answer here is that there is no point to adding a mandatory “collaborative” 

process if at the end of the day, the responding party still has absolute authority to identify the 

individual who will speak for and bind the organization in a deposition under Fed. R. Civ. P. 

30(b)(6). When the amendment’s language is undercut by the Committee’s own note, there will 

surely be disputes over what the language really means. The Committee itself struggles to 

articulate the reason for the amendment and how it should be understood in the context of 

retaining the sole right of the receiving party to determine who will speak for it. Litigators who 

choose to make trouble through discovery will have a field day, and discovery motions practice 

will inevitably ensue. 

Where a common problem is witness knowledge, why would prior discussion of witness identity

prevent an actionable “future problem”? The “later disputes” that would arise in the designee 

context revolve around preparedness on certain topics, and they tend to come up while a 

deposition is underway. Though the intent may be to improve the chances of having a witness 

with the proper foundation to testify, there is no guarantee that prior discussion of the who would 

be calculated to foresee, and therefore prevent, disputes about the what – especially when the 

“who” discussion could in itself create significant inefficiencies. It is the organization’s 

responsibility in any event to field the correct witness(es). Moreover, gaps in subject matter 
Advisory Committee on Civil Rules 

January 28, 2019 

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California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

knowledge are often resolved by producing additional personnel to fill in the gap under the 

structure of the rule: requestors will get someone who can answer their questions. 

Is it actually possible to head off future disputes? Parties can think that they understand the 

topics in a notice, and the noticed party can think it has the right person. But many corporate 

designee difficulties arise at the deposition itself. There is nothing in the proposed amendment to 

address this situation, nor is there any reason to think that a meet and confer that includes 

discussion of the identity of witnesses will help avoid it. Indeed, the opposite is likely, as 

representations made in the context of the meet and confer will inevitably be compared with the 

witness’s actual performance at deposition, leading to further disputes and the opportunity for 

mischief. 

2. Requiring discussion of witness identity would change the relationship of 

Fed. R. Civ. P. 30(b)(6) to fact depositions and give requesting parties an 

unwarranted advantage. 

Parties propounding corporate deposition notices have powerful incentives to interfere in the 

selection of the designees. Between an inability of the responding party to object on relevance at 

a deposition, and the ability of parties under Fed. R. Civ. P. 32(a)(3) to use a corporate designee 

testimony “for any purpose,” adding an ability to influence designee selection would incentivize 

requesting parties to steer toward “soft targets.” The current structure of Fed. R. Civ. P. 30(b)(6) 

provides some protection against this by allowing the responding party to select the “face of the 

company” – and so to try to limit the risks associated with preparation and conduct of these 

depositions. Further, the requesting party could use the meet and confer process to demand the 

identities of other potentially knowledgeable witnesses it can then notice individually for 

deposition. This “free discovery” would almost certainly be yet another unintended consequence 

of the proposed amendment. 

That requesting parties are not given a “free throw” on their own witness selection is not an 

injustice, let alone one identified by federal courts. Rather, allowing requesting parties to intrude 

on the process of witness selection represents a major change and reverses almost 50 years of 

practice in which the rule has not been concerned about who answers a question put to the 

organization but rather that some human witness be available to answer it and thereby bind the 

entity. The proposed amendment is not a correction or a fine-tuning to obviate commonplace 

disagreements about corporate representative depositions (described above); it upsets the bargain 

struck when Fed. R. Civ. P. 30(b)(6) was enacted in 1970. 

3. Giving an adversary a voice in witness selection increases burdens, wastes 

time, and impinges on privilege and work product. 
Advisory Committee on Civil Rules 

January 28, 2019 

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California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

Organizations often receive deposition notices with large numbers of disparate topics. These 

topics often cover complex subjects and long periods of time. Even if these are limited by 

negotiation or protective orders, it can still be a challenge to locate, prepare, and schedule 

witnesses on numerous topics. Injecting prior discussion – “as early as possible” – puts 

additional constraints on a process that is already challenging. 

Parties responding to 30(b)(6) notices must find people who either know or can learn the subject 

matter. This process – which can take significant amounts of time and effort – demands 

flexibility because the identification of who will testify and the topics they will address 

frequently changes. The likelihood of changes increases with the number and complexity of 

topics in the notice. In many cases, it is impossible to know if a witness is able to handle a 

particular topic until the preparation process is well under way. Or, during this process, a new 

person may be identified who is better-suited to handle a particular topic than the person 

originally identified. As a result, even if it were proper for a requesting party to intrude on the 

process to ask about identities, there would be little practical point in doing so early on. But these 

are minor considerations compared to the biggest issue, which is that such a rule would override 

the “near[ly] absolute protection” that the “mental impressions, conclusions, opinion, or legal 

theory of an attorney or other representative of a party concerning the litigation” have vis-à-vis 

adversaries.16 This lies at the heart of the work product doctrine. Discussion of “tentative picks” 

implicates Fed. R. Civ. P. 26(b)(3), which immunizes written versions of the same information 

from discovery. And if “tentative picks” are not what the Committee had in mind in drafting the 

proposed amendment, what purpose is to be served by the requirement? In almost every case, the 

main topic of any meet and confer is the clarification or narrowing of the topics. What exactly is 

the noticing party seeking to learn? Is there a more limited way to frame the topic that will get to 

the crux of the issues and permit a rational selection of witnesses? The initial meeting almost 

surely will not get to the issue of identity of witnesses, which can only be ascertained once the 

threshold questions are answered. The proposed amendment thus effectively requires multiple 

meet and confer sessions – adding burden without any obvious benefit – until both parties are 

satisfied that the vague standard of “good faith” has been met. This creates more fertile ground 

for disputes. 

D. The Amendment’s meet and confer is duplicative of existing federal dispute 

resolution mechanisms, provides no useful resolution process or remedy, and only 

adds the potential for considerable confusion. 

16 In re Cendant Securities Litigation, 343 F.3d 658, 663 (3d Cir. 2003); see also Duplan 

Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1219 (4th Cir. 1976) (opinion work product 

protection also attaches to non-lawyers). 
Advisory Committee on Civil Rules 

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California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

Looking at the Amendment from another angle, its inclusion of meet-and-confer language in 

general (whether it is witness identification or topics) is superfluous and has the potential to 

inject considerable confusion into the discovery process. This is due to the fact that the 

mechanism for resolving any dispute related to the language of Fed. R. Civ. P. 30(b)(6) is 

already in place. Depending on the jurisdiction, problems with a corporate representative notice 

are usually handled through one of two mechanisms. 

First, some federal courts have concluded that given the lack of explicit objection language in the 

rule – and the inability to object to relevance issues in a designee’s deposition – a responding 

party must file a motion for protective order under Fed. R. Civ. P. 26(c)(3).17 That rule explicitly 

requires a meet and confer (“the motion must include a certification that the movant has in good 

faith conferred or attempted to confer with other affected parties to resolve the matter without 

court action”). 

Second, other federal courts recognize objections and motions to compel as an additional 

mechanism for resolving disputes about depositions of corporate designees.18 Fed. R. Civ. P. 

37(a)(1) contains an almost identical meet-and-confer requirement (“The motion must include a 

certification that the movant has in good faith conferred or attempted to confer with other 

affected parties in an effort to obtain it without court action”), and the use of objections and a 

motion to compel is thus essentially a mirror image of filing a motion for protective order – the 

major difference being which party makes the first move. 

Regardless of which mirror-image solution is chosen, numerous Federal District Courts and their 

judges have refined and further defined what a “meet and confer” means, what the parties should 

bring to the court, and how disputes will be resolved. While the process is far from uniform and 

clear – a problem not addressed by the proposed amendment, solutions have emerged through 

local rules19 and judicial practice guides.20 These “barriers to entry” in consuming judicial 

17 New England Carpenters Health Benefits Fund v. First Databank, Inc., 242 F.R.D. 

164, 166 (D. Mass. 2007). 

18 Princeton Digital Image Corp. v. Ubisoft Entertainment SA et al., No. 13-335-LPSCJB, 2018 U.S. Dist. LEXIS 66802 (D. Del. April 20, 2018); see also San Diego Unified Port 

Dis. v. Monsanto Co., No. 15-cv-0578-WQH-AGS, U.S. Dist. LEXIS 130197 (S.D. Cal. August 

2, 2018). 

19 For example, E.D. Mich. LR 7.1 elaborates on the certifications required to file a 

contested motion, LR 26.4 provides the requirements for protective orders, and LR 37.1 imposed 

additional meet and confer requirements on motions to compel. 

20 In the same district, Judge Mark A. Goldsmith’s Practice Guidelines, for example, 

require personal contact or communication in writing, or a certification of non-responsiveness. 
Advisory Committee on Civil Rules 

January 28, 2019 

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California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. 

resources cause many discovery disputes to be significantly narrowed before a court intervenes. 

Aside from that, there are mechanisms for referrals of discovery disputes to magistrate judges 

under Fed. R. Civ. P. 72 and to special masters under recently-enacted Fed. R. Civ. P. 53. 

In other words, the framework (if not the uniform applicability) of dispute resolution is already 

in place. It has been our experience that if parties are inclined to cooperate to resolve discovery 

issues, as many parties are, they will do so. And they would do so even absent the structure of 

the federal rules – because every motion carries its own risk/benefit analysis. Cooperation is 

endorsed by both the defense and plaintiffs’ bars, courts, and discovery think tanks.21 If parties 

cannot or will not cooperate on an issue, or cannot narrow their legitimate disputes further, the 

only resolution will be judicial. 

This is not the case with the proposed Amendment, which references “meet[ing] and 

confer[ring]” twice – but not once explaining what the end result of failing to meet and confer 

will be, or how that result would be reached. The proposed Amendment thus goes too far and not 

far enough. It is fatally flawed and should be withdrawn. 

Conclusion 

For all of these reasons, we urge the Committee to decline the proposed Amendment. 

Sincerely, 

DYKEMA GOSSETTPLLC

Terri S. Reiskin 

Terri S. Reiskin 

See https://www.mied.uscourts.gov/index.cfm?pageFunction=chambers&judgeid=33# (retrieved 

January 7, 2019). 

21 See generally, the Sedona Conference Cooperation Proclamation (July 2008) 

(endorsed by numerous federal judges and magistrate judges). 
TAB 33 

COMMENT OF

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SAN FRANCISCO 

SILICON VALLEY 

SAN DIEGO 

LOS ANGELES 

TAIWAN 

BOSTON 

HOUSTON 

AUSTIN 

HANOI 

HO CHI MINH CITY 

COMMENT 

to the 

COMMITTEE ON CIVIL RULES REGARDING RULE 30(B)(6) 

January 30, 2019 

I respectfully submit this Comment to the Advisory Committee on Civil Rules 

(“Committee”) in response to the Request for Comment on the proposed amendment to Federal 

Rule of Civil Procedure 30(b)(6) (“Proposed Amendment”). I write on behalf of my firm, Duane 

Morris, LLP. This letter draws on the collective experience of our many litigators at Duane 

Morris, who represent organizational clients as both plaintiffs and defendants. 

I. Introduction

The Proposed Amendment is the culmination of the Committee’s most recent attempt to 

address problems with Rule 30(b)(6). As the Committee observed over two years ago, the 

application of Rule 30(b)(6) causes problems “constantly, all over the country.”1

 Although it was 

concerned that “[i]t will be difficult to find rule text that will encourage reasonable practice,” the 

Committee resolved that it “should at least try.”2

Unfortunately, the Proposed Amendment not only falls short of the Committee’s goal, but 

it will make the existing situation even worse. The only way to mitigate the uncertainty and 

needless disputes concerning the existing Rule is to amend it to include specific guidance to 

practitioners – including on how respondents can make objections; how much notice is required 

before a deposition; and how Rule 30(b)(6) depositions count toward the presumptive limits that 

apply to depositions generally. The Committee considered and, unfortunately, rejected proposals 

that would provide such guidance. 

1

 Report to the Standing Committee, Advisory Committee on Civil Rules (May 12, 2016) at 41. 

2 Id.
Page 2 

Instead, the Proposed Amendment imposes a vague yet mandatory requirement that 

counsel “confer in good faith” about both “the number and description of the matters for 

examination” as well as “the identity of each person the organization will designate to testify.” 

The Proposed Amendment is both ineffective and harmful. Without the specific guidance that the 

Committee has declined to incorporate into the Proposed Amendment, a requirement that 

counsel “confer in good faith” will merely serve as a trigger for more disputes. It will also 

encourage those litigants who champion “discovery on discovery” to pressure the opposing party 

to settle and add to the cost of litigation. The problem with the existing rule is not that counsel do 

not know how to meet and confer; it is that counsel need more specific guidance about the 

standards that apply to their disputes. 

More importantly, the Proposed Amendment’s requirement that the parties meet and 

confer about the identity of the deponent will have significant unintended consequences. To the 

extent that the Proposed Amendment is intended to change the existing rule that the respondent 

has discretion to choose its Rule 30(b)(6) deponent, the Proposed Amendment is grossly unfair 

to respondents. To the extent that the Proposed Amendment is not intended to change the 

existing rule, imposing a requirement that the parties meet and confer about something that 

remains within the discretion of the respondent is nothing more than a source of additional 

confusion and litigation. 

I suggest the Committee reconsider its decision to not include specific guidance in the 

Proposed Amendment – particularly with respect to the procedure for objections; a specific 

notice requirement; and the limits that apply to Rule 30(b)(6) depositions. To the extent the 

Committee declines to do so, I respectfully urge the Committee to reject the Proposed 

Amendment. It is better to leave Rule 30(b)(6) as it is than to adopt an amendment that, at best, 

will result in more uncertainty and needless litigation, and that is likely to cause significant 

unfairness to respondents. 

II. The proposed amendment will be ineffective at reducing uncertainty and needless 

litigation. 

As this Committee has recognized, Rule 30(b)(6) has “become a flash point for litigation” 

that has generated 8,300 decisions and counting.3

 Unfortunately, the Proposed Amendment’s 

requirement that counsel “confer in good faith” does nothing to alleviate the uncertainty in how 

Rule 30(b)(6) is applied. It will therefore do nothing to stem the tide of litigation over Rule 

30(b)(6), and, if anything, will only give counsel another procedural requirement to litigate. 

 

3

 Agenda for the Advisory Committee of Civil Rules (April 25–26, 2017), Lauren Gailey Memorandum (“Gailey 

Memo”), at 249. 
Page 3 

In my experience, the problem with Rule 30(b)(6) is not that counsel are refusing to 

confer about proposed deposition topics or logistics in advance of a Rule 30(b)(6) deposition.4

The problem is that the Rule does not give enough guidance to practitioners, such that 

disagreements between counsel must be resolved by courts, which are often inconsistent in their 

decisions. With no guidance in Rule 30(b)(6) regarding the procedures or expectations of the 

meet and confer, parties may not confer in good faith to resolve issues related to the scope of the 

notice, or may agree to limits on the notice but ask questions beyond the agreed to scope of the 

notice at the deposition. These issues are particularly disconcerting in litigation where one side is 

a corporation and the opposing party is an individual or group of individuals. 

Including a specific procedure for objections: 

For instance, one of the most basic problems with Rule 30(b)(6) is that it includes no 

clear process for pre-deposition objections to topics contained in the deposition notice. 5 Some 

courts require litigants to seek a protective order before the deposition.6

 Other courts take the 

opposite approach, and go so far as to hold that parties must not involve the court before the 

deposition.7

 In those jurisdictions, the responding party must assert objections to the notice and 

proceed with the deposition without seeking relief from the court. At the deposition, the party 

then must either provide the requested information despite the objections or refuse to do so and 

face a motion to compel after the deposition. Depending on the result of that motion, the 

deposition could be re-opened later with the concomitant costs. The party bringing the motion to 

compel also faces needless risks, as an unsuccessful motion could lead to an award of attorney’s 

fees. This is a wholly inefficient process for resolving disputes. 

 

4 See Agenda for the Advisory Committee on Civil Rules (November 7, 2017) at 174 (recognizing the “existing 

reality” that “the parties often work out the details on which some of the rule proposals considered by the 

Subcommittee have focused.”) 

5 See, e.g., New England Carpenters Health Benefits Fund v. First DataBank, Inc., 242 F.R.D. 164, 165–66 (D. 

Mass. 2007) (“Unlike the procedure with respect to interrogatories, requests for production of documents and 

requests for admissions, there is no provision in the rules which provides for a party whose deposition is noticed to 

serve objections so as to be able to avoid providing the requested discovery until an order compelling discovery is 

issued.”). 

6 See, e.g., id. at 166 (“[A] party who for one reason or another does not wish to comply with a notice of deposition 

must seek a protective order.”); Int’l Bhd. of Teamsters, Airline Div. v. Frontier Airlines, Inc., No. 11-2007, 2013 

WL 627149, at *6 (D. Colo. Feb. 19, 2013) (“In the event that the parties' attempts to resolve disagreements about a 

Rule 30(b)(6) deposition are unsuccessful, filing a pre-deposition motion is the appropriate course of action.”); and 

Reese v. Miami-Dade Cty., No. 01-3766, 2009 WL 10668208, at *1 (S.D. Fla. June 16, 2009) (“[I]f counsel believes 

a deposition notice seeking a corporate representative is improper, it is his burden to seek a protective order.”). 

7 See, e.g., F.D.I.C. v. Brudnicki, No. 12-00398, 2013 WL 5814494, at *2 (N.D. Fla. Oct. 29, 2013) (finding that 

“proper operation of the rule does not require a process of objection and Court intervention prior to the deposition” 

and that proper course is for propounding party to “seek to compel additional answers if necessary, following the 

deposition regarding disputed topic designations”); Salzbach v. Hartford Ins. Co., No. 8-01645, 2013 WL 

12098763, at *2 (M.D. Fla. April 19, 2013) (“[A] protective order is not the appropriate remedy for deciding 

relevancy of a topic before a 30(b)(6) deposition.”). 
Page 4 

A recent multiple-plaintiff personal injury case, in which I represented a corporate 

defendant, illustrates these inefficiencies. Plaintiffs’ counsel served an overly broad notice of 

deposition upon the corporation, designating topics that went far beyond the scope of the 

litigation. Among other things, the notice included improper topics designed solely to probe the 

corporation’s relationship with several non-parties, most likely in an attempt to locate the deepest 

pocket. At a meet-and-confer before the deposition, Plaintiffs’ counsel agreed to limit the scope 

of questioning at the deposition. However, at the deposition, Plaintiffs’ counsel nonetheless 

asked numerous objectionable questions. This forced a decision at the deposition to either allow 

the improper questioning, instruct our client’s corporate designee to not answer the improper 

questions (which could lead to a motion to compel), or to terminate the deposition and file a 

motion for protective order (which could result in additional travel and preparation costs if 

unsuccessful). Having a procedure to resolve objections in advance of the deposition would 

remedy this type of problem. 

Establishing a process for pre-deposition objections would be more efficient and effective 

at encouraging counsel to resolve their disputes over deposition topics than a vague requirement 

that they “confer.” Indeed, expressly providing responding counsel the opportunity to serve precomplaint objections would make a separate requirement to “confer” unnecessary. As the 

Committee previously recognized, “[o]ne advantage of adopting an express objection procedure 

would be to require the parties to meet and confer before a motion to compel is made.”8

Conversely, requiring that parties “confer” without providing a mechanism for objections only 

adds to existing uncertainty. If the parties disagree at their mandatory conference, the Proposed 

Amendment gives no guidance to the parties about how to resolve that dispute. The rule should 

also provide guidance as to how parties can respond if the noticing party goes beyond the scope 

of the agreed-to topics for the deposition. 

Including a specific notice requirement: 

In addition, although Rule 30(b)(1)’s requirement for “reasonable written notice” works 

well in other contexts, it commonly provokes disagreement regarding 30(b)(6) depositions. This 

is because the burden of responding to a 30(b)(6) deposition is great. The lack of guidance has 

caused parties to repeatedly turn to the courts, forcing courts to determine whether four-day 

notice is reasonable,9

 or six days,10 or eleven days.11 A specific notice requirement would also 

address the Committee’s concerns about unprepared designees. Adequately preparing a designee 

 

8

 Report of the Advisory Committee on Civil Rules (Dec. 9, 2016) at 11. 

9 Gulf Prod. Co. v. Hoover Oilfield Supply, Inc., No. 08-5016, 2011 WL 891027, at *2 (E.D. La. Mar. 11, 2011). 

10 Hill Holiday Connors Cosmopulos, Inc. v. Greenfield, No. 8-03980, 2010 WL 547179, at *3 (D.S.C. Feb. 9, 

2010). 

11 Harvey Trucking, Inc. v. Wells Fargo Ins. Servs. of W. Virginia, Inc., No. 9-00007, 2010 WL 11565436, at *4 

(S.D. W. Va. Aug. 25, 2010). 
Page 5 

takes time, and it is no surprise that—without a sufficient notice requirement—designees are 

sometimes underprepared. 

A 30-day notice provision would fix these problems and is consistent with requirements 

in other discovery-related rules.12 If documents must be produced, a 30-day notice requirement 

provides an organization the same time to locate, review and produce the documents as it would 

in response to a request came under Rule 34. As it stands now, parties often try to game the 

system by serving requests for production with a Rule 30(b)(6) deposition notice, providing 

fewer than 30 days before the deposition to produce documents. 

Specifying how Rule 30(b)(6) depositions count towards the presumptive number and 

duration of depositions: 

Finally, the lack of clarity about how Rule 30(b)(6) interacts with the limitations in Rule 

30(a)(2)(A)(i) and Rule 30(d) concerning the presumptive number and duration of depositions 

has led to needless disagreement and confusion. This procedural problem is a direct result of the 

current text of the Rule and Committee Note. Some courts allow one seven-hour day of 

questioning for each 30(b)(6) designee.13 Others reject a blanket approach along those lines.14

The Committee should clarify that: (1) by default, a Rule 30(b)(6) deposition should last for one 

day of seven hours per corporate representative, and (2) each Rule 30(b)(6) deposition counts as 

a single deposition under Rule 30(d), regardless of the number of designees. With a clear rule in 

place, the parties and courts can determine when additional time or depositions are necessary. 

III. The Proposed Amendment is unfair to respondents. 

Not only is the Proposed Amendment unlikely to achieve the Committee’s goals, its 

requirement that the parties confer about the identity of a Rule 30(b)(6) deponent is likely to 

cause additional confusion and unfairness to respondents. This burden is heightened when one 

party is a corporation and the other is not so there is no proportionality of interest in containing 

the scope of the notice. 

Under the current version of the Rule, it is clear that an organization responding to a 

deposition notice has sole authority for selecting the witnesses testifying on its behalf.15 This is a 

 

12 See Fed. R. Civ. P. 33, 34, and 36. 

13 See, e.g., Am. Home Assur. Co. v. Greater Omaha Packing Co., No. 11-270, 2013 WL 4875997, at *1 (D. Neb. 

Sept. 11, 2013) (allowing “seven hours per 30(b)(6) representative”).

14 See, e.g., In re Rembrandt Techs., No. 9-00691, 2009 WL 1258761, at *14 (D. Colo. May 4, 2009) (rejecting a 

“blanket rule permitting a seven-hour deposition of each designated deponent” as “unfair” ... because it rewards 

broader deposition notices and penalizes corporate defendants who regularly maintain business information in silos” 

and as “unduly burdensome ... because of the manifest increased cost and disruption of preparing more than one 

person to respond to a deposition notice”). 

15 See, e.g., 8A Wright & Miller, Federal Practice & Procedure § 2013 (3d ed. 2018); Progress Bulk Carriers v. 

Am. S.S. Owners Mut. Protection and Indemnification Ass’n, Inc., 939 F. Supp. 2d 422, 430 (S.D.N.Y. 2013); 
Page 6 

vital rule that protects the truth-finding process and is consistent with the purpose of 30(b)(6) 

depositions. 

In my experience, the selection of a corporate designee is essential to an effective 

defense. In one recent product liability case, Plaintiff sought to pierce the corporate veil to hold a 

US domestic corporation liable for alleged acts of a foreign subsidiary of the same parent 

corporation. The corporate deponent selected was a corporate officer and in-house counsel who 

could speak to the corporate records and maintenance of the corporate forms. Allowing 

Plaintiff’s counsel to request a particular deponent, such as a mid-level plant manager, would 

have made it all but impossible to prepare the witness adequately. Understanding the intricacies 

of the corporate structure and form of a multi-national corporation is outside the understanding 

of most lay witnesses. Certainly preparing the witness to testify would have been far more 

challenging and the testimony far less clear and concise. Plaintiff’s counsel was not prejudiced 

because they were able to depose other company employees who knew relevant facts about the 

product and the Plaintiff’s use of the product as fact witnesses. 

Rule 30(b)(6) depositions originated as a remedy for “bandying, ... in which deponent 

after deponent could disclaim knowledge of facts clearly known to someone in the 

organization.”16 The current version of the rule achieves this purpose: It requires the 

organization to designate a witness or witnesses capable of testifying about the noticed topics. 

Organizations already have a duty to prepare their designees to testify based upon all reasonably 

available information.17 In addition, to the extent that a party believes that it requires the 

testimony of a particular individual associated with an organization, it may notice that 

individual’s deposition under Rule 30(b)(1). Therefore, the Proposed Amendment’s requirement 

that the parties “confer in good faith about ... the identity of each person the organization will 

designate to testify” appears to be a solution in search of a problem. 

The Proposed Amendment will not lead to better preparation of Rule 30(b)(6) deponents. 

Organizations are in the best position to identify the designee who can most accurately convey 

the organization’s knowledge. In my experience, corporate designees are unprepared not because 

the organization has chosen a poor representative. Instead, this problem arises due to overly 

broad and vague deposition topics that make it difficult for even the most knowledgeable 

designees to understand and recall all responsive information. In addition, adequate preparation 

is particularly challenging in litigation that involves historical facts, particularly when no current 

employees remain to explain documents and fill in gaps as the designee prepares for the 

 

McPherson v. Wells Fargo Bank, 292 F.R.D. 695, 698 (S.D. Fla. 2013); Resolution Tr. Corp. v. S. Union Co., 985 

F.2d 196, 197 (5th Cir. 1993). 

16 Gailey Memo, at 249. See also 1970 Advisory Committee Note, 48 U.S.C., appx. 

17 See, e.g., Starline Windows Inc. v. Quanex Bldg. Prod. Corp., No. 15-1282, 2016 WL 4485564, at *4 (S.D. Cal. 

July 21, 2016); Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006); Calzaturficio S.C.A.R.P.A. 

s.p.a. v. Fabiano Shoe Co., 201 F.R.D. 33, 36 (D. Mass. 2001); Bank of New York v. Meridien BIAO Bank Tanzania 

Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997).
Page 7 

deposition. For instance, in asbestos litigation, where the latency for developing an asbestosrelated illness can be forty or more years, the employees who were involved in the development 

of the products are often are retired or deceased. Preparing a witness to testify about decisions 

that were made by the company forty years ago is difficult. Without a document that explains 

why a company did or did not think their product needed a warning in the 1970s, it may be 

impossible for a corporate designee to answer. Also, to respond to an overbroad deposition 

notice for a deponent with knowledge of historic information a company may need to produce 

more than one witness to address all topics. 

The Committee acknowledges that under the Proposed Amendment, “the choice of the 

designees is ultimately the choice of the organization.”18 This begs the question: What is the 

organization’s good-faith duty under the Proposed Amendment? Contrary to the Committee’s 

optimistic sentiment that “conferring ... in advance might avoid later controversy,”19 the 

amended rule will lead to needless litigation over something that is indisputably within the 

respondent’s discretion. 

In fact, the Proposed Amendment is an invitation for aggressive lawyers to try to block 

corporate designees they predict will be articulate and strong witnesses, in hopes of causing a 

less effective witness to act as designee. I have already experienced lawyers attempting just that 

tactic under the existing rule. It will become even more abused under the Proposed 

Amendment’s vague requirement to “confer.” 

 

18 See Preliminary Draft of Proposed Amendments and Request for Comment (August 2018) at 33 (discounting 

concern that “some might interpret [the conference requirement] as requiring that the organization obtain the 

noticing party’s approval of the organization’s selection of its witness” and noting that “[t]he proposed amendment 

... carries forward the present rule text stating that the named organization must designate the persons to testify on 

its behalf.”) 

19 Agenda for Advisory Committee on Civil Rules (April 10, 2018) at 114. 
Page 8 

IV. Conclusion 

I appreciate the significant challenges in addressing the practical difficulties with Rule 

30(b)(6) through a change in the Rule’s text. In my experience, the only way to do so is to amend 

the Rule to add specific guidance to practitioners. The Proposed Amendment offers no such 

guidance, but instead appears to be an attempt to make change for its own sake. Not only is that 

likely to prove ineffective, it will cause significant unfairness to responding parties. Therefore, I 

respectfully urge the Committee to reject the Proposed Amendment. 

Very truly yours, 

/s/ Sharon L. Caffrey 

Sharon L. Caffrey 

SLC 
TAB 34 

COMMENT OF

PHILIPPA ELLIS
1180 PEACHTREE STREET, N.E., SUITE 3000 PHILIPPA V. ELLIS 

ATLANTA, GEORGIA 30309-3531 ellis@owengleaton.com 

TELEPHONE (404) 688-2600

FACSIMILE (404) 525-4347 

www.og-law.com 

February 5, 2019 

Advisory Committee on Civil Rules 

Administrative Office of the United States Courts 

Thurgood Marshall Federal Judiciary Building 

One Columbus Circle, N.E. 

Room 7-240

Washington, DC 20544 A 

RE: Proposed Amendments to FRCP 30(b)(6)

Dear Committee Members: 

Thank you for this opportunity to submit comments on the proposed amendments to Fed. R. 

Civ. P. 30(b)(6). This is my first time participating in this process; however, I am moved to 

communicate my concerns because of what I view as potential unintended consequences of the 

proposed amendments. 

For three decades, my career as a litigator has included handling product liability, consumer 

litigation, insurance defense, commercial litigation, business disputes and employment matters. 

Although I have handled both plaintiff’s and defense litigation, my practice has been devoted 

primarily to representing global enterprises named as defendants in complex tort and commercial 

litigation. During the past 30 years, I have been a routine recipient of 30(b)(6) notices and have 

experienced, first hand, the manner in which the procedural process works and how issues can arise 

should the proposed amendments reach adoption.

The proposed amendments are problematic, on many levels, and have the unintended 

consequence of creating a complex web of discovery disputes, collateral litigation, increased costs, 

and a waste of judicial resources. Additionally, the proposed amendments are unnecessary because 

FRCP 30(b)(6), as currently drafted, provides an adequate method by which the parties can litigate 

their differences and properly identify 30(b)(6) deponents through well-established procedures. 

In the normal course of litigation, the identification of suitable 30(b)(6) witnesses is dictated 

by the nature of the claims, allegations and/or defenses, and the scope of the deposition testimony 
Advisory Committee on Civil Rules

February 5, 2019

Page 2 of 3

sought. The current mandate already results in the identification of appropriate witnesses most 

knowledgeable about the scope of topic(s) delineated by the party serving the 30(b)(6) deposition 

notice or subpoena. 

A party’s ability to identify a witness most knowledgeable about a particular topic may vary, 

depending on the phraseology and scope of the subpoena or deposition notice. Differences in opinion 

regarding how a subpoena or notice is interpreted can make the identification of 30(b)(6) witnesses 

difficult or impossible absent court intervention. Further, the proposed amendments potentially 

deprive entities of the right to choose witnesses who will speak on behalf of the organization. The 

eventual necessity of changing the identity of a witness invites a protracted discovery dispute. The 

proposed language leaves little room for an organization to change the identity of a designated 

witness in the event the witness is no longer available, the witness leaves his/her employment, or it is 

later discovered the designated witness is not the best suited individual to address the scope of 

testimony at issue. The identity of who will testify on behalf of an organization should remain the 

decision of the litigant entity with respect to the scope of inquiry. The binding nature of the 

proposed amendments unfairly usurps the litigant’s choice to identify who will testify on its behalf. 

The proposed amendments do not fully take these issues into consideration and invites the 

propounding party to interpret the amendments as a license to participate in the 30(b)(6) witness 

selection process. 

The proposed amendments are ambiguous because it does not fully address the timing issues 

that have an impact on how 30(b)(6) witnesses are identified in the normal course of business and 

litigation. For example, if a plaintiff serves a subpoena or discovery notice at the commencement of 

the case and before the defendant has an opportunity to conduct discovery and reach a full 

understanding of the claims and allegations, the identification of a 30(b)(6) witness can be premature 

at that juncture and results in a waste of resources and an exercise in futility. It may take weeks or 

months to identify a proper 30(b)(6) witness, depending on the size of the litigation or complexity of 

the responding litigant’s corporate structure. Adding the proposed phrase, “and continuing as 

necessary” does not resolve the concerns and the high likelihood of the protracted discovery disputes 

are sure to be created and stirred due to the ambiguity of the proposed amendments, if adopted. 

While I am not providing input on behalf of any particular client, I am moved to participate in 

this process based on decades of involvement as trial counsel for corporate and business entities 

responding to 30(b)(6) notices. I respectfully request the Committee to reconsider the necessity of 

the proposed amendments in the interest of: (1) fairness; (2) efficiency; (3) reducing the likelihood 

of protracted discovery disputes, (3) avoiding making litigation more costly for litigants; (4) 

permitting organizations to decide and determining who will testify on their behalf; and (4) 

preserving precious and already-stretched judicial resources. 
Advisory Committee on Civil Rules

February 5, 2019

Page 3 of 3

At the hearing before the Advisory Committee on Civil Rules, my testimony will echo the 

comments provided herein. 

Again, thank you for the opportunity to voice these concerns. 

Respectfully submitted,

Philippa V. Ellis 
TAB 35

COMMENT OF

PATRICK M. REGAN

REGAN ZAMBRI LONG



TAB 36

COMMENT OF

ABA SECTION OF LITIGATION
PALMER G. VANCE II

DIRECT DIAL: (859) 231-3935

gene.vance@skofirm.com

300 WEST VINE STREET

SUITE 2100

LEXINGTON, KY 40507-1801

MAIN: (859) 231-3000

FAX: (859) 253-1093

January 23, 2019 

VIA ELECTRONIC MAIL 

Honorable John D. Bates, Senior Judge 

U.S. District Court, District of Columbia 

E. Barrett Prettyman U.S. Cthse. 

333 Constitution Avenue N.W. 

Washington, DC 20001 

Re: Rule 30(b)(6)

Dear Judge Bates: 

We write pursuant to the Request for Comment on the proposed change to Fed. 

R. Civ. P. 30(b)(6). The ABA Section of Litigation’s Federal Practice Task Force Report 

of November 23, 2015 (“the Task Force Report”) recommended changes far more 

extensive than those now under consideration, but we remain grateful for the attention 

the Advisory Committee has given all our suggestions, and we do view the current 

proposal as an improvement of the Rule. We will comment on just two subjects. 

I. Meeting, Conferring, and Addressing Objections 

The only mechanism for obtaining judicial intervention to resolve Rule 30(b)(6) 

disputes is a formal motion for a protective order by the party or other person served 

with a 30(b)(6) notice. The proposed change is helpful in requiring that the parties 

communicate in advance of 30(b)(6) depositions -- but it does not go far enough, as a 

practical matter. We think it should go a step further, include a provision for counsel to 

set forth in writing any issues with the notice before a meet and confer, and include the 

language we have previously suggested, in our May 24, 2018 letter to Judge Campbell: 

If the parties cannot resolve material disagreements, they are encouraged 

to request a conference with the Court to obtain an early resolution of the 

matters. 
Hon. John D. Bates 

January 23, 2019 

Page 2 

We believe such language would have the salutary effect of causing lawyers to 

be more reasonable and accommodating, as is ordinarily the case when they 

understand they may need to defend their positions orally, or even face-to-face, with the 

Court. Such an approach is also entirely consistent with, and advances the goals of, 

the 2015 Rule amendments, which encourage more informal practices for hands-on 

Court involvement in resolving discovery disputes and resolving such disputes earlier in 

the process. It, of course, would be up to the individual district judge or magistrate 

judge to decide how to handle requests for conferences, whether by a short call or brief 

in-person conference, preceded by, or in lieu of, short letters, or otherwise. 

II. Eliminating the Inconsistency in Counting Depositions and Hours 

The Notes of past advisory committees state that a Rule 30(b)(6) deposition 

counts as a single deposition (1993 Note) – but, if multiple witnesses are identified, that 

each witness may be deposed for a full seven hours (2000 Note). This approach 

carries unintended and problematic consequences. For example, an organization, 

reluctant to face the time and expense of “extra depositions” is tacitly encouraged to 

designate a single 30(b)(6) witness, squeezing all its responsive corporate knowledge 

into a single person, even when designating separate witnesses with responsive 

knowledge in separate areas might be more appropriate and efficient. We suggest that 

the education and deposition of one person with second-hand information is often less 

probative, and certainly less efficient, than shorter depositions of more than one witness 

who does have first-hand knowledge. 

We propose a practical approach that has already been adopted in at least one 

jurisdiction:1 Every seven hours of testimony should simply count as a single 

deposition. If it is necessary for a 30(b)(6) examination to take longer than the usual 

seven-hour “day” of testimony, there is no sound policy reason for the fiction of a sevenhour deposition that lasts ten or fourteen or any random number of hours. Similarly, if 

multiple witnesses each provide short testimony on subjects within their specialized 

knowledge, and that testimony consumes seven hours or less, we agree that the 

testimony should count as (or toward) only a single deposition, even if the testimony is 

taken over several days and in different venues. This approach also has the virtue of 

permitting the attorney who notices the 30(b)(6) deposition to decide how much time to 

spend, so as to avoid being “charged with” a second deposition, no matter how many 

separate witnesses are proffered by the organization. 

1

 Effective September 1, 2018, New Jersey adopted rules for complex cases that count 

every seven hours of testimony of an entity representative as one deposition, regardless 

of the number of witnesses. NJ Court Rules R. 4:104-3(a)(2). We have not researched 

the rules in other states’ courts.
Hon. John D. Bates 

January 23, 2019 

Page 3 

Conclusion 

We hope the Committee finds these comments helpful. 

Very truly yours, 

Palmer G. Vance II* 

Barbara J. Dawson* 

James A. Reeder, Jr* 

Koji F. Fukumura* 

Don Bivens* 

Stephen J. Curley* 

Laurie Webb Daniel* 

Cathleen M. Devlin* 

Dennis J. Drasco* 

Jeffrey J. Greenbaum* 

William T. Hangley* 

Gregory Hanthorn* 

John P. Hutchins* 

S. Kirk Ingebretsen* 

D. Larry Kristinik* 

Michael P. Lynn* 

Laura L. McLaughlin* 

Janice V. Mitrius* 

Daniel D. Quick* 

Dennis P. Rawlinson* 

Tracey Salmon-Smith* 

Elizabeth T. Timkovich* 

James M. Truss* 

Irwin H. Warren* 

Dale M. Weppner* 

Steven A. Weiss* 

________________________ 
Hon. John D. Bates 

January 23, 2019 

Page 4 

* The signers are present, past and upcoming Chairs of the ABA Section of Litigation, 

members of the Section’s Council, the current co-chairs and members of the ABA 

Section of Litigation Federal Practice Task Force, and the Section Liaison to the 

Advisory Committee on Civil Rules. As required by ABA protocol, we offer these 

comments only in our individual capacities. Additionally, the views expressed in this 

letter are solely our own and may not reflect the views of our respective law firms.