TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206

Washington, D.C. 20005-4018

(202) 628-4888

contracts@hrccourtreporters.com

IN THE MATTER OF: )

 )

ADVISORY COMMITTEE MEETING )

ON THE RULES OF CIVIL )

PROCEDURE ) 

Pages: 1 through 336

Place: Washington, DC
TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206

Washington, D.C. 20005-4018

(202) 628-4888

contracts@hrccourtreporters.com

Date: February 8, 2019
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IN THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS

In the Matter of: )

 )

ADVISORY COMMITTEE MEETING )

ON THE RULES OF CIVIL )

PROCEDURE ) 

Mecham Conference Center

Thurgood Marshall Federal

Judiciary Building

One Columbus Circle, NE

Washington, DC

Thursday,

February 8, 2019

The parties met, pursuant to notice, at 9:00 a.m.

BEFORE: HONORABLE JOHN D. BATES

 Chairman

APPEARANCES:

Committee Members: 

JUDGE JENNIFER BOAL

PROFESSOR EDWARD COOPER

JUDGE JOAN ERICKSEN

JUDGE KENT JORDAN

PROFESSOR RICHARD MARCUS

JUDGE ROBIN ROSENBERG

MS. VIRGINIA SEITZ

MR. JOSEPH SELLERS

MS. ARIANA TADLER

MS. HELEN WITT

MR. JOSHUA GARDNER

JUDGE DAVID CAMPBELL

JUDGE ROBERT DOW

PROFESSOR CATHERINE STRUVE

PROFESSOR DANIEL COQUILLETTE
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APPEARANCES: (Continued)

Speakers:

MARK BEHRENS, International Association of Defense

 Counsel

MEGAN CACACE, Relman, Dane & Colfax PLLC

BRAD MARSH, Swift, Currie, McGhee & Hiers, LLP

MARK CHALOS, Lieff Cabraser Heimann & Bernstein

 LLP

MARY NOVACHECK, Bowman and Brooke, LLP

SHERRY ROZELL, McAfee & Taft

BRUCE PARKER, Venable LLP

PATRICK SEYFERTH, Bush Seyferth & Paige PLLC

SHARON CAFFREY, Duane Morris, LLP

TERRENCE ZIC, Whiteford Taylor Preston, LLP

KATHY BYRNE, Cooney & Conway

STERLING KIDD, Baker, Donelson, Bearman, Caldwell 

 & Berkowitz, PC

ANDREW COOKE, Flaherty Sensabaugh Bonasso PLLC

JESSICA KENNEDY, McDonald Toole Wiggins, PA

KEITH ALTMAN, Excolo Law, PLLC

ALEX DAHL, Lawyers for Civil Justice

MICHAEL SLACK, Slack Davis Sanger LLP

TERRI REISKIN, Dykema Gossett PLLC

SUSANNAH CHESTER-SCHINDLER, Waters Kraus & Paul

VIRGINIA BONDURANT PRICE, McGuire Woods LLP

DONALD SLAVIK, Slavik Law Firm LLC

JILL JACOBSON, Husqvarna Professional Products, 

 Inc.

TOYJA KELLEY, DRI-The voice of the Defense Bar

PATRICK REGAN, Regan Zambri Long, PLLC

MIKE WESTON, Lederer Weston Craig, PLC

CHRISTINE WEBBER, Cohen Milstein Sellers & Toll 

 PLLC

JULIE YAP, Seyfarth Shaw LLP

RICHARD BENENSON, Brownstein Hyatt Farber Schreck, 

 LLP

CHAD LIEBERMAN, Brosseau Bartlett Lieberman, LLC

MICHAEL NELSON, Eversheds Sutherland (US) LLP

JONATHAN REDGRAVE, Redgrave LLP

HASSAN ZAVAREEI, Tycko & Zavareei LLP

WILLIAM CONROY, Campbell Conroy & O'Neil, PC

CRAIG LESLIE, Phillips Lytle LLP

LAUREN BARNES, Hagens Berman Sobol Shapiro, LLP

PALMER VANCE, ABA Section of Litigation

TOBIAS MILLROOD, American Association for Justice
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GREG SCHUCK, Huie, Fernambucq & Stewart, LLP

PAUL BLAND, Public Justice
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APPEARANCES: (Continued)

Speakers:

PHILIPPA ELLIS, Owen Gleaton Egan Jones & Sweeney, 

 LLP

PETER FAZIO, Aaronson Rappaport Feinstein & 

 Deutsch, LLP

MARK KOSIERADZKI, Kosieradzki Smith Law Firm, LLC

ALTOM MAGLIO, Maglio Christopher & Toale, P.A.

JOHN GUTTMANN, Beveridge & Diamond, P.C.

EDWARD BLIZZARD, Blizzard Law, PLLC

ANDREW TRASK, Shook, Hardy & Bacon

IRA RHEINGOLD, National Association of Consumer 

 Advocates

THOMAS REGAN, LeClair Ryan

MICHAEL NEFF, Neff Law

THOMAS PIRTLE, Laminack, Pirtle & Martines

BRITTANY SCHULTZ, Ford Motor Company

TERRY O'NEILL, National Employment Lawyers 

 Association
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1 P R O C E E D I N G S

2 (9:00 a.m.)

3 JUDGE BATES: Good morning again to 

4 everyone. We’re here today for our second public 

5 hearing with respect to the proposed amendments to 

6 Rule 30(b)(6) of the Civil Rules of Procedure. We 

7 have a very busy schedule today because many want to 

8 testify. Fifty-some witnesses we expect to hear from 

9 today and that, unfortunately, limits the time that is 

10 available for each witness. It also limits the time 

11 available for questioning, so everyone suffers a 

12 little bit. But, we need to do it in a curtailed 

13 manner in order to get through the day and give 

14 everyone a chance to testify. 

15 So, without further ado I’m just going to 

16 thank everyone for being here today, both the 

17 witnesses who will be testifying and the members of 

18 the advisory committee who are here, and of course the 

19 various staff both of the Rules staff and the staff of 

20 the AO who make it possible for us to have a hearing 

21 such as this in an efficient manner. With that, let’s 

22 go with the first witness. Our first witness today is 

23 Mark Behrens. 

24 Let me just say for everyone to remind you, 
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1 five minutes per witness is what we’re targeted so 

2 keep that in mind as you are presenting your 

3 testimony.

4 Mr. Behrens.

5 MR. BEHRENS: Good morning, Mr. Chair, 

6 members of the Committee, it’s an honor to be here. 

7 My name is Mark Behrens. I co-chair the public policy 

8 group at Shook, Hardy and Bacon here in Washington, 

9 D.C. Our firm primarily represents corporate 

10 defendants in complex civil cases. Today I’m 

11 representing the International Association of Defense 

12 Counsel. The IADC is an invitation only peer reviewed

13 membership organization of some 2500 leading civil 

14 defense lawyers from around the globe, most of whom 

15 are based here in the United States.

16 My practice is primarily not at the District 

17 Court level, but I’m here today because I chair the 

18 IADC’s Civil Justice Response Committee and we’ve 

19 heard from a lot of our members on this and so today 

20 I’m here to try to channel the views that we’re 

21 hearing. We really appreciate the work that the 

22 Committee has done. I was at the hearing in Phoenix 

23 and had the opportunity and I’ve seen how hard you 

24 work. But, the message from our membership loud and 
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1 clear, what we’re hearing, is that the members believe 

2 that the current proposal is flawed, that it should be 

3 withdrawn and reworked. And I say that with the 

4 utmost respect because I know how much work has gone 

5 into this already. 

6 The strongest opposition we’re hearing is on 

7 the meet and confer requirement with regard to the 

8 identification of the individual that the organization 

9 chooses to use. We appreciate that the notes try to 

10 clarify that the organization will be the one who 

11 chooses who speaks on its behalf, but that is 

12 intention with the black letter of the rule itself. 

13 Confer presupposes that there will be a dialogue and 

14 that will open a door that hasn’t existed to give the 

15 noticing party an opportunity to try to influence the 

16 selection process. Our view is that the organization 

17 alone should choose who is going to bind it through 

18 testimony.

19 JUDGE BATES: What if the rule only required 

20 identification of the witness without any need to meet 

21 and confer with respect to the identification of the 

22 witness, say a couple of days before the scheduled 

23 date of the deposition. What’s your position with 

24 respect to that?
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1 MR. BEHRENS: That would be an improvement 

2 but as we noticed in our, wrote in our comments, that 

3 would still be problematic and something that we would 

4 oppose. And the reason, and you heard some testimony 

5 on this in Phoenix, I recall, where there were lawyers 

6 who said, and they may be IADC members, that 

7 oftentimes lawyers do disclose in advance and so there 

8 is some of this occurring already. The problem that 

9 we see, though, is in a rigid one size fits all rule. 

10 When you move away from a discretionary situation to a 

11 mandatory situation that’s going to create problems. 

12 And we heard some real-life examples of lawyers that 

13 have made disclosures and then it's blown up in their 

14 face, and I think you’re going to hear more of that 

15 today.

16 JUDGE BATES: But the one-size-fits-all is 

17 an interesting concept.

18 MR. BEHRENS: Yes?

19 JUDGE BATES: Because isn’t that a response 

20 that could be made to many of the suggestions that 

21 your organization makes for certain other requirements 

22 in terms of notice -- a notice period, in terms of 

23 accounting for the number of depositions, et cetera, 

24 et cetera. Those are all one-size-fits-all situations 
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1 as well. 

2 MR. BEHRENS: Well, but I don’t think they 

3 are, Mr. Chairman, and, you know, the presumptive 

4 limits is something that I’ll mention and others will 

5 as well, there is more flexibility with regard to 

6 presumptive limit idea. But, most of the rules are 

7 one size fits all, and in most cases that will work. 

8 Here the problem is that we’ve seen that it can be 

9 used -- the term was used to weaponize the rule. We 

10 all know how social media research works today. 

11 People will go out and they will look at Facebook 

12 pages and so forth and one of the concerns is that the 

13 30(b)(6) deposition will move away from where it is 

14 supposed to focus, and that is the knowledge of the 

15 corporation, and will focus more on the individual who 

16 is testifying. It will look into their background, 

17 there will be opportunities to harass that person and 

18 frankly in a 30(b)(6) situation the identity of the 

19 witness is irrelevant because they are not there 

20 speaking on their behalf, they are there speaking on 

21 behalf of the corporation.

22 JUDGE ROSENBERG: In your experience is it 

23 the case that more often than not just through general 

24 meet and confer that is not imposed on the parties 
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1 that the attorney, that the defense attorney does 

2 disclose the identity? Would you say that happens 

3 more often than not? And in those instances where 

4 they do, is it more often than not that the 30(b)(6) 

5 turns into a personal deposition with use of the 

6 social media?

7 MR. BEHRENS: I think there’s other people 

8 that are better prepared, that have had many 

9 opportunities in defending 30(b)(6) depositions, but 

10 that’s exactly what we’re hearing is that when you 

11 give that notice in advance, what somebody is going to 

12 do with that, they're going to go on the internet, 

13 they're going to look on Facebook, they are going to 

14 try to find everything they can about that individual 

15 and the deposition then begins to focus more on that 

16 individual than on the corporation’s knowledge, which 

17 is really the purpose of the 30(b)(6).

18 And, you know, one of the things that I 

19 heard also in Phoenix -- and I think there’s a 

20 disconnect here -- one of the concerns I heard 

21 reflected by members of the Committee is this notion 

22 that some witnesses are showing up unprepared. Well, 

23 having witness disclosure, whether it’s part of a 

24 conferral process or just mandating disclosure is not 
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1 going solve that problem. Identifying a witness does 

2 not equate to knowledge or preparation. They are 

3 totally disconnected. So, we see in some regard that 

4 the proposed amendment is a solution in search of a 

5 problem that we don’t know what it’s trying to solve. 

6 But there are problems --

7 JUDGE JORDAN: They can’t really be --

8 MR. BEHRENS: Yeah.

9 JUDGE JORDAN: -- disconnected, are they? I 

10 mean, if the other side knows you are putting up for 

11 this deposition about conflicts chemistry in a 

12 pharmaceutical case, somebody responsible for keeping 

13 the plumbing operating in a plant somewhere, they 

14 might reasonably say to you well how is that person 

15 going to be knowledgeable and prepared. How can you 

16 say those are disconnected? The identity will tell 

17 somebody on the other side something meaningful about 

18 the quality of the knowledge base, right?

19 MR. BEHRENS: Yes, but the -- again, because 

20 a 30(b)(6) person is speaking for the corporation, 

21 it’s the corporation’s duty to put forward a witness 

22 that's prepared to answer the question that’s on 

23 notice.

24 JUDGE JORDAN: Precisely. That’s the point.
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1 The question that's behind the proposal is isn’t it 

2 better to let the other side know this is who we 

3 propose to put forward because if there is somebody 

4 who seems manifestly problematic to the other side at 

5 least there can be a discussion in advance.

6 MR. BEHRENS: Again, I think you’ll hear, 

7 you know, stories throughout the day from defense 

8 counsel that have been in that position and they found 

9 that it creates new problems. And, again, there are 

10 provisions and I think you’ll hear from people 

11 existing in the rules already. If somebody shows up 

12 unprepared, there are existing mechanisms in the rules 

13 to sanction that kind of conduct. I don’t think that 

14 this rule will solve that problem. There are already 

15 existing rules that will solve that problem.

16 JUDGE BATES: Mr. Behrens.

17 MR. BEHRENS: Yeah.

18 JUDGE BATES: I’m going to have to move to 

19 the next witness. Thank you very much.

20 MR. BEHRENS: Thank you very much to the 

21 Committee.

22 JUDGE BATES: We appreciate it. Let me 

23 remind everyone, including those up at the table here, 

24 when you are speaking for the benefit of the court 
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1 reporter to try to turn your mics on, the green light 

2 will come on when you push the button. 

3 Our next witness will be Megan, and excuse 

4 me, is it, Cacace?

5 MS. CACACE: It used to be Cacache 

6 (phonetic) and now it’s Cacace. Americanized. So 

7 you're right either way.

8 JUDGE BATES: Ms. Cacace, welcome.

9 MS. CACACE: Good morning and thank you for 

10 the opportunity to speak with you here today. My name 

11 is Megan Cacace, I’m a partner at Relman, Dane & 

12 Colfax which is a civil rights law firm based here in 

13 D.C. We have a national practice litigating civil 

14 rights cases on issues like housing, employment, 

15 lending, public accommodations. We represent both 

16 individuals and organizations and individual plaintiff 

17 and class action suits. 

18 I’m here today to speak in favor of the 

19 proposed amendment because I think it, in my 

20 experience, would promote efficiency and the avoidance 

21 of disputes by codifying sort of existing best 

22 practices. And given time constraints I wanted to 

23 focus my time in talking about the meet and confer 

24 requirement with respect to witness identity and how, 
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1 based on my experience, I think that advances those 

2 goals in at least three ways.

3 First, I think building off what Your Honor 

4 mentioned it does help identify misunderstandings that 

5 would otherwise manifest themselves in preparedness 

6 problems. So, sometimes you can tell based on the 

7 individual put forth that they may not understand what 

8 you’re seeking with a particular topic. I’ll give an 

9 example. So in my practice our 30(b)(6) notices often 

10 include a topic that relates to the information that 

11 the entity maintains and how it is maintained. It may 

12 be loan files, it may be tenant information, it may be 

13 employment data. What we are seeking is pretty 

14 technical information about databases usually 

15 requiring some type of IT background. Sometimes the 

16 corporation will indicate that they are going to 

17 designate an individual such as the regional manager 

18 of loans, or a regional manager of HR, and that sparks 

19 a conversation, not saying you much change who your 

20 designee is, that’s not up to me, but saying hey you 

21 may not understand the information I’m seeking here is 

22 quite technical and this is what I’m going for.

23 JUDGE JORDAN: Can’t you make that clear up 

24 front without asking them to confer with you? I mean, 
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1 the repeated refrain multiple sources on the defense 

2 side is this invades our exclusive province. This is 

3 our specific right. And to require a meet and confer 

4 both invades the work product privilege potentially 

5 and cannot but help draw plaintiff’s counsel into 

6 dictating who our witness is going to be. How do you 

7 respond to that? I mean, are those things just false, 

8 or are they concerns that are legitimate but not 

9 legitimate enough to overcome the advantage to 

10 plaintiff’s side?

11 MS. CACACE: I don’t think that’s really 

12 what meet and confer means. I mean, we’re talking 

13 about meeting and conferring about notice topics. 

14 Nobody is saying that means defense counsel will get 

15 to dictate what the topics are in the notice. All it 

16 means is that you have a conversation. And I think 

17 there is something lost in not having that 

18 conversation and allowing one side to just identify 

19 and not have to engage in a communication about what 

20 this person’s background is or whether they truly 

21 understand the nature of the information sought.

22 JUDGE JORDAN: I’m sorry, let me just follow 

23 up real quickly.

24 MS. CACACE: Sure.
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1 JUDGE JORDAN: What I’m trying to ask is, 

2 and I think this goes to some things we’ve heard from 

3 the defense. If the topics were sufficiently targeted 

4 and clear and specific you wouldn’t get people who 

5 were unconnected from what you are trying to get at. 

6 So the solution to the problem isn’t to make them tell 

7 you who their witness is, or confer about it, it’s for 

8 you folks to give more specific clear topic 

9 designations. That’s what I’m trying to get you to 

10 respond to.

11 MS. CACACE: Yeah, I guess I don’t see that 

12 being how this plays out in practice. I think a lot 

13 of times there is an opportunity for communication on 

14 both sides and saying it just goes to the wording of 

15 the topics I don’t know how the other side is 

16 necessarily interpreting the wording no matter how 

17 hard I try to make it clear sometimes there may be 

18 misunderstandings. And I don’t think there is going 

19 to be a significant issue with just saying let’s just 

20 have a conversation about it, and frankly I think 

21 that’s what happens a lot of the time anyway. 

22 Just briefly, because I see my time is 

23 limited, I wanted to raise two additional reasons in 

24 my practice why I think this practice is valuable. 
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1 One is it does help tailor questioning for it to have 

2 more clearer and targeted depositions. So, for 

3 example, if I’m using examples to help make a line of 

4 inquiry more concrete I can choose examples that this 

5 witness is more likely to be familiar with. Or if I, 

6 oftentimes in discovery you have multiple versions of 

7 a document, I will use the version that the designee 

8 has seen before to provide some more familiarity and 

9 some more context for questioning. The third reason 

10 is I think it does help with efficiency in terms of 

11 individual capacity depositions. A lot of times it is 

12 the same person, so what we will do is you’ll have a 

13 conversation and you will do the 30(b)(6) on topic 

14 four in the morning and the individual capacity 

15 deposition in the afternoon and then everybody only 

16 has to travel once, only one court reporter appearance 

17 fee, only, you know, it’s just much more streamlined.

18 JUDGE BATES: Just knowing the identity of 

19 the witness might address that concern, wouldn’t it?

20 MS. CACACE: On some level. I mean, it 

21 depends on timing and again you lose the benefit of 

22 the other two factors where you are talking about the 

23 misunderstanding concerns and the sort of being able 

24 to tailor the questioning a little bit more. Thank 
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1 you.

2 JUDGE BATES: Any other questions? All 

3 right. Thank you very much for coming. We appreciate 

4 it.

5 MS. CACACE: Thank you. 

6 JUDGE BATES: Our next witness is Brad 

7 Marsh.

8 MR. MARSH: Good morning. My name is Brad 

9 Marsh. I’m a partner in the firm of Swift, Currie, 

10 McGhee & Hiers, Peachtree Street in Atlanta, Georgia. 

11 I’ve never done this before and I’m having recurring 

12 visions of Civil Procedure, or Federal Rules, and 

13 there’s not one professor, there’s 15. So, bear with 

14 me. I appreciate the efforts of this group.

15 I recognize what a significant burden it is 

16 to try to figure out what works for everybody. I 

17 happened to think and adopt the quaint notion that 

18 lawyers do appreciate rules. Lawyers follow the rules 

19 for the most part in our business and they follow the 

20 rules, especially that the federal courts make. And I 

21 think it’s important from down on Peachtree Street for 

22 you to understand that what the federal courts do make 

23 their way into all the state court rules ultimately. 

24 And that becomes a very significant effort that you’re 
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1 making. And to the extent that they are certain and 

2 clear, that’s great. To the extent that you inject 

3 uncertainty into the rules, lawyers take advantage of 

4 that. As effective advocates they do that to try to 

5 gain advantage for their client, appropriately. 

6 Bad lawyers, and there’s two of them out 

7 there, they take advantage of it in a way that tries 

8 to create in civil cases, discovery disputes. And, I 

9 would ask this group not to inject uncertainty into an 

10 area about which there has never been any uncertainty, 

11 and that has to do with the designation by the 

12 defendant. I’ve defended companies, small and large, 

13 for 34 years and I can tell you that in 34 years the 

14 person’s name and who the designee is has never been 

15 the source of dispute. But, the issue is stated with 

16 reasonable particularity and whether or not the 

17 defendant offered a witness to address those areas 

18 with specific specificity. 

19 I tend to agree that this group needs to 

20 adopt changes with respect to 30(b)(6) but it’s not as 

21 it relates to the designee. The selection of the 

22 designee is one area that does not cause disputes, in 

23 my experience. And primarily because the rule itself 

24 has never suggested that anybody had any say. And I 
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1 read some of the comments from Arizona, and it is like 

2 going back to law school where you see the history of 

3 the rule.

4 For 50 years somebody had the real good idea 

5 to say a company speaks through an individual that 

6 they choose. The other side states with reasonable 

7 particularity the areas about which they seen inquiry 

8 and they need to be -- it’s a tough job to come up 

9 with the areas of inquiry, if you’re going to do it 

10 right. And it’s a real tough job on the defense side 

11 to come up with the right person, with the right 

12 areas.

13 And to your point, Professor, or Honorable 

14 Judge, to your point, it doesn’t matter, according to 

15 the rule, it doesn’t matter who it is. In fact the 

16 rule allows for any other person who consents to 

17 testify. So, the fact that it’s the guy down the 

18 hall, if he’s properly prepared and he speaks -- and 

19 what’s so important about that --

20 JUDGE BATES: Are you telling us that you, 

21 if you were taking the deposition wouldn’t like to 

22 know whether the person you were deposing had 

23 testified about the same subject on three or four 

24 prior occasions so that you could be better prepared 
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1 for the deposition?

2 MR. MARSH: You know --

3 JUDGE BATES: Are you saying you wouldn’t 

4 like to know that?

5 MR. MARSH: You know, I would. And to the --

6 JUDGE BATES: And shouldn’t you be able to 

7 know that for efficiency’s sake?

8 MR. MARSH: No.

9 JUDGE BATES: Why not?

10 MR. MARSH: Because I, in fact, usually 

11 provide the name of the person, two or three days 

12 before, and it doesn’t change anything. For 34 years 

13 it never changes anything. They might say, well why 

14 that person? And I say, well, you know, that’s who 

15 we’ve chosen. And I think that if you required the 

16 designation of the name prior, you then shift the 

17 ability to make those decisions to the other side.

18 JUDGE JORDAN: I thought you had just said 

19 that if you do it two or three days in advance --

20 MR. MARSH: I do.

21 JUDGE JORDAN: -- it doesn’t change 

22 anything.

23 MR. MARSH: I do. And guess what? Two days 

24 before, if that person ends up having some issue or 
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1 literally freaks out, which happens, because they’ve 

2 never been deposed before I have to make a decision 

3 about somebody else. And according to the rule, I 

4 wouldn’t be able to designate somebody else, I’ve 

5 already designated that person.

6 JUDGE JORDAN: Well, why would -- if there 

7 was an identification of the witness in advance and 

8 there was some legitimate why that witness couldn’t 

9 appear, wouldn’t that be just like any other 

10 circumstance where you’ve got something scheduled and 

11 there is an unforeseen event and you deal with it.

12 MR. MARSH: But -- exactly. Reasonable 

13 people would think that would be the approach, but an 

14 enterprising requesting party might say, oh well this 

15 is -- you’re doing this because I’m able to find out 

16 something about that particular witness. I see 

17 nothing -- and what’s interesting is that this 

18 committee in the proposed draft says that the decision 

19 remains with the defendant --

20 JUDGE JORDAN: Right.

21 MR. MARSH: -- or the designating party. So 

22 this --

23 JUDGE JORDAN: So what is the problem if 

24 it’s literally the case that in 34 years of practice, 
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1 your custom practice is to identify somebody two or 

2 three days in advance and it hasn’t created any 

3 problems, if that’s sort of a best practice what’s 

4 wrong with putting it into the rules so it becomes the 

5 custom of best practice for everybody?

6 MR. MARSH: As long as you have language 

7 which is not there now which says: And by the way,

8 the requesting party can’t change that designation and 

9 that requesting party can’t really know why you chose 

10 that person. I don’t know enough about -- I just see 

11 that as being a problem if it’s mandated.

12 Am I done? Thank you so much.

13 JUDGE BATES: We’ll take the thank you. 

14 MR. MARSH: Thank you all. Thank you so 

15 much.

16 JUDGE BATES: And we’ll take no offense, 

17 those of us who are not professors at being referred 

18 to as professors.

19 MR. MARSH: Thank you. Thank you so much.

20 JUDGE BATES: Thank you very much. All 

21 right. Our next witness is Mark Chalos.

22 MR. CHALOS: Thank you very much for having 

23 me here. My name is Mark Chalos, I’m a partner with 

24 the Lieff Cabraser law firm in Nashville, Tennessee. 
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1 I’m here today on my individual capacity also 

2 representing the Tennessee Trial Lawyers Association, 

3 an organization whose mission it is to protect the 

4 right to jury trial, protect access to justice and 

5 protect the independence of the judiciary. 

6 In my practice I represent businesses, 

7 organizations as well as individuals in a variety of 

8 different types of lawsuits so I’m regularly on both 

9 sides of this issue, both as a requesting party and a 

10 producing party. So, I certainly empathize with some 

11 of the concerns raised. I’ve read the transcript of 

12 the Phoenix hearing. I have yet to hear a good reason 

13 why they shouldn’t disclose the identity of the 

14 30(b)(6) witness. I’ve not ever not disclosed that as 

15 a producing party. As a requesting party it certainly 

16 is more efficient to know the name of the witness in 

17 advance for some of the reasons we’ve already talked 

18 about.

19 PROF. MARCUS: Mr. Chalos.

20 MR. CHALOS: Yes, sir.

21 PROF. MARCUS: Has it ever happened after 

22 you identified one person as a witness that for some 

23 reason you had to substitute a different one?

24 MR. CHALOS: Yes, it has.
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1 PROF. MARCUS: What happened when that 

2 occurred?

3 MR. CHALOS: Nothing.

4 PROF. MARCUS: You didn’t run into big 

5 difficulties?

6 MR. CHALOS: I ran into no difficulties. In 

7 fact, there have been times where during the 

8 deposition we realized, you know what, we probably 

9 need to have another deposition on some of these 

10 issues. So, you know, it’s not ever been an issue. 

11 I’ve never contemplated bringing a witness with a 

12 paper bag over his or her head so that they couldn’t 

13 look at their Facebook page or something ahead of 

14 time. It’s just not been an issue and I don’t really 

15 understand why we are hearing some of the things we’re 

16 hearing.

17 JUDGE ROSENBERG: What’s the biggest 

18 advantage you’ve seen in depositions where you have 

19 had the identity disclosed in advance when you’re on 

20 the plaintiff’s side and those which you have not? 

21 Have you seen a big difference?

22 MR. CHALOS: Yeah, well, earlier this week I 

23 took a deposition of a person who was a high up 

24 financial person in the corporation and I said what 
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1 company do you work for, and he said I don’t know. I 

2 don’t know which of the related entities I actually 

3 work for. Well, I had his LinkedIn resume which I was 

4 able to present and say well is it this company, he 

5 said, oh right, yeah, that’s right. That’s the one. 

6 So, it’s been very helpful to have advanced 

7 understanding of who the witness is, what the 

8 witness’s background is and --

9 JUDGE BATES: So, let’s differentiate 

10 between the --

11 MR. CHALOS: Yes.

12 JUDGE BATES: -- identity and a requirement 

13 to confer about the identity.

14 MR. CHALOS: Yeah.

15 JUDGE BATES: What would the advantage be 

16 from a requirement to confer, if in fact you support 

17 that?

18 MR. CHALOS: Yeah, as the requesting party 

19 I’ve never felt any great need to select the witness, 

20 and I don’t think that would be that helpful. I don’t 

21 know who the best witness is for the producing party 

22 to address these issues, so, you know, a confer 

23 requirement is nice. I think a more direct 

24 requirement that the identity be disclosed really 
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1 addresses the issue more directly. I don’t feel that 

2 as a requesting party we should have much of a role in 

3 selecting the name of the witness.

4 MS. WITT: You noted in your comments that 

5 you sometimes see a 30(b)(1) deposition being taken in 

6 connection --

7 MR. CHALOS: Mm-hmm.

8 MS. WITT: -- with the 30(b)(6) notice --

9 MR. CHALOS: Right.

10 MS. WITT: -- and note in your view that 

11 might promote efficiency. Have you had experience 

12 where that has actually made the 30(b)(6) portion of 

13 the deposition problematic because of the distinction 

14 between testimony that’s binding on the corporation as 

15 its representative and the rest of the testimony?

16 MR. CHALOS: I don’t know that I’ve seen 

17 that be problematic. I think we specificity in the 

18 topics requested I think those issues are not as 

19 prominent, but I think what I see in practice is the 

20 defense lawyer, or the lawyer for the producing party, 

21 will say this is beyond the scope, you can answer in 

22 your individual capacity or something like that and it 

23 happens and its fine, and you know, we all know what 

24 the ground rules are.
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1 MS. WITT: Well, then how do those issues 

2 get resolved as a practical matter on the back end? 

3 Is that then something that has to be presented to the 

4 court as part of --

5 MR. CHALOS: It tends not to, I mean, in 

6 part because ultimately the use of that transcript 

7 would be for a trial and as we all know most of those 

8 cases don’t ultimately go to a trial, but the idea of 

9 being efficient by having an opportunity to ask a 

10 witness while he or she is there about their 

11 individual knowledge as well as what they are being 

12 designated to testify there, I think it’s incredibly 

13 helpful, it’s efficient, it saves everybody time and 

14 money and we can only prepare for that if we know who 

15 the witness is going to be.

16 PROF. MARCUS: Mr. Chalos.

17 MR. CHALOS: Yes.

18 PROF. MARCUS: Would that testimony in the 

19 individual capacity often be admissible against the 

20 company under Rule 801(d)(2) --

21 MR. CHALOS: I think --

22 PROF. MARCUS: -- regarding a matter within 

23 the person’s scope of employment?

24 MR. CHALOS: It may be. It depends who the 
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1 witness is, I think. I think if it is made by a 

2 person and it is under the rules otherwise admissible, 

3 then yes. But, you know, I don’t know that the 

4 requirement is that the witness be someone whose 

5 individual testimony would otherwise be admissible. 

6 Maybe, I think, is the short answer.

7 JUDGE ERICKSEN: Were you going to follow up 

8 on that?

9 JUDGE BOAL: If it may be --

10 MR. CHALOS: Mm-hmm.

11 JUDGE BOAL: -- would a requirement to 

12 disclose potentially change the calculus of the party 

13 that is responding to the deposition so that they 

14 would avoid having the 30(b)(6) witness say something 

15 that could be admissible as non-hearsay?

16 MR. CHALOS: Yeah.

17 JUDGE BOAL: That currently is not a factor, 

18 but as the responding person couldn’t you take that 

19 into account? 

20 MR. CHALOS: Yes. As a producing party I 

21 wouldn’t be smart enough to figure that all out, but 

22 maybe I guess. But, then of course, would not shield 

23 -- I mean, what we’re talking about is efficiency. If 

24 I want to take a witness’s deposition about their 
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1 personal knowledge I have other tools to do that. I 

2 can compel that testimony other ways. So, it may 

3 shield that witness from having relevant testimony 

4 about topics outside of the scope of the 30(b)(6) 

5 notice but I’m still able to get witness’s individual 

6 testimony on those topics through other means. So, 

7 I’m not sure if that -- I mean, for one day that may 

8 protect some information but in the long run I don’t 

9 know if it gets anybody anywhere.

10 JUDGE BATES: I have one last question if 

11 you could give a brief answer to and that is would you 

12 be in favor or not in favor of a notice requirement, 

13 say a 30 day notice requirement in the rule?

14 MR. CHALOS: For the deposition notice 

15 itself?

16 JUDGE BATES: Yes.

17 MR. CHALOS: You know, I think anytime you 

18 add in a concrete date I think you are going to run 

19 into issues, but I don’t think that we would be 

20 opposed to some notion that you have to give notice in 

21 a reasonable period of time for a meet and confer to 

22 occur and, you know, for the producing party to decide 

23 who their witness is going to be and prepare that 

24 witness. You know 30 days seems an awful long time, 
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1 and I don’t know what the right number is, but in 

2 terms of some reasonable period of time between notice 

3 and deposition so that the parties can work through 

4 these issues, yeah, I think we’d be fine with that.

5 JUDGE BATES: All right.

6 MR. CHALOS: On both sides.

7 JUDGE BATES: Thank you, Mr. Chalos. Thank 

8 you very much.

9 MR. CHALOS: Okay. Thank you.

10 JUDGE BATES: Our next witness is Mary 

11 Novacheck.

12 MS. NOVACHECK: Good morning.

13 JUDGE BATES: Good morning. 

14 MS. NOVACHECK: Do I need to push a button?

15 JUDGE BATES: You don’t need to do anything 

16 as long as the green light is on the microphone. 

17 MS. NOVACHECK: There we go. Thank you. 

18 Members of the Committee, my name is Mary Novacheck. 

19 I’m a partner with the law firm of Bowman and Brooke. 

20 We defend manufacturers nationally in product 

21 liability lawsuits. Often mass torts. Mass torts are 

22 bigger than MDLs, you’ve got an MDL in one state, or 

23 one federal court and then you will have a coordinated 

24 action in California, you’ll have one off cases 
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1 throughout the country. I have had experience since I 

2 started practicing in 1987 with these witness. I’ve 

3 been very committed to them for the following reason. 

4 Rule 30(b)(6) takes a human toll on the person that is 

5 asked to testify. These are not lawyers. They did 

6 not go to law school to become civil litigators. They 

7 are engineers, they are educated, they work in a very 

8 high level of professionalism and they are repeatedly 

9 deposed time and time again. 

10 I want to give you two concrete examples. 

11 When I first started practicing I assisted with the 

12 preparation of an automotive engineer who led the fuel 

13 system design department at one of Detroit’s big three 

14 auto makers. He was a great witness, excellent leader 

15 at the company. He had a very scientific simple 

16 explanation for why the location of the fuel tank that 

17 the plaintiffs were arguing was better was simply not. 

18 It was more dangerous, scientifically invalid. So he 

19 was a problem for the other side. That deposition was 

20 not about what did he know, what did the company know, 

21 it was endurance. How much of an attack could he 

22 take? How many times could he be called a liar, a bad 

23 engineer, someone who put profits over safety. This 

24 is what these depositions become. 
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1 PROF. MARCUS: Excuse me --

2 MS. NOVACHECK: Yes.

3 PROF. MARCUS: It sounds like that witness 

4 you’re talking about --

5 MS. NOVACHECK: Mm-hmm.

6 PROF. MARCUS: Would be a likely witness in 

7 the case anyhow, right?

8 MS. NOVACHECK: Yes, mm-hmm. Yes

9 PROF. MARCUS: So, all of the things you 

10 just mentioned could happen then.

11 MS. NOVACHECK: Yes, exactly. So, it’s not 

12 enough to simply modify the current proposed amendment 

13 to simply require disclosure. We need more. We need 

14 a procedural avenue as defense counsel for protecting 

15 those witnesses. 

16 PROF. MARCUS: So, what you’re talking about 

17 is something that would apply to all depositions of 

18 defense witnesses?

19 MS. NOVACHECK: Yes. All depositions under 

20 the context of this rule, for this reason.

21 PROF. MARCUS: No, I mean all depositions of 

22 all the defense witnesses?

23 MS. NOVACHECK: I think it would be helpful 

24 if we had the following procedure in effect for all 
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1 depositions. Right now I need to get a protective 

2 order before the deposition in order to be able to 

3 instruct my witness to not answer an obviously abusive 

4 question and obviously irrelevant question. If I 

5 don’t have a protective order in my pocket I run the 

6 risk of sanctions when I say I instruct you to not 

7 answer unless its privileged, right? So, the 

8 procedure that I need and I don’t have right now is a 

9 timeframe within which it’s reasonable for if we have 

10 true needs to define the scope. And I know the other 

11 side isn’t going to agree with me on it. And they 

12 don’t agree to give me time to get a protective order, 

13 I have to produce that witness and I take the risk --

14 JUDGE JORDAN: Well --

15 MS. NOVACHECK: Go ahead.

16 JUDGE JORDAN: You do have to produce that 

17 witness, but that’s true enough in every litigation 

18 setting, right, when you said an obviously abusive 

19 question.

20 MS. NOVACHECK: Mm-hmm.

21 JUDGE JORDAN: Don’t the rules provide for 

22 you to, in fact, say that’s it we’re stopping and I’m 

23 going to the court.

24 MS. NOVACHECK: I don’t think so. I don’t 
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1 think so.

2 JUDGE JORDAN: You don’t think you can do 

3 that?

4 MS. NOVACHECK: I think there’s a rule --

5 PROF. MARCUS: Doesn’t the rules say that 

6 you can instruct the witness not to answer in order to 

7 enable you to apply to the court for relief?

8 MS. NOVACHECK: As a defense lawyer, it is 

9 very risky.

10 PROF. MARCUS: The rules say that.

11 MS. NOVACHECK: I agree with you, but the 

12 lawyers -- the judges who hear these disputes -- first 

13 of all, I don’t like to bring discovery disputes in 

14 front of a judge. You guys don’t like discovery 

15 disputes. You have the most difficult criminal 

16 dockets in the country and I sit there and I come up 

17 and I need to talk to you about my deposition --

18 JUDGE JORDAN: That’s true, but you’ve 

19 posited your hypothetical with obvious abuse, so if 

20 there -- what makes your job hard? Your job is hard 

21 because you have to decide at what point is this 

22 obviously abusive and will a judge agree with me? 

23 That’s not an easy job, but you do have a mechanism in 

24 the rules to stop abuse, don’t you?
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1 MS. NOVACHECK: What I don’t have in the 

2 rules, and it’s inconsistent in the district courts, 

3 is a procedure that says if I move for protective 

4 order, the deposition is off the calendar.

5 JUDGE JORDAN: And I think the response that 

6 we see in the papers is that’s exactly what plaintiffs 

7 lawyers don’t want because then that puts the tool in 

8 the hands of defense counsel to needlessly delay the 

9 progress of the suit, it becomes a tactical weapon. 

10 And I guess I’m wondering what is the defense side 

11 response to that to prevent it from, in fact, becoming 

12 what they fear it would be?

13 MS. NOVACHECK: I think the defense concern 

14 is that this rule is not like other rules. Other 

15 rules you have an opportunity to effectively object 

16 and narrow the scope through the rule. Here I don’t 

17 have that.

18 JUDGE BATES: You say other rules. Do you 

19 mean other depositions under Rule 30 --

20 MS. NOVACHECK: 33, 4 --

21 JUDGE BATES: -- or do you mean rules?

22 MS. NOVACHECK: Yep, 33, 34, 35.

23 JUDGE BATES: What about keeping it to a 

24 comparison of depositions under Rule 30.
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1 MS. NOVACHECK: Mm-hmm.

2 JUDGE BATES: Why an objection procedure --

3 which I take it is what you are arguing for.

4 MS. NOVACHECK: Yes.

5 JUDGE BATES: For 30(b)(6), but not for 

6 other Rule 30 depositions.

7 MS. NOVACHECK: Well the scope of --

8 JUDGE BATES: What’s the special thing about 

9 30(b)(6) that should warrant an objection procedure?

10 MS. NOVACHECK: I think it’s this: We don’t 

11 have to prepare those witnesses in a fact witness 

12 setting the way we need to in a corporate setting. 

13 Those people work many, many long hours and they take 

14 their away from their business role and they are asked 

15 to sit there and endure a very grueling examination. 

16 That’s fine, this is a good rule. But I think in the 

17 fact witness setting there is more comfort for that 

18 witness if they say I don’t know. In 30(b)(6) I tell 

19 my witnesses you may not say I don’t know. You may 

20 say the corporation doesn’t know, but even that is 

21 hard to say. They have to work hard. They receive 

22 threats all the time that they are not prepared.

23 I do want to tell you, and I know my time is 

24 up, but I did want to tell you I’ve seen people have 
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1 heart attacks, I’ve seen people leave their company 

2 because they constantly hear that they are careless, 

3 they are -- take profits over safety and they leave 

4 their companies. I’ve seen much more damage on the 

5 human side than we’re talking about here. We’re 

6 talking about what the lawyers have to do. When you 

7 go back and decide what to do next, please think about 

8 ways you can help these people meaningfully prepare in 

9 a commonsense approach. Thank you very much.

10 JUDGE BATES: Thank you, Ms. Novacheck. 

11 Next witness, Sherry Rozell.

12 MS. ROZELL: Good morning.

13 JUDGE BATES: Good morning.

14 MS. ROZELL: Thank you for the opportunity 

15 to speak with you today regarding the proposed 

16 amendment. My name is Sherry Rozell. I am a partner 

17 at the law firm of McAfee & Taft, with offices in 

18 Missouri and Oklahoma. I’ve been a litigator for over 

19 30 years and I’ve spent my career, much of it in 

20 federal court, and I have extensive experience with 

21 Rule 30(b)(6) witnesses and preparing and defending 

22 Rule 30(b)(6) depositions.

23 I’d like to talk about two issues this 

24 morning: One is the significant issue regarding the 
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1 meet and confer requirement for the identity of 

2 corporate representatives and secondly I’d also like 

3 to address something that’s not in the proposed Rule 

4 and that is the need for a specific notice and 

5 objection procedure, and that would really further the 

6 goals of Rule 1 to achieve prompt and efficient 

7 resolutions of dispute.

8 So, first with regard to the meet and confer 

9 requirement, um, you’ve heard from others I think in 

10 the Phoenix panel, but by injecting a meet and confer 

11 requirement regarding identity it creates a new 

12 discovery obligation that really diminishes the 

13 organization’s right to choose who will be their 

14 company spokesperson, the face of the company at trial 

15 and who most accurately expresses the company 

16 knowledge on the topics that are at issue and who will 

17 provide that binding testimony on behalf of the 

18 organization. And the identity of the deponent is 

19 completely in the purview of the organization. It’s 

20 not something that is currently required to be 

21 disclosed and courts have routinely held that it’s 

22 actually irrelevant to the process. 

23 MR. SELLERS: Excuse me.

24 MS. ROZELL: Yes.
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1 MR. SELLERS: Ms. Rozell?

2 MS. ROZELL: Yes.

3 MR. SELLERS: If -- wouldn’t you prefer to 

4 have the identity or the concern, any concerns, about 

5 the choice of the witness raised with you before the 

6 deposition rather than in the middle of a deposition, 

7 even if you choose to ignore them or don’t agree with 

8 them?

9 MS. ROZELL: I actually have not ever had in 

10 my practice any pushback on the identity of a witness. 

11 It’s not ever been a source of controversy. Now I 

12 have gotten into issues about the preparedness of the 

13 witness but never the identity so I don’t find that in 

14 practice to be an issue. 

15 JUDGE JORDAN: Do you --

16 JUDGE ROSENBERG: Do you identify -- yeah, I 

17 was going to ask the same question.

18 MS. ROZELL: Sometimes I do and sometimes I 

19 don’t. It’s really a case by case basis.

20 JUDGE JORDAN: Is there a practice though, 

21 do you find that more often than not you are letting 

22 people know in advance, even if it's just a couple 

23 days?

24 MS. ROZELL: It really depends. I wouldn’t 
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1 say that more often I do or more often I don’t. Most 

2 recently I just finished up a four corporate 

3 representative depositions. I did end up disclosing 

4 two days before the deposition the identities of the 

5 witness and the topics, but it was not --

6 JUDGE JORDAN: Did that disclosure create 

7 any difficulty? I mean, did something untoward happen 

8 because of it?

9 MS. ROZELL: In that particular case it 

10 didn’t. Like I say, it’s really a case-by-case basis 

11 and I think the thing that the committee needs to keep 

12 in mind is that providing a rigid rule, kind of a one 

13 size fits all rule, really can lead to some issues.

14 JUDGE BATES: What would be the reason, just 

15 as a generality, that you would use for not 

16 identifying the witness? When you make this case by 

17 case determination, why would you choose not to 

18 identify the witness?

19 MS. ROZELL: Well, there is a long process 

20 in identifying the right person and preparing them and 

21 we may not be comfortable until shortly before the 

22 deposition to provide the identity of the witness.

23 JUDGE BATES: Let’s assume you get to that 

24 point that you know who the witness is. Why would you 
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1 decide not to divulge that?

2 MS. ROZELL: Well, it’s really not an 

3 important issue as it relates to the deposition. The 

4 process is provided to provide the testimony on 

5 particular topics of a corporation and who it is is 

6 really irrelevant as many courts have held. And so --

7 JUDGE BATES: That’s true in every case 

8 though. But go ahead.

9 MS. ROZELL: But I do want to make sure we 

10 are focusing on what the proposed rule is. It’s not 

11 merely identifying the witness, but there is that 

12 critical meet and confer requirement that’s included. 

13 And that’s really the rule that we are analyzing, 

14 determining whether it's appropriate or not. And I 

15 think that the fact that the identity of the deponent, 

16 who is chosen, is completely within the purview of the 

17 organization. That concern was recognized by the 

18 Committee and the comments indicating that well the 

19 named organization ultimately has the right to choose, 

20 a discussion about the identity might later avoid 

21 disputes. I actually think it will increase disputes 

22 because it’s unclear --

23 MS. TADLER: I’m sorry, can I ask you a 

24 question? You talked about this recent experience 
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1 that you had with four corporate deponents. Was that 

2 in response to a single 30(b)(6) notice that had a 

3 variety of topics and you had to make a determination 

4 that there would be multiple people to have to be put 

5 forward?

6 MS. ROZELL: Yes, that’s correct.

7 MS. TADLER: Yes. So, why wouldn’t it be 

8 the case that the meet and confer component would give 

9 you the opportunity given the number of topics to 

10 better assess whether the people you are identifying 

11 are the right people. Wouldn’t that help to make the 

12 deposition, or series of depositions if you will, more 

13 efficient ultimately because you will have not only 

14 talked about the identity, but you will talk about who 

15 is going to speak to which topics that have been 

16 identified in that notice. Won’t that streamline 

17 things?

18 MS. ROZELL: No, I don’t think so. And I 

19 think actually what happened in that case is a great 

20 example of things that occur in practice. We had 

21 extensive meet and confers over the deposition topics. 

22 The topics were voluminous. There were some 

23 misunderstandings on both sides as to what the 

24 plaintiffs were requesting, what the organization was 
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1 willing to do so we spent a lot of time on the topics. 

2 Frankly, not once did the issue about the identity of 

3 the witness come up because the plaintiffs were 

4 interested in getting information about the topics, 

5 they weren’t really interested in who it was that 

6 would be provided so long as they got the information 

7 that they requested.

8 MS. TADLER: So, in that instance the 

9 opposing counsel did not ask you in the course of the 

10 meet and confer the identities of the witnesses?

11 MS. ROZELL: No, they had not. And I 

12 typically don’t get that request during the --

13 MS. TADLER: You typically do not?

14 MS. ROZELL: Not during the meet and confer 

15 process, no.

16 MS. TADLER: If you were asked in the course 

17 of the meet and confer process, would it be your 

18 practice to identify who those people were?

19 MS. ROZELL: No, it wouldn’t be because we 

20 are essentially meet and conferring long before the 

21 deposition actually occurs and I can’t really identify 

22 who the witnesses are until I understand what the 

23 topics are and the breadth and scope of those. So 

24 really I am not in the position during that early meet 
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1 and confer process to even talk about that because we 

2 haven’t fully refined the topics or know who the 

3 appropriate deponents would be.

4 JUDGE BATES: Ms. Rozell, we’ve run out of 

5 time. You didn’t even get to your second point, I 

6 guess, did you submit written materials? No, you 

7 didn’t. 

8 MS. ROZELL: I am going to by the deadline 

9 of the 15th and I would urge specific notice and 

10 objection procedure similar to Rule 35, or 45, I’m 

11 sorry.

12 JUDGE BATES: Thank you, Ms. Rozell. Next 

13 we will hear from Bruce Parker.

14 MR. PARKER: Good morning, Your Honor.

15 JUDGE BATES: Good morning.

16 MR. PARKER: Good morning and thank you for 

17 allowing me to talk today. My name is Bruce Parker. 

18 I’m a partner in the Venable law firm, practicing for 

19 41 years, the last 30 or which have been almost 

20 exclusively in the drug and medical device litigation 

21 and that exclusively in the MDL setting and trial 

22 counsel for most of the so-called bellwethers in those 

23 MDL cases I’ve tried. I’m here today to talk about 

24 strongly against, and hopefully persuasively, the 
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1 mandate to meet and confer on the selection of my 

2 corporate designee. 

3 The most important thing before we go into 

4 trial -- I can’t say the -- one of the most important 

5 things before we go into trial is sitting down with my 

6 client and selecting who is going to be the face of 

7 the corporation. Frankly, I shouldn’t have to. And I 

8 cannot comply with a mandate to meet and confer on

9 that selection process in good faith without invading 

10 my mental impressions, my work product. I submitted a 

11 comment in December that discusses at some length the 

12 work product implications of this rule and I’ll try 

13 not to repeat my comments today. But I cannot sit 

14 down with a plaintiff’s counsel, in my world it's 

15 always a plaintiff asking, and explain why I chose A 

16 versus B or whether the other individuals that the 

17 plaintiffs thought might be more appropriate we didn’t 

18 choose. I simply cannot do that without giving some 

19 advantage away and/or sharing thoughts that I’ve had 

20 with my client. I would encourage the members of the 

21 Committee to go back --

22 JUDGE JORDAN: Can I ask you a question, Mr. 

23 Parker?

24 MR. PARKER: Yes.
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1 JUDGE JORDAN: First, is it not possible to 

2 have a meet and confer that involves simply 

3 identifying the witness and then responding if 

4 somebody says I don’t think you understand we are 

5 trying to get this certain technical information, I’m 

6 not sure how the Vice President of X is going to be 

7 able to speak to the technical piece of this. Does 

8 that -- does responding to their question, even if 

9 it's just to say well, he or she’ll be prepared on 

10 that. Is that invading your work product?

11 MR. PARKER: No, it’s not invading, but I 

12 see no benefit, other than driving up cost of 

13 litigation, for me to have a discussion with 

14 plaintiff’s counsel if they have given me a notice 

15 with reasonable particularity, I will know what they 

16 want to get at in a deposition.

17 And let me segue on that point. I read at 

18 the Phoenix hearing there were complaints about 

19 witnesses not being prepared, and I thought about that 

20 and I think that is somewhat disingenuous. There is a 

21 correlation in my experience between how well my 

22 witness is prepared and how long that deposition goes.

23 A plaintiff’s lawyer, again in my world, sometimes 

24 it’s a defense lawyer, but in my world a plaintiff’s 
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1 lawyer who if I have not done my job and brought forth 

2 a corporate designee who is not prepared, the 

3 plaintiff’s lawyer goes before one of you in a Rule 37 

4 and will try to paint my client, and me, in a way 

5 that’s not favorable, but also and more importantly, 

6 goes to the jury with that deposition in hand and now 

7 paints the picture that the plaintiff wants in front 

8 of a jury. A defense lawyer in a corporate designee 

9 deposition would be foolish not to have a person 

10 prepared to address topics with reasonable 

11 particularity -- 

12 JUDGE JORDAN: How about --

13 MR. PARKER: -- in that setting.

14 JUDGE JORDAN: -- moving to the issue that 

15 you heard, if you read the Phoenix transcript and 

16 you’ve been seeing the questioning here, what about 

17 moving away from meet and confer to simply a 

18 requirement to disclose the identity some reasonable 

19 period in advance?

20 MR. PARKER: I think the only reason for 

21 doing that -- and Your Honor asked a question -- in my 

22 world drug and medical device, there isn’t anybody 

23 that has taken a deposition of a corporate designee of 

24 a company who doesn’t know that that company has given 
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1 a corporate designee deposition in that litigation 

2 previously. I do, on occasion -- remember my world 

3 is usually case management orders, so oftentimes this 

4 is ordered by the judge in the context, we live 

5 outside the civil rules to some extent in MDLs. I, if 

6 I have the option and I’m asked, I may share that if I 

7 think the plaintiff’s attorney is professional from 

8 past experience and will deal with the issues as they 

9 are to be dealt with, namely the knowledge of the 

10 corporation. But if I know that plaintiff’s attorney 

11 is one who likes to play games, and that deposition is 

12 going to turn into a personal questioning of that 

13 witness then I won’t share that. I see no advantage 

14 to my client and my witness to get that beforehand.

15 JUDGE JORDAN: And if you were on the other 

16 side would you see an advantage in knowing it in 

17 advance so that if the witness had given four 

18 depositions previously you could be prepared to 

19 actually cross-examine the testimony questioning the 

20 answers you were getting in that deposition?

21 MR. PARKER: Oh, sure. If I were a 

22 plaintiff’s lawyer I would like all the advantages I 

23 could possibly get, so sure.

24 JUDGE JORDAN: And then wouldn’t that be 
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1 from then a, not an advocate’s perspective, a 

2 perfectly fair and reasonable thing to have the other 

3 side know in advance that you, the defense, are going 

4 to put forward somebody who's been deposed in four 

5 other cases so that they can be understood when they 

6 are answering questions to be either consistent or 

7 inconsistent with what they’ve said before?

8 MR. PARKER: In my world, Your Honor, they 

9 know that already, because we live in a very confined 

10 drug and medical device, they know what the product 

11 is.

12 JUDGE JORDAN: That’s your world, so if it’s 

13 working in your world, why wouldn’t it be fair for it 

14 to work in the rest of the world?

15 MR. PARKER: Well, I didn’t say that it 

16 works in my world. Remember I said I don’t give that 

17 name to lawyers that I know are going to game the 

18 system.

19 JUDGE BATES: Well, Mr. Parker --

20 MR. PARKER: -- and make this is personal 

21 attack.

22 JUDGE BATES: -- it sounds like you’re 

23 talking about your world, of course we have to make 

24 rules for --
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1 MR. PARKER: Of course, Your Honor.

2 JUDGE BATES: -- the whole world, not just 

3 your world. But, it’s also true that it sounds like 

4 you want to retain, with respect to the identity of 

5 the witness, you want to retain some advantage for 

6 particular cases depending on your assessment of the 

7 case and the lawyer on the other side. Why shouldn’t 

8 we want to even the playing field by just saying 

9 identify the witness some reasonable time in advance?

10 MR. PARKER: You know what --

11 JUDGE BATES: So we take away this tactical 

12 advantage that you’re trying to keep in certain cases.

13 MR. PARKER: I don’t think it’s a tactical 

14 advantage if you’re -- if the question is prior 

15 depositions, then fine. If I were faced with a rule 

16 with a case management order saying if I’m going to 

17 produce a corporate designee who has previously 

18 testified give them the transcripts. Okay, I’ll give 

19 them the transcripts. That addresses the tactical 

20 advantage. It’s the case where the witness has not 

21 been previously deposed and in some plaintiffs, I’m 

22 not speaking with a broad brush as to all, that 

23 becomes the focus -- and you’re going to hear some 

24 stories today about what has happened in somebody’s 
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1 depositions where the individuals have the ability to 

2 do the personal investigation. I think I’m out of 

3 time --

4 JUDGE BATES: You are.

5 MR. PARKER -- but I want to leave -- can I 

6 have one question? Please read your commentary to 

7 Rule 26(b)(3) and (b)(4) that were passed in 2010. 

8 The committee said we’re making the changes -- and 

9 your to be commended because it’s worked wonderfully 

10 in eight years -- that we’re not going to allow 

11 discussions between counsel, plaintiff or defendant, 

12 and their experts because that’s not what the focus 

13 should be. The focus should be on the issues. It’s 

14 worked wonderfully and for all the reasons in that 

15 rule about protecting the work product privilege, that 

16 spirit, this rule goes against the grain of that 

17 thinking. Thank you.

18 JUDGE BATES: Thank you, Mr. Parker.

19 Next, Patrick Seyferth, please.

20 MR. SEYFERTH: Thank you. Good morning. My 

21 name is Patrick Seyferth. After 10 years in 

22 litigation practice I started a firm called Bush 

23 Seyferth Kethledge & Paige in Detroit. My partner, 

24 Ray Kethledge is got an elevation to the Court of 
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1 Appeals for the Sixth Circuit, our firm is now Bush 

2 Seyferth & Paige. We are outside of Detroit. We are 

3 a 60 lawyer firm, majority woman owned firm and the 

4 largest woman owned litigation firm in the state of 

5 Michigan. We do both individuals and companies heavy 

6 amount of automotive work because of what we do in 

7 Detroit. Myself, personally, I’ve defended well over 

8 a hundred 30(b)(6) depositions and taken many 30(b)(6) 

9 depositions.

10 I would echo a lot of the comments, and I 

11 haven’t read all these transcripts from Arizona, but 

12 having, you know, read the rule itself there is harm 

13 in my view both prior to the deposition and during the 

14 deposition. And that harm prior to the deposition is 

15 caused by the internal inconsistency with the draft of 

16 the rule as written. I mean, the rule is the 

17 designation by the corporation where the burden is on 

18 the corporation to designate a witness. The flip side 

19 to that is that the corporation is bound by the 

20 testimony.

21 Now, if you read the rule as written, after 

22 the designation requirement by the organization it 

23 segues into the requesting party then having a seat at 

24 the table, at that -- and the commentary goes on to 
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1 say but the ultimate decision is the corporation. So, 

2 the internal inconsistency itself upsets a really 

3 careful balance that this Rule has provided in the 25 

4 years that I’ve dealt with it and will create, if the 

5 rule is adopted as changed, just an inherent 

6 unfairness.

7 Because what you’re allowing by the Rule, 

8 respectfully, would be my adversary to have a seat at 

9 the table and a pick with regard to my designated 

10 hitter and that’s just not the way it works. The 

11 designee can bind the corporation, and there’s been a 

12 lot of stories about the import of that with regard to 

13 witnesses, and those stories are true and these 

14 witnesses take these extremely serious. So that’s 

15 point one.

16 Point two is there is a procedural defect 

17 within this Rule because by having a “meet and confer” 

18 requirement you are injecting the rule, respectfully, 

19 injects a conflict where none, you know, exists. It’s 

20 a dispute.

21 PROF. MARCUS: So you are opposed to having 

22 any discussion of the topics?

23 MR. SEYFERTH: Well, the meet and confer 

24 requirement, that description -- and I’m only going by 
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1 the rule as written, respectfully, would inject,

2 basically, a dispute process. And so it’s not, in my 

3 view, an appropriate approach to it because there is a 

4 response which already exists which is, you know, a 

5 party can go to the court if there is an improper or 

6 inadequate deposition or the topics are inadequately 

7 prepared, it is in my view inviting a dispute where 

8 none exists.

9 JUDGE BATES: So, just to repeat the 

10 question --

11 MR. SEYFERTH: Sure.

12 JUDGE BATES: -- slightly differently. 

13 You’re opposed both to a meet and confer with respect 

14 to the number and description of the topics and to a 

15 meet and confer with respect to the identity of the 

16 witness?

17 MR. SEYFERTH: Well, respectfully, the 

18 answer is yes, I do oppose both and I submit that on 

19 behalf of myself. I’m not here representing any car 

20 company, but respectfully, there should be a process 

21 if there is going to be a change to the rule which 

22 would mechanize a process for objections and if there 

23 is an issue with regard to the topics then that could 

24 be done. But by creating a rule and saying meet and 
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1 confer, especially for Your Honor, you know, then 

2 you’re before the court on issues and disputes where 

3 none may exist.

4 JUDGE BATES: But we hear from most 

5 witnesses that there is informally a meet and confer 

6 that takes place, maybe not as to the identity of the 

7 witness, set that aside for the moment, but there is a 

8 discussion that takes place so why would this rule be 

9 inserting something that isn’t already taking place?

10 MR. SEYFERTH: Well, I mean, I agree with a 

11 lot of the counsel that was up here sometimes that 

12 happens, sometimes it does not. Sometimes there is a 

13 identification of the witness, most times we do not. 

14 We typically will respond and object to if the scope 

15 is too broad redefine it and then have that issue 

16 before the court in advance of the deposition. But by 

17 requiring the meet and confer --

18 JUDGE BATES: But if it’s too broad, isn’t 

19 it better to have a meet and confer to discuss it 

20 rather than bringing it before the court?

21 MR. SEYFERTH: Well, respectfully, if it’s 

22 too broad it’s something that then the parties, you

23 know, after the objection would be dealing with with 

24 regard to, you know, a motion practice, but why would 
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1 the rule, I guess, invite that. And the last thing I 

2 would just say --

3 MS. TADLER: I’m sorry, can I just ask a 

4 question?

5 MR. SEYFERTH: Sure.

6 MS. TADLER: Do you not appear before courts 

7 where judges have individual rules that require you in 

8 any event to meet and confer before some kind of 

9 discovery dispute is brought before them?

10 MR. SEYFERTH: Typically that is often the 

11 case before a discovery dispute is brought before you, 

12 but by the rule injecting meet and confer, you know, 

13 as part of it its suggestive that there is a discovery 

14 dispute. If the committee wants to come up with a 

15 different rule and mechanize a process whereby there 

16 is a response date within which you provide objections 

17 to that and then there could be a dialogue, you know, 

18 that would be something but a lot of the dialogue is 

19 discussing things around the rule as written. Nobody 

20 here is really --

21 JUDGE JORDAN: Let me make sure I understand 

22 what you’re saying.

23 MR. SEYFERTH: Sure.

24 JUDGE JORDAN: You’re -- are you saying that 
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1 its not so much a problem if there were a requirement 

2 to meet and confer, the problem is that if there were 

3 meet and confer there’s not a structure in advance to 

4 deal with disputes?

5 MR. SEYFERTH: Well, respectfully, there 

6 would be a big problem if there was a meet and confer 

7 and there was a potential to upset the balance of 

8 designating the witness. If --

9 JUDGE JORDAN: I’m sorry --

10 MR. SEYFERTH: Right.

11 JUDGE JORDAN: -- leave the witness 

12 designation piece out of this. We’ve been talking, I 

13 thought, here for a minute about --

14 MR. SEYFERTH: Okay.

15 JUDGE JORDAN: -- about just the topics and 

16 scope and things --

17 MR. SEYFERTH: Sure.

18 JUDGE JORDAN: -- like that. Is your 

19 objection to meeting and conferring about that, that 

20 there’s a lack of structure?

21 MR. SEYFERTH: Well, certainly if there were 

22 just the rule as written that would be a lack of a 

23 process and specific structure within which to handle 

24 that, so I believe if there is going to be a change 
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1 where there is a discussion and articulation of topics 

2 then that should be a mechanized approach as part of 

3 the other rules.

4 JUDGE BATES: I think -- I think speaking 

5 for a lot of judges, maybe not all judges, and 

6 certainly not all the judges sitting here, but their 

7 view is that things get worked out if the parties talk 

8 about them, if counsel talk about them. So, why isn’t 

9 a meet and confer requirement a way to add efficiency 

10 and get things worked without having to bring them 

11 through a formal process to the magistrate judge or 

12 district judge?

13 MR. SEYFERTH: Well, as it relates to the 

14 identification, that part of it suggests --

15 JUDGE BATES: Forget the identification of 

16 the witness. 

17 MR. SEYFERTH: But as it relates --

18 JUDGE BATES: I’m with Judge Jordan on that.

19 MR. SEYFERTH: As it relates to the topics 

20 itself, I believe that if you were going to do that 

21 the meet and confer should only be after a mechanized 

22 process is put forth and that process is played out 

23 and not the defective. Otherwise you are injecting 

24 and inviting a dispute that doesn’t exist. In 30 
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1 years, or 25 years, I don’t recall motions where we 

2 haven’t properly prepared the witness and I just think 

3 this is a problem that doesn’t actually exist. If it 

4 did, the happiest person in the room would be the 

5 plaintiffs lawyers because you would have a bunch of I 

6 don’t knows and these depositions when used at trial 

7 were purging now are conflated when you get into 

8 individualized issues and then Facebook and all these 

9 other things, you know, are allowed to be discussed. 

10 So the rule invites a conflation of what its intent is 

11 to be, which is corporate knowledge, personal 

12 knowledge and these other things, the plaintiffs 

13 lawyer from Tennessee said they have a way to get at 

14 that. Thank you for your time.

15 JUDGE BATES: Thank you, Mr. Seyferth.

16 Next we’ll hear from Sharon Caffrey.

17 MS. CAFFREY: Thank you. I’m Sharon Caffrey 

18 and I want to thank you on behalf of myself and my law 

19 firm, Duane Morris, for allowing us to speak to the

20 committee today about the proposed changes. I am the 

21 co-chair of our trial practice group which is about 40 

22 percent of an 800-person international law firm and we 

23 represent organizations as both plaintiffs and 

24 defendants. My particular practice is in the product 
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1 liability area where I tend to represent defendants 

2 more than working on the other side, but I do have 

3 occasion through indemnity claims to notice corporate 

4 designee depositions of other companies and third 

5 parties as well as defending them.

6 I would like to address the issue we’ve been 

7 talking about today, both the requirement to have a 

8 meet and confer about the topics and the identity of 

9 the witness and I think the best way for me to do this 

10 is to illustrate it through some examples. The -- I 

11 had a recent case in which we filed a motion to 

12 dismiss based on personal jurisdiction.

13 The plaintiff’s counsel asked for a 

14 deposition to test the affidavit in support of our 

15 motion. The judge allowed the deposition and I then 

16 received a notice that went so far beyond testing the 

17 affidavit on personal jurisdiction that it required us 

18 to draft and prepare extensive objections to the 

19 notice. Based upon the fact that I had an order from 

20 the court telling me to give a deposition on the 

21 personal jurisdiction issues and I had filed 

22 objections, or served objections, on opposing counsel 

23 to the areas outside of personal jurisdiction we 

24 proceeded with the deposition.
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1 We prepared our witness, proceeded with the 

2 deposition. The client was located in Florida, I’m in 

3 Philadelphia, it required a couple trips to prepare 

4 the witness to search for and obtain all the 

5 documents, to serve the documents, et cetera.

6 At the deposition -- oh, before the 

7 deposition I did meet and confer with plaintiff’s 

8 counsel about the topics of the deposition and asked 

9 him to take the deposition pursuant to our objections 

10 and to not probe the areas outside of the scope of the 

11 notice as we agreed it was proper. Plaintiff’s 

12 counsel agreed to limit his depositions to the areas 

13 that were not objected to and then at the deposition 

14 proceeded to depose my corporate designee on the areas 

15 outside of our agreement. We put all the objections 

16 on the record, proceeded with the deposition and at 

17 times I instructed the witness not to answer because 

18 plaintiff’s counsel was probing areas that went into 

19 the company’s relationship with other entities, 

20 foreign entities, and subsidiaries and unrelated 

21 companies.

22 After that deposition, plaintiff’s counsel 

23 moved to compel another deposition because my client 

24 had -- my witness had not answered all of the 
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1 questions. This exemplifies the problem that we will 

2 have if there is a meet and confer without meaningful 

3 guidance as to whether or not we have to take 

4 objections to the court prior to the deposition or if 

5 we have to wait until after, whether we can tell our 

6 witness not to answer.

7 JUDGE JORDAN: I apologize, Ms. Caffrey. 

8 I’m not following --

9 MS. CAFFREY: Okay.

10 JUDGE JORDAN: -- why a meet and confer 

11 obligation, which you actually went through in the 

12 example you just gave is more -- makes it more likely 

13 that you will have a problem at the deposition.

14 MS. CAFFREY: The -- it’s not the meet and 

15 confer obligation that I have the issue with, Your 

16 Honor, my request is that there is more meat to what 

17 has to happen, or more guidance.

18 JUDGE JORDAN: So you want structure?

19 MS. CAFFREY: I want structure. I want 

20 guidance.

21 JUDGE JORDAN: An objection structure?

22 MS. CAFFREY: An objection and a procedure 

23 for resolving objections because in this instance, you 

24 know, I’m now at three trips to Florida to meet with 
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1 and prepare a witness for a case that shouldn’t be in 

2 my jurisdiction at all and ultimately we won on the 

3 motion to dismiss, but it was at a very high expense 

4 to a small company.

5 JUDGE BATES: And is there something unique 

6 about 30(b)(6) as opposed to other Rule 30 

7 depositions?

8 MS. CAFFREY: Yes.

9 JUDGE BATES: Which there are many more that 

10 should support an objection procedure for 30(b)(6), 

11 but not for the rest of Rule 30?

12 MS. CAFFREY: Yes.

13 JUDGE BATES: What?

14 MS. CAFFREY: And that is in a Rule 30(b)(6) 

15 we get a notice for a corporate designee that’s 

16 speaking on behalf of the company and it is, there is 

17 supposed to be a list of specific topics to be covered 

18 and when you sit down to prepare a witness for that it 

19 is quite cumbersome. You know, you are often going 

20 back looking for documents that are very old. You may 

21 or may not have them. They may or may not be in 

22 storage. It takes time, it’s tedious in order to 

23 prepare the witness properly to respond to the notice 

24 so that you don’t get the complaint that your witness 
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1 was unprepared.

2 Once you get -- you meet with your witness, 

3 you sit down and you prepare them on the topics you 

4 think that they are going to be asked questions on 

5 those topics, and they should be, and your opponent

6 should think that you should be able to prepare your 

7 witness based on the available information at the 

8 corporation.

9 In a regular deposition under Rule 30, you 

10 are getting a deposition of somebody with personal 

11 knowledge. You know, yes they'll meet with counsel, 

12 they may go over documents, but it is their knowledge 

13 and their experience and their involvement in the 

14 product or their involvement in the contract 

15 negotiations, so they are speaking for themselves and 

16 their knowledge. They're not being prepared on the 

17 corporation’s knowledge and so the meet and confer 

18 with regard -- and the specification of topics with 

19 regard to a 30(b)(6) is so critical because it's 

20 really expensive, it's really time consuming and it 

21 takes great effort to properly prepare a 30(b)(6) 

22 witness.

23 So I think we need guidance on how to handle 

24 it. You don’t get a notice with specified topics for 
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1 a fact deposition. You get a notice of a deposition 

2 typically.

3 JUDGE BATES: What is it about the existing 

4 rule, not the proposed rule, with the existing rule 

5 that has made it so that these issues can’t be 

6 resolved through protective orders and the process 

7 that does exist for all depositions?

8 MS. CAFFREY: I think that the rule as it is 

9 now just lacks guidance. From my perspective, you 

10 don’t know whether you need to get the protective 

11 order before the deposition. You meet and confer --

12 if you meet and confer with your opposing counsel then 

13 you get a deposition notice that doesn’t seem to fit 

14 the litigation or is too broad. You don’t have any --

15 you think you have an agreement, there’s no way to get 

16 an order from the agreement. If you have a counsel 

17 who doesn’t stick to their agreement it’s a 

18 problematic situation. We don’t know whether we have 

19 the right to tell the witness not to answer when there 

20 are questions outside the scope of the notice, or 

21 personal question to the witness and that does happen 

22 on a lot of occasions.

23 So, you know, they are not there to speak 

24 for themselves, they are there to speak for the 
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1 corporation, their personal lifestyle, wealth, 

2 whatever is irrelevant, but that’s the kind of 

3 questions you can get so I do think there needs to be 

4 some structure and some guidance as to when you file 

5 objections, whether you need to move on them before 

6 the deposition or whether you can simply instruct the 

7 witness not to answer outside the notice and then let 

8 the other party go to the court and explain why they 

9 need more information outside the notice that they 

10 gave. And then you might have to prepare a whole new 

11 witness in that instance. 

12 JUDGE BATES: All right. Thank you, Ms. 

13 Caffrey.

14 MS. CAFFREY: Thanks.

15 JUDGE BATES: Next we’ll hear from Terrence 

16 Zic.

17 MR. ZIC: Good morning.

18 JUDGE BATES: Good morning.

19 MR. ZIC: I’m Terrence Zic. Thank you for 

20 having me. I’m a partner at Whiteford Taylor & 

21 Preston. While I have not sat on a committee like 

22 this, I have chaired two trial courts nominating 

23 commissions so I appreciate the time the committee 

24 puts into its work.
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1 I’m going to go a little off-script because 

2 I’d like to follow up on comments made by Ms. Rozell 

3 and Ms. Caffrey on a couple of particular topics. 

4 Typically in my practice what I see are notices that 

5 contain somewhere between 30 and 100 matters for 

6 examination. Sometimes there are that many document 

7 requests and sometimes there is one document request 

8 that says all documents relative to all of our matters 

9 for examination. In the last couple of months I 

10 received a deposition notice with 177 matters for 

11 examination and 175 document requests.

12 JUDGE BATES: What did you do in that case?

13 MR. ZIC: That case --

14 JUDGE BATES: Did you just go forward with 

15 the deposition?

16 MR. ZIC: That case we are still in the meet 

17 and confer process, Your Honor. But I do want to tell 

18 you about a case where we did kind of come to 

19 conclusion through a motion.

20 JUDGE BATES: And in the meet and confer 

21 process are you narrowing down the topics?

22 MR. ZIC: We are asking them to talk to us 

23 about it but the case was recently removed off of an 

24 expedited docket so it’s been backburnered, but I 
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1 mention that because of the number of topics. So, in 

2 a case in federal court in Baltimore last year we were 

3 served late in the game, which is usually the case, 

4 late in the discovery process with over 50 matters for 

5 examination, many of which asked for decades of 

6 information, hundreds of product that the plaintiff 

7 did not come into contact with and some matters that 

8 we considered to be either attorney-client privileged, 

9 work product, or asked for confidential company 

10 information.

11 We dutifully sat down, wrote a very detailed 

12 meet and confer letter, had long conversations with 

13 the opposing side. It moved a little bit in terms of 

14 scope, but that was it. We had to go to motion, it 

15 was an all-day hearing. We were very successful in 

16 the order that we got, and then the case was remanded 

17 back to state court and counsel turned around and 

18 served the same notice that they did the first time 

19 all over again.

20 So I just want to add -- so that my little 

21 comment about how this works with identifying the 

22 witness, meeting and conferring about the identity of 

23 the witness, had that been part of that mix it would 

24 have made it that much more complicated, and quite 
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1 frankly, we can’t even have a discussion with our 

2 client about who we are going to identify until all of 

3 those issues are resolved.

4 JUDGE JORDAN: Yeah, we’ve heard about the 

5 practicality problems on that. If -- speak to the 

6 issue of simply identifying the witness a couple of 

7 days in advance. No meet and confer, but your some 

8 relatively short period in advance of the deposition 

9 when you’ve had all the opportunity to do the things 

10 you need to do with your client, you pick the person, 

11 identifying the witness.

12 MR. ZIC: That has happened in my practice 

13 on rare occasion. It’s been asked on rare occasion 

14 and some jurisdictions where we are obligated to do it 

15 of course we’ve done it. That’s rare. I only know of 

16 one state where that’s the case.

17 PROF. MARCUS: Which jurisdictions are 

18 those?

19 MR. ZIC: Sorry?

20 PROF. MARCUS: In which jurisdictions are you 

21 obligated to do that?

22 MR. ZIC: I think that was in Pennsylvania 

23 state court, but I’m not sure. And --

24 JUDGE ROSENBERG: Sounds like you said --
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1 oh, I’m sorry.

2 MR. ZIC: I’m sorry?

3 JUDGE ROSENBERG: Well it sounds like you 

4 said just not on the identity issue but on the scope 

5 that you said it moved the needle a little so it 

6 sounds like the meet and confer in this recent example 

7 and then the one that you said was still in the 

8 process because it's been taken off the expedited that 

9 you are meeting and conferring about the scope of the 

10 deposition. And in this last instance you said when 

11 something didn’t go right there was a motion filed. 

12 Who filed the motion and what kind of motion was it?

13 MR. ZIC: It was a motion that we filed. It 

14 was a motion for protective order.

15 JUDGE ROSENBERG: But it arose out of the 

16 meet and confer?

17 MR. ZIC: No, I think meet and confer on 

18 scope, on matters and on breadth is something that we 

19 regularly engage in. It’s just that we very 

20 frequently run into loggerheads and, you know, every 

21 now and then we can, in terms of scope, reach an 

22 agreement I’m going to put a witness up on this, that 

23 and the other.

24 I do want to address, I’ve got half a minute 
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1 left --

2 JUDGE BATES: What’s the harm, going back to 

3 Judge Jordan’s question, what’s the harm from 

4 identifying the witness a few days in advance? What 

5 harm do you see from that?

6 MR. ZIC: I don’t think -- I’ve only been 

7 asked to do it a couple of times. The harm would be 

8 if in the experiences that I’ve heard of anecdotally 

9 would be if a witness has to be switched and then you 

10 are essentially being told by the other side that you 

11 have done a bait and switch or something like that. 

12 In the situations where we have done it, it hasn’t 

13 been an issue.

14 JUDGE BATES: All right. 

15 MR. ZIC: And I’m out of time. I was going 

16 to make another comment, but I’ll let it go.

17 JUDGE BATES: Tell me what the comment is in 

18 case there are any questions. Don’t tell me in too 

19 many words.

20 MR. ZIC: Sure. The issue of witnesses 

21 being unprepared, our witnesses, my witnesses have 

22 prepared themselves based on how they, and we, read 

23 the matters for examination. How I’ve seen it work 

24 out in practice in a deposition is it’s a very broad 
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1 scope of a matter and then there is a very specific 

2 question that we couldn’t have anticipated being asked 

3 based on the language in that and then they are saying 

4 to the witness well you didn’t do that, you didn’t do 

5 this, you didn’t do that, you didn’t look at this 

6 document, you didn’t talk to this person but those 

7 kind of specifics are not in the scope of the matter. 

8 Otherwise, in my experience, witnesses are certainly 

9 very diligent about how they go about reading through 

10 notices, working with counsel in trying to do their 

11 adequate investigation. Thank you.

12 JUDGE BATES: Thank you very much, Mr. Zic.

13 Our next witness is Jill Jacobson. 

14 MS. JACOBSON: Good morning and thank you 

15 all for having me. My name is Jill Jacobson. I’m the 

16 Vice President and General Counsel for Husqvarna. 

17 Husqvarna is a global manufacturer of outdoor power 

18 equipment, so we make chain saws and lawnmowers and

19 trimmers and other things that you might use in your 

20 yard in addition to various construction equipment. 

21 I’ve got a perspective that none of the other 

22 witnesses, at least this morning have, and that is the 

23 perspective of the corporation and I want to address 

24 two matters today. First is the meet and confer 
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1 requirement regarding the identity of the corporate 

2 representative and then the second is the lack of 

3 requirement of limitation, presumptive limitation, on 

4 the number of topics to be discussed.

5 So the first one on the matter of the 

6 identity of the witness, I see a meet and confer 

7 requirement superfluous, or not meet and confer, the 

8 requirement that you identify the witness is 

9 superfluous because the witness is already identified. 

10 The witness is the corporation. That’s the whole 

11 purpose of Rule 30(b)(6) is to depose the corporation 

12 as a witness. And so it doesn’t matter if it’s John 

13 Doe or Jane Smith or Charlie Brown who is testifying 

14 because it’s the corporation --

15 JUDGE JORDAN: Wouldn’t it matter --

16 MS. JACOBSON: Because it’s the corporation 

17 that’s testifying --

18 JUDGE JORDAN: Wouldn’t it matter, Ms. 

19 Jacobson, if Charlie Brown had testified a couple 

20 times before on the same matter?

21 MS. JACOBSON: No, because Charlie Brown is 

22 the corporation and the corporation has testified 

23 before, absolutely, and so Charlie Brown can be cross24 examined with John Doe’s testimony and with Jane 
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1 Smith’s testimony because they are all testifying on 

2 behalf -- for the corporation. They are the 

3 corporation.

4 JUDGE JORDAN: Should the plaintiff not have 

5 the opportunity to know if the representative put 

6 forth by Husqvarna has gone on record before so they 

7 can be prepared to test that witness’s knowledge?

8 MS. JACOBSON: The problem with the whole 

9 premise, Your Honor, is that it conflates Rule 

10 30(b)(1) with Rule 30(b)(6). 

11 JUDGE JORDAN: How so?

12 MS. JACOBSON: The plaintiff’s counsel, the 

13 opposing counsel, can prepare equally as well by 

14 reading the deposition testimony of the corporation 

15 previously as they could if they were reading the 

16 deposition testimony of Charlie Brown previously. It 

17 just doesn’t matter. It’s completely irrelevant. And 

18 by injecting an identity requirement, you then bring 

19 in the notion that it matters who the individual is, 

20 who is testifying. You bring that notion in and then 

21 that creates just the temptation if not the actual 

22 fact of --

23 JUDGE BATES: I understand that on sort of 

24 an abstract level.
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1 MS. JACOBSON: -- of individual --

2 JUDGE BATES: I understand that on an 

3 abstract level, but I don’t understand it on a 

4 practical taking the deposition level. If you know 

5 that this individual, Ms. Jones, has actually 

6 testified for the corporation three previous times on 

7 these subjects you would frame your questions 

8 differently than if you knew that Mr. Smith actually 

9 had testified two previously times for the 

10 corporation. Yes, you’re right, it’s all the 

11 corporation but taking the deposition would be much 

12 more efficient and different if it were the same 

13 witness who had been the corporation on prior 

14 occasions.

15 MS. JACOBSON: Why?

16 JUDGE BATES: Why shouldn’t plaintiff’s 

17 counsel or the noticing counsel know that?

18 MS. JACOBSON: But why? Why would it be 

19 different? If it's always the corporation. If the 

20 corporation is always the witness and whoever is 

21 testifying on behalf of the corporation going to be 

22 cross-examined with every single statement that’s ever 

23 been made by anybody previously, why does it make a 

24 difference?
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1 JUDGE JORDAN: Don’t you think it would 

2 matter to be able to say to the witness on this date 

3 this is the answer you gave to the question I’ve just 

4 asked, they appear to be in consistent, as opposed to 

5 saying on this date somebody else said this which 

6 would allow a witness to say well I don’t know what 

7 they were thinking. There is a material difference 

8 between having a witness confronted with their own 

9 words than having a witness confronted with somebody 

10 else’s words, is there not?

11 MS. JACOBSON: Not when that witness is the 

12 corporation, no. When it’s the corporation, it’s the 

13 corporation and I, as an attorney or my outside 

14 counsel, will have to prepare, whoever is getting 

15 ready to testify, will have to prepare that witness 

16 with all the other depositions that have been given by 

17 the corporation.

18 JUDGE BATES: Give us the other side of it 

19 -- excuse me. Just give us the other side of it. 

20 You’re telling us there’s no advantage. What’s the 

21 disadvantage to identifying the witness a few days in 

22 advance of the deposition. What’s the harm from it?

23 MS. JACOBSON: The harm in that is exactly 

24 what we’re seeing played out here today is that it 
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1 injects the notion of an individual person, the notion 

2 that it is important who the individual is --

3 JUDGE BATES: But so many --

4 MS. JACOBSON: -- in terms of the 

5 corporation.

6 JUDGE BATES: So many counsel stand up in 

7 front of us and say that’s what we do, that’s our 

8 practice. It’s good practice to tell the other side 

9 who the witness is going to be. So, what is it 

10 injecting?

11 MS. JACOBSON: Sure, but it injects a 

12 formal, it injects the authority of the rule into the 

13 notion that this is a corporation who is testifying, 

14 not an individual person. So, it by adding the notion 

15 of an individual into the fact that it is actually the 

16 corporation who is testifying you’re putting an 

17 official stamp of approval on this idea that it’s the 

18 individual person --

19 JUDGE JORDAN: The mere --

20 MS. JACOBSON: -- what the individual has 

21 said isn’t that important.

22 JUDGE JORDAN: There mere identification of 

23 the name, you believe, makes it, turns it somehow into 

24 an individual deposition?
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1 MS. JACOBSON: Not the fact of identifying. 

2 The fact that the requirement to identify an 

3 individual is in the rule turns it, conflates it, with 

4 30(b)(1). Again, it gives it sort of an official 

5 stamp of approval that’s not there now.

6 JUDGE BATES: Professor Marcus did you have 

7 a question?

8 PROF. MARCUS: Well, I think -- brief follow 

9 up. Some people tell us that on occasion companies 

10 designate more than one individual with -- different 

11 individuals addressing different topics. Am I right 

12 to understand that you still think there is no value 

13 to, no legitimate value for the other side to know 

14 which topics witness number one is going to be 

15 addressing?

16 MS. JACOBSON: I’m not -- yes. There’s no 

17 value. And again, I’m not -- it’s because the witness 

18 is the corporation. And to, again, to inject a 

19 requirement that deals with an individual into the 

20 rule opens the -- it sort of, you know, allows or just 

21 creates the impression that the individual matters.

22 JUDGE ROSENBERG: What if there was language 

23 in the committee note that made that point? That the 

24 rule acknowledges that the witness is the corporation 
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1 but the meet and conferral regarding the identity is 

2 really in furtherance of avoiding problems at the 

3 deposition, allowing parties to fully prepare, making 

4 things go smoothly. I mean, in a nutshell, that 

5 really is what meet and confer is about.

6 MS. JACOBSON: Because you don’t need the 

7 identity, the identification of a witness in order to 

8 properly prepare, in order to be efficient, in order 

9 for things to go smoothly you don’t need the 

10 identification of an individual.

11 JUDGE ROSENBERG: But --

12 MS. JACOBSON: The witness has already been 

13 identified, it’s the corporation.

14 JUDGE BATES: Anything else from Ms. 

15 Jacobson? Thank you very much, Ms. Jacobson. We 

16 appreciate it.

17 MS. JACOBSON: Thank you all.

18 JUDGE BATES: Before we take a break, one 

19 last witness and that will be Sterling Kidd.

20 MR. KIDD: Good morning. My name is 

21 Sterling Kidd. I’m a shareholder with Baker Donelson 

22 in Jackson, Mississippi. Baker Donelson’s got about 

23 750 attorneys who I uphold before coming here. I’ve 

24 also spoken with many of my in-house clients about 
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1 this proposed rule change and I come to speak in 

2 opposition to the meet and conferral requirement, as 

3 to the identity of the witness and also to speak in 

4 opposition to the proposed compromise of simply 

5 identifying the witness a certain number of days in 

6 advance.

7 Before I get too far into this, though, I 

8 want to stress that -- in my practice I represent 

9 plaintiffs and defendants and so I notice 30(b)(6) 

10 depositions and I also defend 30(b)(6) depositions so 

11 I’ve seen this from both sides of the coin.

12 In terms of conferring about the identity of 

13 the witness I want to start with Rule 1, which says 

14 that the rules are designed to be just. And with due 

15 respect to this August committee you guys work very 

16 hard and I recognize that, but I would submit that 

17 requiring a corporation to confer with the other side 

18 about who is going to speak for them is not just. In 

19 fact, it's fundamentally at odds with our American 

20 justice system which says I get to choose who speaks 

21 for me, I get to choose my lawyer, I get to choose who 

22 speaks for me in court and this rule is in conflict 

23 with that.

24 And I want to jump -- I’m glad one of the 
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1 panelists, or one of the Committee members, I’m sorry, 

2 asked about can the comment, and the idea that the 

3 comment cures this. I would submit that in practice, 

4 practitioners ignore the comments and whether that’s 

5 right or wrong, and frankly maybe I was a bad law 

6 clerk and maybe my judge should have fired me, but as

7 a law clerk if an advocate the best argument they 

8 could give was from a comment rather than from a case 

9 I would disregard it. I mean, when an associate gave 

10 me a cite to a comment I’d say go find a case that 

11 says this. The comment is not primary authority, 

12 similar to what Mr. Behrens said --

13 JUDGE BATES: You’re destroying all of our 

14 egos.

15 (Laughter.)

16 MR. KIDD: Yes, and I apologize but I mean 

17 similar to what Mr. Behrens said when we started off 

18 this morning, there is an inherent conflict there and 

19 I don’t think putting in the comment cures it. I 

20 think it just needs to just be taken out.

21 And now, but I want to get to what the 

22 committee’s questions this morning seemed to be 

23 focused on, which is rather than conferring about who 

24 could speak for the corporation telling the person on 
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1 the other side who is going to speak for the 

2 corporation in advance. That has a number of 

3 problems. And I think the first problem is it still 

4 implies that the other side gets a say. Why else 

5 would you tell them unless they get a say? And then, 

6 two, more -- go ahead I’m sorry, Judge.

7 JUDGE JORDAN: Well, I’m just having a hard 

8 time with the logic of that. It doesn’t imply they 

9 have a say at all, it just tells them who you are 

10 going to be bringing forth. If there’s no meet and 

11 confer requirement, it’s just the disclosure 

12 requirement so that what is the problem with the 

13 disclosure as you’ve heard Judge Bates ask?

14 JUDGE BATES: It seems to me it’s the 

15 opposite --

16 JUDGE JORDAN: What’s the harm?

17 JUDGE BATES: It’s the opposite of having a 

18 say because it’s already decided who the witness will 

19 be.

20 MR. KIDD: Well, so to respond to the 

21 specific questions first then I’ll follow up Judge 

22 Jordan because I’ve got some other points I want to 

23 make other than this one, but to the point that I just 

24 made, Judge, the -- I think it implies they have a say 
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1 because if they don’t like it they can say I don’t 

2 like that witness and go run to the judge and say 

3 judge, they’re putting the wrong person up, please 

4 help me, please give me some relief prior to the 

5 deposition. That’s why I think it implies they still 

6 have a say.

7 But in terms of other concerns, Judge, first 

8 of all I represent -- I’m a practitioner in 

9 Mississippi which means I get to occasionally 

10 represent companies that are either small and/or are 

11 large but infrequent litigators which means they don’t 

12 have a 30(b)(6) sort of army ready to testify, they 

13 don’t have people that normally testify and so it’s a 

14 very difficult decision as to who will be designated.

15 And sometimes that’s not -- it takes a long 

16 time in the process. I have had situations,

17 particularly with small companies, who don’t have time 

18 and resources to dedicate to these depositions like 

19 larger companies might. When we’re sitting in a 

20 conference room beginning at 8:00 until -- 8 a.m. or 

21 earlier and all day and we’re hashing out is Jim or 

22 Bob going to be the designee on this topic and we 

23 don’t know until 5:00. And that’s just the reality 

24 that some companies cannot stop everything they’re 
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1 doing because of a litigated matter.

2 Along the same lines, even if you are a 

3 small company even if we get something worked out in 

4 advance --

5 JUDGE JORDAN: Can I --

6 MR. KIDD: Go ahead, Judge.

7 JUDGE JORDAN: -- just ask you a practical 

8 question. Is that the exception or the rule? In 

9 other words, imagine a rule that said witness 

10 identification two days in advance. Do you think it 

11 would be common to be in a circumstance where two days 

12 before we just don’t know or would it be the 

13 exception?

14 MR. KIDD: Well, to be fair, Your Honor, I 

15 think it would be the exception, but I think the rules 

16 have to apply, be written, to work for all cases to 

17 the extent possible. And in addition to that, you 

18 know, in Mississippi, for instance, and I think there 

19 are other local rules that are similar to this in the 

20 Southern District of Mississippi it’s not enough to, 

21 you know, if you had to change the designee for some 

22 reason, it’s not enough to just tell them and move on. 

23 I mean, you have to -- if there is any kind of sort of 

24 problem with the deposition from the responding party 
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1 you have to have a court order in your hand protecting 

2 you or you are subject to sanctions.

3 That’s what the local rules in the Southern 

4 District of Mississippi and Northern District of 

5 Mississippi say. And then I know I’m out of time so 

6 just briefly I will say the biggest concern that came 

7 up with my colleagues is the research, the issue of 

8 research and turning it into an individual deposition 

9 and on that point I would really just adopt the 

10 comments made by Husqvarna which I think explain the 

11 issue very well.

12 JUDGE BATES: Thank you very much, Mr. Kidd. 

13 At this point we’re going to take a brief break. It 

14 will be brief. 10 minutes. It’s 10:30 by my watch, 

15 so we will resume at 10:40.

16 (A break was had, after which the 

17 proceedings resumed.)

18 JUDGE BATES: We will begin again. I have 

19 an announcement, if you will, caution. We do have 

20 people who are participating on the telephone, members 

21 of the Committee and they are having a hard time 

22 hearing everything, so two things: Number one, the 

23 witnesses please do not turn the microphone off, leave 

24 the microphone alone. A green light on the microphone 
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1 stand means it's on, please don’t touch it. And for 

2 those asking questions please move the microphones 

3 close to you asking the question making sure the 

4 microphone is on and that will help our telephonic 

5 participants hear everything.

6 With that, we’re ready to continue and our 

7 next will be Andrew Cooke.

8 MR. COOKE: Good morning.

9 JUDGE BATES: Good morning.

10 MR. COOKE: My name is Andy Cooke. I’m a 

11 partner at Flaherty Sensabaugh Bonasso in a firm of 60 

12 trial attorneys practicing in the state and federal 

13 courts in West Virginia. We represent individuals, 

14 small businesses, large corporations typically 

15 defending suit, but sometimes as plaintiffs. I 

16 estimate I have prepared for and taken or defended 

17 approximately 75 30(b)(6) depositions over about a 25-

18 year career. I appreciate the opportunity to share my 

19 perspective here today and I thank the advisory 

20 committee for requesting input from practitioners and 

21 the public at large.

22 The proposed amendment is a missed 

23 opportunity, in my opinion, to improve a useful rule. 

24 The rule, unfortunately, lacks structure and I’d like 
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1 to give you a real world and practical example in a 

2 minor case to illustrate what is involved in 

3 responding to a typical 30(b)(6) notice. Coincidently 

4 when the committee announced it was evaluating Rule 

5 30(b)(6) I was in the midst of responding to two 

6 30(b)(6) notices, each containing greater than 60 

7 topic areas with corresponding document production 

8 requests. Receiving a notice of 50-plus topics is 

9 typical in my practice. In fact, it is rare that I 

10 receive a brief focused 30(b)(6) notice of say 10, 15 

11 topics.

12 PROF. MARCUS: Can I ask you just a 

13 clarification question because notice time has come 

14 up. Am I right to guess that if a Rule 34 request 

15 accompanies the 30(b)(6) notice then the 30-day time 

16 frame from Rule 34 would apply at least to that part?

17 MR. COOKE: That has been my practice and 

18 that is my interpretation. And that has been how that 

19 worked in this particular case. So the case -- my 

20 clients were a large retailer and a small manufacturer 

21 was indebted to that retailer. Again, I say it’s a 

22 minor case because there was some question about 

23 whether the damages in the case actually met a 

24 controversy.
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1 So here’s what happened after the notice was 

2 received. I arranged and participated in multiple 

3 lengthy telephone conversations with each client about 

4 responding to the topics. There were numerous follow5 up calls about who the possible witnesses should be 

6 and what documents and what research was necessary. 

7 For each company it was really impossible to identify 

8 one person who could respond to all of the notices. 

9 At least within their job description, so they would 

10 have had to have research to prepare appropriately and 

11 talk to other people. This was a contaminated, 

12 alleged contaminated, product issue, but there were 

13 distribution and supply chain issues and those sorts 

14 of things for two different types of companies, so it 

15 was hard to have one person. 

16 During about what turned out to be about a 

17 60-day process, I made two trips outside of West 

18 Virginia, traveled to two different cities to 

19 determine whether I had the write witnesses and 

20 whether we could educate the witnesses we wanted to 

21 identify to be able to address the topics. I also met 

22 and conferred informally with Plaintiff’s counsel and 

23 in that setting we were able to make progress on 

24 logistic issues, on timing, where the deposition would 
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1 occur. They were actually noticed for West Virginia 

2 not for where my clients were located.

3 And so we were unable to -- we met and 

4 conferred about the number of topics and scope but we 

5 were unable to reach agreement, so I was faced with 

6 what do I do, do I move for a protective order? Do we 

7 try to just serve objections? The district courts in 

8 West Virginia give different guidance on whether it 

9 would be premature to file a protective order before 

10 the deposition and then there are sanctions orders 

11 where a responding party attempting to rely only on 

12 objections. We elected because 75 percent of the 

13 notice were relevant topics, we elected to serve 

14 objections which I prepared and the deposition went 

15 forward. Both depositions lasted less than three 

16 hours and the topics that were covered were really 

17 about between 10 and 20 topics, so my clients had 

18 spent all of this money and all of the time, thousands 

19 of dollars and days of time preparing, overpreparing, 

20 when this notice could have just been focused. And so 

21 my concern about the proposed amendment is it doesn’t 

22 even -- the lack of structure prevents any real, 

23 meaningful solution to --

24 JUDGE BATES: What are you suggesting should 
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1 be in the rule to address the problem that you’ve just 

2 described in that particular case?

3 MR. COOKE: In my comments --

4 JUDGE BATES: Because it seems like the meet 

5 and confer does part way address that.

6 MR. COOKE: Meet and confer is appropriate 

7 but from a practical standpoint it rarely is 

8 successful on scope and number of topics. That has 

9 been my experience.

10 JUDGE BATES: So what are you suggesting?

11 MR. COOKE: Presumptive limits, number one. 

12 And an objection procedure.

13 JUDGE BATES: We’ve heard from people at a 

14 range of cases, we have mass tort cases, big 

15 pharmaceutical cases, all the way down to smaller 

16 cases that you’ve just described, or even smaller than 

17 that. How -- what’s a presumptive limit for all those 

18 cases? 10? 

19 MR. COOKE: In my comment I suggest 10. And 

20 I think that would be appropriate. And the reason why 

21 I say that --

22 JUDGE BATES: But it’s not going to fit for 

23 a large category of the cases.

24 MR. COOKE: Well, I would -- in my comment I 
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1 say presumptive limits without leave of court. And so 

2 certainly in a large case through the Rule 16 process 

3 that’s a topic that could be addressed and could be 

4 either agreed upon or the court could be requested --

5 that’s easy. That’s how the presumptive limits work 

6 with Rule -- you know, with interrogatories, and it 

7 works well. And me, when I propound interrogatories 

8 now since that amendment, I don’t waste 

9 interrogatories. I’m careful about how many I make 

10 and how carefully I draft them.

11 JUDGE BATES: But the problem with that is 

12 that usually gets taken care of in a conference with 

13 the court that is a scheduled conference with the 

14 court right at the outset of the case in terms of the 

15 number of interrogatories. The judge can raise it. 

16 The parties can raise it. It gets resolved. But 

17 30(b)(6), there isn’t a conference attached to the 

18 30(b)(6).

19 MR. COOKE: There can be. I mean, there’s 

20 no reason why that can’t be an appropriate topic for a 

21 Rule 16 conference.

22 JUDGE BATES: We hear that it would be too 

23 early.

24 MR. COOKE: I --
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1 JUDGE BATES: You can’t really address 

2 30(b)(6) at the early scheduling conferences.

3 MR. COOKE: I don’t believe that’s true, in 

4 my experience.

5 JUDGE JORDAN: How is that -- explain to us 

6 how that would work because we have been hearing, as 

7 Judge Bates just noted, that it’s often the case, not 

8 always, but often the case that these are depositions 

9 that come late in the case after other things have 

10 been developed and there isn’t some already 

11 preexisting conference with the court. How would 

12 requiring this up front at the Rule 16 conference work 

13 in practicality.

14 MR. COOKE: I think it would be a list of 

15 one of the topics. I haven’t suggested it be 

16 required, it could be on the list of one of the topics 

17 that could be used. But I think in product 

18 litigation, particularly in my case, the plaintiff 

19 knew when they drafted the complaint what they needed 

20 to prove and so they knew what questions they would 

21 want to ask to get the corporation’s evidence on those 

22 issues. And so that could be an iterative process as 

23 well, but it’s a bigger problem when you receive a 

24 30(b)(6) at the end of discovery and that creates much 
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1 more problem than having one that is easily served 

2 within the early part of litigation.

3 MR. SELLERS: Mr. Cooke?

4 MR. COOKE: Yes, sir.

5 MR. SELLERS: A question about the 

6 presumptive number of topics that you are 

7 recommending. Wouldn’t that create an incentive for 

8 the designating party to have broad topics rather than 

9 the defined narrow topics that will give you more 

10 guidance?

11 MR. COOKE: I don’t believe that has been 

12 the experience with the presumptive when its 

13 interrogatories. I believe that practitioners respond 

14 to the guidance from the committee, from the rule, and 

15 they are more careful when drafting and I believe they 

16 don’t waste interrogatories. And I tell my young 

17 associates don’t waste an interrogatory. So we may 

18 not serve the full allotment in the first set.

19 JUDGE BATES: All right. Any other question 

20 for Mr. Cooke?

21 (No response.)

22 MR. COOKE: Thank you.

23 JUDGE BATES: Thank you very much, Mr. 

24 Cooke.
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1 Our next witness is Jessica Kennedy.

2 MS. KENNEDY: Good morning.

3 JUDGE BATES: Good morning.

4 MS. KENNEDY: My name is Jessica Kennedy and 

5 I’m a partner in McDonald Toole Wiggins in Orlando, 

6 Florida. I first want to thank the Committee for 

7 allowing us to be here and for all of their hard work.

8 I get the honor of representing companies 

9 both in Florida and nationwide in a number of 

10 different contexts, including pattern litigation. And 

11 there is two areas that I would like to cover today. 

12 The first of those is my concerns with the proposed 

13 rule to meet and confer as to the identity of the 

14 witness and also the benefit and need of a presumptive 

15 limit on the number of deposition topics. 

16 We’ve heard a number of concerns that may 

17 come up with meeting and conferring as to the identity 

18 of the witness but the one thing that I don’t think 

19 has been fully vetted is what that meet and confer 

20 process would look like.

21 If I identified Jane Smith as my witness, 

22 what logical conferring would come next? Why Jane? 

23 Why not Tom who has been deposed in another case. 

24 What experience has Jane had? How many depositions 
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1 has she already provided? Who were the other 

2 potential witnesses? What logical flowing questions 

3 would come from a meet and confer process that would 

4 not invade on my attorney work product, my 

5 confidential client communications and would be 

6 tangential to the topics at issue and would relate to 

7 the witness personally. 

8 My second point that I would like to discuss 

9 this morning is the need for a presumptive limit and 

10 I’m glad there was a number of questions on this. At 

11 its core, when coupled with the already present rule 

12 of serving a notice with reasonable particularity it 

13 would, I believe, seek to accomplish the goal that 

14 this committee is trying to do, and that’s to 

15 streamline the 30(b)(6) process to make sure the 

16 witness is adequately prepared and to avoid motion 

17 practice.

18 JUDGE JORDAN: Could you --

19 MS. KENNEDY: It’s all --

20 JUDGE JORDAN: Could you please respond to 

21 the question that was asked of the previous witness 

22 which is why doesn’t that just give an incentive 

23 rather than giving targeted and specific topic 

24 designations to give very broad ones?
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1 MS. KENNEDY: Thank you. I don’t think that 

2 that’s been the case as it was previously mentioned 

3 both in interrogatories and in fact does the opposite. 

4 If you issue a time limit on something it teaches you 

5 to narrow and be focused on the discovery in which you 

6 need.

7 JUDGE JORDAN: Isn’t an interrogatory, 

8 though, fundamentally different because you’re going 

9 to get the written answer you are going to get and if 

10 you want something more you’re going to have to confer 

11 and fight about it. Whereas, with the topic 

12 designated in a 30(b)(6) deposition notice that’s just 

13 the platform from which the questions launch.

14 MS. KENNEDY: Understood. So, in my 

15 practice I have found that I’m better able and 

16 equipped to prepare my witnesses when I have fewer 

17 topics and I think that also relates to the breadth of 

18 them. So if I -- and I do often meet and confer as to 

19 the notion of the notice from the beginning, so if I 

20 get a notice that has 10 very broad topics I want to 

21 meet and confer with opposing counsel and ask them 

22 what it is that they are truly looking for. If I get 

23 a notice with 263 topics, and I brought some copies 

24 for the committee today, of some of the examples of 
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1 these notices. It’s such a burdensome process to go 

2 through each of those and to really ask, you know, 

3 what is it that you’re really after? You’ve served me 

4 263 topics, what do you actually need for this case?

5 JUDGE BATES: What do you think the 

6 presumptive limit should be?

7 MS. KENNEDY: I believe that it should be 10 

8 with a showing of good faith, or a showing of good 

9 cause they could ask for more.

10 JUDGE BATES: It just seems to me from my 

11 experience that a presumptive limit of 10 would lead 

12 to an attempt to change that limit in virtually every 

13 case and what’s been described with 30(b)(6) 

14 depositions occurring anywhere during the process of 

15 the pretrial proceedings is the necessity to go to a 

16 judge to change that presumptive limit in virtually 

17 every case.

18 MS. KENNEDY: Your Honor, we don’t see that 

19 practice occurring in interrogatories and I don’t 

20 think that it’s my practice --

21 JUDGE BATES: I understand it’s not true in 

22 interrogatories, but it seems to me that from what 

23 you’re describing with respect to the notices and the 

24 kinds of cases that we know we deal with it is 
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1 inevitably going to be true that in most cases there’s 

2 going to be an attempt to get more than 10 topics. 

3 MS. KENNEDY: We try in my practice to try 

4 to reach an agreement as to the number of topics at 

5 the Rule 16 conference and I think that by the time 

6 you get there both parties, the plaintiff or opposing 

7 counsel, whoever has filed the action should know the 

8 basis of their cause of action. They should know what 

9 they need to prove. And if they don’t know what they 

10 need to prove then we should question why they filed.

11 JUDGE BATES: Are you successful in doing 

12 that at the Rule 16 conference?

13 MS. KENNEDY: Sometimes, Your Honor. 

14 Sometimes we are able to reach an agreement. Candidly 

15 it’s not often 10, but it is something that is more 

16 manageable that we feel like we can reach an agreement 

17 on.

18 JUDGE BATES: You still would have the 

19 opportunity to do that, even without a presumptive 

20 limit.

21 MS. KENNEDY: Yes, Your Honor, but I would 

22 say that it at least encourages the parties to have 

23 this conversation early.

24 You know I noticed upon reading the 
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1 transcript from Phoenix that there was some 

2 conversations about the lack of really verbose notices 

3 -- I’m noticing I’m just now out of time -- very 

4 verbose and voluminous notices and so I thought that I 

5 would bring a couple copies today and I’ll leave these 

6 for the panel should they be interested, but I just

7 want to highlight the number of topics on the first 

8 five, and there is about two or three dozen in here, 

9 205 topics, 152 topics, 117 topics with subparts, 68 

10 topics and my favorite was a witness to be designated 

11 to talk about 263 allegations contained within the 

12 complaint in addition to any actions that current, 

13 former, employees of a subsidiary or agents may have 

14 done in any way related to those 263 allegations.

15 JUDGE BATES: Is there any reason you 

16 couldn’t deal with that through a protective order?

17 MS. KENNEDY: Yes, Your Honor, you could. 

18 But why -- if the point of why we are here today is to 

19 reduce motion practice wouldn’t that seek to reduce 

20 motion practice?

21 JUDGE JORDAN: I wonder if it just doesn’t 

22 increase practice by doing exactly what Judge Bates 

23 said which is instead of having protective orders come 

24 up occasionally, having frequent requests for 
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1 conferences with the court to address the need for 

2 more topics.

3 MS. KENNEDY: I think many of those 

4 conversations should they arise would come after a 

5 30(b)(6) deposition. They serve their 10 topics, they 

6 take their deposition and they say listen there is 

7 more information that I think they need -- that I 

8 think I need, but I don’t think we should be having 

9 any conversations about increasing the number of 

10 topics from a presumptive limit until that presumptive 

11 limit deposition has occurred. By that time, both 

12 parties should really have a good understanding of 

13 what this case is about.

14 PROF. MARCUS: So you’re asking us to adopt 

15 a rule that says there can be no expansion of the 

16 number of topics until after there has been sort of a 

17 first try 30(b)(6) deposition?

18 MS. KENNEDY: I would say that would be in 

19 the best practice, yes. I mean --

20 JUDGE BATES: It wouldn’t be the most 

21 efficient because you would have two depositions of 

22 the same witness, potentially.

23 MS. KENNEDY: It depends on who the company 

24 decides and what the topics are. So if you have the 
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1 first set of deposition topics on a particular product 

2 and how the product was designed, engineered or 

3 manufactured and then at some point you realize, you 

4 know what, I need to narrow in on this particular 

5 issue or this new issue has seemed to come to light. 

6 Again, I do go back to I think before we file lawsuits 

7 we should have a good understanding about what the 

8 lawsuit is about.

9 PROF. MARCUS: You’ll get agreement from 

10 everyone on that.

11 JUDGE BATES: Mr. Sellers, did you have a 

12 question?

13 MR. SELLERS: No. It’s been asked.

14 JUDGE BATES: Ms. Kennedy -- well, okay. Go 

15 ahead.

16 MS. WITT: Just very quickly, in general at 

17 what stage of the cases were the notices that you’ve 

18 brought? Were they in the middle or were they all 

19 near the end of discovery?

20 MS. KENNEDY: So some of them that I was 

21 personally familiar with and personally worked on they 

22 were toward the end of discovery. Some of these I 

23 have located by doing a search on Lexis for 30(b)(6) 

24 and voluminous notice and I encourage everyone to do 
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1 that search because one thing that is notable is that 

2 you’ll see a spike in the case law in the last ten 

3 years. And I think that shows that there is something 

4 that we should consider revisiting on the number of 

5 voluminous -- or the issue of voluminous notice. 

6 JUDGE BATES: Do you know -- last question. 

7 Do you know how many of those notices of over 200 

8 topics were in either class actions of MDL 

9 proceedings?

10 MS. KENNEDY: Many of them, I mean you can 

11 see on the face of the style -- and I’ve done some 

12 research upon finding them which takes some effort, 

13 you have to find the motion for protective order and 

14 then try to find the notice on PACER, but most of them 

15 are coming from regular just products cases, there are 

16 very few, I don’t actually recall any that came out of 

17 an MDL.

18 JUDGE BATES: All right. Thank you, Ms. 

19 Kennedy.

20 MS. KENNEDY: Thank you.

21 JUDGE BATES: Next witness is Keith Altman.

22 MR. ALTMAN: Hi, my name is Keith Altman. 

23 I’d like to thank the committee for having me here 

24 today. I am from Southfield, Michigan. I’m with the 
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1 firm Excolo Law and 1-800-LAW-FIRM. I’m also 

2 president for the Don Quixote Club Litigation Society

3 because most of the litigations I engage in are these 

4 difficult complex cases. For example you may have 

5 heard of the case against Google, Facebook and Twitter 

6 for providing material support to ISIS, any of the 

7 various terrorist attacks, those are my cases. I do 

8 complex 1983 Actions. Most of these -- and I also do 

9 pharmaceutical cases where technical information is 

10 very critical. 

11 JUDGE BATES: Well, I hope you don’t view 

12 this Committee to be the windmill that you're tilting.

13 MR. ALTMAN: Nope, just tough cases.

14 In any event, I think the meet and confer 

15 requirement is extremely important, just as a general 

16 proposition. I would like to tell you a little story 

17 about why. I was an astrophysics major in school. I 

18 really took up space as opposed to others. My solid19 state physics professor got married during the 

20 semester and he told us about this incredible problem 

21 he was having which was that he wanted to have a 

22 really big wedding and his fiancé wanted to have a 

23 really small wedding, which is the opposite of what 

24 you would expect. The problem is that the biggest 
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1 wedding he could think of was 50 people and the 

2 smallest wedding she could think of was 150 people. 

3 So what you have here is that people’s perceptions and 

4 where they are coming from they are often missing each 

5 other. And when a party says I know what they want, a 

6 lot of times they don’t really know what they want 

7 they are thinking, they are assuming that they 

8 understand what they want. And that’s why I think the 

9 meet and confer processes are very hard.

10 Because let’s come back to what is a 

11 30(b)(6) deposition really for, which nobody has 

12 discussed here. It's really very much a tool to help 

13 narrow the issues and to focus other discovery 

14 requests because as a requesting party, we’re shooting 

15 in the dark. I mean, I know the basics for my case, 

16 I’ve done pharmaceutical cases, I know kind of how a 

17 pharmaceutical company works, but I don’t know how 

18 this company works. So 30(b)(6) is the device for me 

19 to try to narrow the issues so I can find the right 

20 people so I can understand how they keep their 

21 databases, et cetera. 

22 And so it is a very important device for 

23 that purpose and so when I’m sitting there drafting 

24 demands, I’m doing the best that I can and we can all 
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1 thank -- the last speaker said there’s been an 

2 increase over the last ten years of all of this. 

3 Well, I think we can thank Turkhall (phonetic) for 

4 that. You know we know have a requirement that we now 

5 have to draft these incredibly long complex 

6 complaints. My terrorism complaints typically are 120 

7 to 150 pages. Why? Because we have to cover all of 

8 these issues. Well, that spills into the 30(b)(6) 

9 process where now I need to have 30(b)(6) requests 

10 that go along so I can support the complaint and all 

11 the allegations in the complaint. And so I think 

12 that’s part of the reason for the increase.

13 As far as numbers go, this goes along with 

14 the mismatch here. I think numbers are not a good 

15 idea because I don’t think you can really specify a 

16 presumptive limit. I think trying to do so is going 

17 to come up with the exceptions every single time. 

18 It’s going to mean as one of the panelists said I’m 

19 going to ask for a broader category so I can meet my 

20 numbers instead of being focused and --

21 JUDGE JORDAN: Why would it -- why would it 

22 be the case that, assume it wasn’t 10 it was some 

23 larger threshold. Why isn’t anchoring the number of 

24 topics at a number 25, 30, 40, whatever a sensible 
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1 thing so that negotiations can begin around that and 

2 people can have an idea of what might require resort 

3 to the court if they can’t agree?

4 MR. ALTMAN: Because I think you have that 

5 process in here now. Let’s say you pick any arbitrary 

6 -- pick any number that you want, you’re trying to 

7 pick a rule for the masses, you know for everybody. I 

8 think you’re going to set up situations where it’s 

9 almost invariable that you are going to need more of a 

10 number. There’s a big difference between taking 

11 interrogatories and the 30(b)(6) deposition. That’s 

12 interactive. I’m there, I’m talking to a person. And 

13 one of the things I want to add is --

14 JUDGE JORDAN: Well, stick with me. If the 

15 complaint that we hear and hear repeatedly from people 

16 who have a defense side perspective on this is the 

17 system is being abused because there is no limit and 

18 the only recourse is go to the court for a protective 

19 order which burns credibility with the court and is a 

20 high-risk enterprise. What’s wrong with taking that 

21 seriously and saying well maybe some presumptive limit 

22 will ameliorate that problem and not create a 

23 significant problem on the plaintiff’s side. Help us 

24 think through that.
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1 MR. ALTMAN: For the same reason that 50 

2 versus 150. I could take 25 topics and make a 

3 nightmare for the other side. I might take 25 topics 

4 and I only need five, I might make a nightmare for the 

5 other side. The point is, the meet and confer can 

6 take care of that. It’s the way it's always worked. 

7 We can sit down and talk to each other and be 

8 reasonable and say well this person doesn’t exist --

9 like for example, maybe the way that a topic is 

10 written I ask for everything from let’s say 2000 to 

11 2017. There’s an employee who left in 2002. And so 

12 now instead of being able to talk to one person I 

13 really need to talk to two people, but by talking to 

14 me and saying hey, you know, do you really need those 

15 previous two years? I can take an assessment and say 

16 maybe I don’t really need those two years because now 

17 it lowers the burden.

18 JUDGE JORDAN: You’re speaking about counsel 

19 speaking to each other sensibly and in good faith and 

20 coming to an agreement. Part of the challenge here 

21 that we are dealing with, the argument being made that 

22 without some limits in the rule itself as presumption, 

23 we don’t have -- we have serious issues with people 

24 not being able to agree sensibly the way you’re just 
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1 describing. 

2 MR. ALTMAN: I don’t think the number is 

3 going to make the difference. I think it’s going to 

4 be up to the parties and the willingness on the 

5 parties to take meet and confer and cooperation 

6 seriously. Putting a number isn’t going to change 

7 that.

8 PROF. MARCUS: So if it said 10, that really 

9 wouldn’t make a difference?

10 MR. ALTMAN: If it says 10 it now puts a 

11 burden on me that every time I think I need 10 when do 

12 I deal with it? I just think 10 is not the right 

13 number. I think the --

14 JUDGE BATES: What is the right number?

15 MR. ALTMAN: The right number is what is 

16 appropriate for that particular case. That’s the 

17 right number. I can’t tell you what it is because 

18 very case is so different. If you’re dealing with a 

19 complex pharmaceutical case and a mass tort the number 

20 of topics that may be appropriate maybe 100 and if 

21 you’re dealing with a 1983, you know, Action in a 

22 prison where you are suing the prison it might be 

23 five.

24 What I’m saying is there is a presumption 
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1 amongst all of us we’re supposed to act reasonably. I 

2 don’t think you can codify or rule to require people 

3 to act reasonably. If they are not going to be 

4 reasonable whatever rule you’re going to put down, for 

5 example, if you put down 10 and I’m not going to be 

6 reasonable 100 percent of the time I’m going to 

7 petition the court for more. I’m just going to do it 

8 because I’m not being reasonable because I want more 

9 than 10 even if I only need six. On the other side, 

10 if 20 is really appropriate in this case and the other 

11 side doesn’t want to be reasonable they are going to

12 object and say no, they only get 10.

13 So what I’m saying is I don’t know how this 

14 panel can force people to sit and talk. You know, you 

15 can say that you must sit and talk, but if you don’t 

16 do it in good faith, if you don’t do it reasonably it 

17 doesn’t matter what the rule is. I think we have to 

18 start getting people to have meaningful, to put teeth 

19 into the Rule 16 conferences, the Rule 26 conferences 

20 to say that you go into these things with good faith. 

21 You bring the right people to the table.

22 Somebody talked about, you know, you want to 

23 find out about the databases. Really, if you’re going 

24 to ask a topic about databases you really need to 
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1 bring somebody in that has some technical knowledge 

2 about databases. It’s not reasonable. Because one of 

3 the things that a corporation is not an ephemeral 

4 entity. A corporation is made up of people. And when 

5 the company picks a person to testify on its behalf, 

6 typically they are doing it because this person has 

7 been involved in the company. It would be incredibly 

8 unusual to take a blank slate, somebody who knows 

9 nothing about the business, the company, get them 

10 educated on the topics and bring them in. So the 

11 reality is is anybody that’s testimony almost always 

12 has, for lack of a better term, baggage. They have 

13 knowledge. They know about this corporation and it’s 

14 personal. The corporation didn’t give it to them.

15 So this whole naïve thing about 

16 identification it’s critically important to identify 

17 the cause of this very reason. If this person has 

18 been deposed multiple times before for this particular 

19 topic because the corporation has found them to be the 

20 person, it’s important that you know that. It’s 

21 important that you get to ask the appropriate 

22 questions and if they are not going to bring the 

23 person, they get the choice --

24 JUDGE BATES: All right. Mr. Altman, we’re 
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1 going to have to cut you off.

2 MR. ALTMAN: Okay.

3 JUDGE BATES: Thank you very much for 

4 coming. I appreciate it.

5 MR. ALTMAN: Thank you for your time.

6 JUDGE BATES: Our next witness, Alex Dahl.

7 MR. DAHL: I thank the Committee for taking 

8 into account the views of the Lawyers for Civil 

9 Justice throughout this process and during my 

10 testimony today.

11 The Committee has made two key observations 

12 and asked one very important question. Observation 

13 one, 30(b)(6) is the source of recurring complaints 

14 over overlong or ambiguously worded lists of matters 

15 for examination on the one hand and unprepared 

16 witnesses on the other. Observation two, despite the 

17 frequency of those complaints from lawyers the courts 

18 see relatively few motions on this topic. So the 

19 Committee is asking what can we do as rule writers to 

20 help lawyers work out these problems under 30(b)(6) 

21 without the unintended consequence of bringing more of 

22 these cases to courts for resolution. 

23 LCJ has proposed a number of ideas and I 

24 reiterate all of them but I would like to focus on one 
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1 because I think it is the most obvious tool in the 

2 rule writers’ toolbox for this problem. Presumptive 

3 limits. The question has been asked wouldn’t a 

4 presumptive limit result in broader topics and I 

5 suggest to you that experience is almost universally 

6 the opposite. Page limits are used to help lawyers 

7 focus on the important issues. Time limits in 

8 appellate arguments are instituted for the same 

9 reason. And time limits in trials have the same 

10 effect of focusing on what’s important. When he was 

11 President Woodrow Wilson was asked how, he was a 

12 famous orator, as you know, was asked how long does it 

13 take you to write a speech and he said well, if it’s a 

14 10 minute speech it takes me two weeks. If it’s a 

15 half an hour speech it takes me one week. If I can 

16 talk as long as I want it requires no preparation at 

17 all, I am ready now. This is the problem with an 

18 unlimited number of topics in 30(b)(6) depositions.

19 Now, let’s talk about the toolbox. 

20 Presumptive limits are well accepted in other 

21 categories under the civil rules. This committee 

22 spent a lot of time looking at presumptive limits 

23 during the consideration of what became the 2015 

24 discovery amendment. And what it found is that the 
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1 existing presumptive limits were appropriate.

2 JUDGE BATES: If there is a value in 

3 presumptive limits, what would you suggest that the 

4 presumptive limit in Rule 30(b)(6) should be?

5 MR. DAHL: We have proposed 10.

6 JUDGE BATES: Don’t you think that would 

7 result in numerous conferences with the court to get 

8 an exception to the presumptive limit of 10 in broad 

9 categories of cases?

10 MR. DAHL: There may be a better number, 

11 Your Honor. The wrong number is unlimited. That is 

12 the wrong number for the reason that you are talking 

13 about a tool -- what this committee wants to do is 

14 help lawyers resolve these issues without coming to 

15 the court unnecessarily and a presumptive limit on the 

16 number of topics has that affect. It will create the 

17 conference that the proposal tries to institute by 

18 fiat, just have a conference. A presumptive limit 

19 will create exactly what you’re trying to do with that 

20 mandate by incentivizing the lawyers to --

21 JUDGE BATES: But if the rule --

22 MR. DAHL: -- make a resolution.

23 JUDGE BATES: If the rule requires the 

24 conference anyway what do we care whether a 
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1 presumptive limit requires the conference --

2 MR. DAHL: Because the conference --

3 JUDGE BATES: -- because the conference is 

4 going to occur anyway.

5 MR. DAHL: Because the conference can go 

6 like this. You’ve sent me 160 topics what do you 

7 really want out of this deposition? The answer is all 

8 of it.

9 JUDGE JORDAN: And --

10 MR. DAHL: Where does that go?

11 JUDGE JORDAN: And what if the case actually 

12 warrants 160?

13 MR. DAHL: That’s why it’s a presumptive 

14 limit.

15 JUDGE JORDAN: Right.

16 MR. DAHL: By definition.

17 JUDGE JORDAN: So the question is what 

18 efficiency is gained in the system by asserting a 

19 presumptive limit, which it sounds like from what you 

20 are saying would necessarily have to be picked 

21 arbitrarily because there is no way to know what the 

22 right number is except the position of your 

23 organization is there has to be some number. How do 

24 we pick that number without it being utterly 
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1 arbitrary, and since it’s utterly arbitrary how do we 

2 know we are not creating more inefficiency in the 

3 system rather than reducing inefficiency?

4 MR. DAHL: Unlimited is the wrong number. 

5 Ten might be the right number. Twenty-five works for 

6 interrogatories. I don’t know what the number is, but 

7 it’s not unlimited. And keep in mind that the purpose 

8 that you are looking at that for is because you want 

9 to help lawyers resolve the issue and the issue is the 

10 broad and poorly defined topics on the one side and 

11 the preparation of the witness on the other. That’s 

12 what the Committee is trying to solve.

13 JUDGE BATES: From your experience and with 

14 the lawyers and corporations that are part of your 

15 organization, if a deposition notice that lists over 

16 100 topics is received, how often does that deposition 

17 actually occur based on over 100 topics?

18 MR. DAHL: Anecdotally what I hear is 

19 seldom. And that’s one of the problems with the 

20 notice --

21 JUDGE BATES: That’s because it’s worked out 

22 through discussions, right?

23 MR. DAHL: Well not always, no, Your Honor. 

24 What happens is that the companies are under a duty to 
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1 prepare for 160 topics and sometimes they walk in the 

2 deposition is about three topics because the notice 

3 isn’t used to focus the deposition. The deposition is 

4 used as a trial tactic to keep the other side busy, 

5 shall I say.

6 MR. SELLERS: Mr. Dahl?

7 MR. DAHL: And --

8 MR. SELLERS: I’m sorry, go ahead.

9 MR. DAHL: Um --

10 MR. SELLERS: It seems like you’re 

11 presenting us a choice on the one hand the party 

12 noticing the deposition either has a presumptive limit 

13 and if the meet and confer doesn’t resolve the 

14 differences that party has to apply to the court. On 

15 the other hand you have the party producing the 

16 witness if there are no presumptive limits you’re 

17 saying that party is going to have to move for 

18 protective order. So, on either end the question is 

19 which party bears the burden of going to the court in 

20 the event there is no resolution at meet and confer. 

21 I’m curious why you think that the burden of going to 

22 the court ought to be placed presumptively on the 

23 noticing party.

24 MR. DAHL: My observation -- the Committee’s 
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1 observation is that lawyers tend to work these issues 

2 out under 30(b)(6) and the question for the rule 

3 writers is: What is in the rule writer’s toolbox to 

4 help lawyers have that discussion and make it work?

5 And the answer is that the most available, 

6 tested, proven, accepted answer is presumptive limits. 

7 That’s what makes lawyers have that conversation and 

8 have it meaningful. This Committee has observed 

9 people don’t come to the courts that frequently to 

10 talk about these issues, they work it out. This is a 

11 way that helps them work it out. I predict that this 

12 will not result in people coming to the court for 

13 protective order, but rather avoiding that because it 

14 gives the framework.

15 I know I’m out of time but I want to make 

16 just two quick points.

17 JUDGE BATES: But it wouldn’t be a 

18 protective order as Mr. Sellers points out. The 

19 presumptive limit would put the burden on the noticing 

20 party to have to go to court to get an exception to 

21 the presumptive limit. Why is that a good idea?

22 MR. DAHL: Presumptive limits are a tool 

23 writer’s tool to give lawyers the ability to work that 

24 out. That is what the presumptive limit is for --
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1 MS. TADLER: But --

2 MR. DAHL: -- and that’s how it works.

3 MS. TADLER: But you’ve already told us that 

4 in most cases the issues tend to be worked out so you 

5 are really talking about a rule for those people who 

6 are in essence bad actors, or are unreasonable, they 

7 are unable, or incapable, or unwilling to work it out. 

8 Why should we make a rule exclusively for bad actors 

9 as opposed to the fact that what I understand from you 

10 is that most instances do work it out because they 

11 understand their responsibilities?

12 MR. DAHL: Presumptive limits are not a 

13 penalty, they are a tool for getting lawyers to --

14 help lawyers work out the essence of the 30(b)(6) 

15 deposition, the essence of the problem that lawyers 

16 complain about, inadequate notice of what the 

17 deposition is about, inadequate prepared witnesses, 

18 narrowing, just like a page limit, narrowing the focus 

19 of that deposition is what makes that conversation 

20 happen and make it meaningful. That’s why to do it.

21 A quick point just because I brought up the 

22 --

23 JUDGE BATES: It’s got to be very quick.

24 MR. DAHL: It will be. 
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1 Committee’s history. The reasons why the 

2 Committee did not proceed with presumptive limits in 

3 the 2015 amendments after proposing them is three 

4 things:

5 Written discovery is more cost efficient and 

6 effective than other kinds of discovery like 

7 depositions. That’s why they decided not to add new 

8 presumptive limits on written discovery.

9 Secondly, other changes in the rules 

10 proportionality and early case management were thought 

11 to take care of the presumptive limit issue on written 

12 discovery. This Committee does not seem very 

13 interested early case management as a solution to 

14 30(b)(6).

15 And proportionality has had no meaningful 

16 effect on this rule yet. One hundred and sixty topic 

17 deposition, an hour per topic, is one month of time. 

18 There’s no proportionality in them.

19 Thank you very much for considering.

20 MR. BATES: Thank you, Mr. Dahl. And thank 

21 the Lawyers for Civil Justice for their comments as 

22 well. Our next witness is Michael Slack.

23 MR. SLACK: Good morning. I’m Mike Slack. 

24 I’m from Austin, Texas. My firm Slack Davis Sanger 
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1 does aviation work for plaintiffs all over the country 

2 and occasionally internationally.

3 I’ll just state I like the current rule. I 

4 notice that none of my colleagues on the defense bar 

5 in the aviation practice are here. I think the rule 

6 has worked well for us and I cannot overstate the 

7 importance of collegiality --

8 PROF. MARCUS: Excuse me. Do you -- 

9 MR. SLACK: -- and communications. 

10 PROF. MARCUS: Do you often have far more 

11 than 20 topics --

12 MR. SLACK: Sometimes.

13 PROF. MARCUS: -- in a 30(b)(6)?

14 MR. SLACK: Yes, sometimes. But let me tell 

15 you, I always start out with a letter to opposing 

16 counsel. And if they don’t get that letter at some 

17 point after written discovery has transpired they’ll 

18 call me, Slack, where’s your letter? Where’s your 

19 30(b)(6)? And I send that letter and almost 100 

20 percent of the time, depends on which lawyer inherits 

21 it at the firm, but I know who to go to to move things 

22 along, we have a conversation. I would prefer to 

23 depose one witness on two topics than two witnesses on 

24 one topic.
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1 Now, think about that, back to presumptive 

2 limit discussion. You do get into problems when you 

3 have multiple witnesses occupying the same topic space 

4 and then you have the practical problem in the 

5 deposition of where does that boundary exist? So I 

6 want to refine my subject matter so that my opposing 

7 counsel and -- and I think there’s a beneficial 

8 effect for opposing counsel to have this conversation 

9 -- so that we go into that deposition with a clear 

10 understanding of what it is we’re trying to 

11 accomplish.

12 JUDGE JORDAN: So meet and confer is good. 

13 We understand. But could you help us understand the 

14 plaintiff’s side of this with regard to presumptive 

15 limits which the last few witnesses have been talked 

16 to. Why isn’t it indeed helpful to have a number even 

17 if it has to be picked arbitrarily to be sort of a 

18 center of gravity around which people can start to 

19 have a discussion so that it isn’t an unbounded 

20 universe where somebody who wants to can just dump 160 

21 topics on somebody in a case and make that the anchor 

22 point?

23 MR. SLACK: Yeah, well to start with I think 

24 these examples of 100 plus topics those are about as 
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1 real as snowballs in Dallas in July, okay?

2 JUDGE JORDAN: Well, there’s some snowballs 

3 right next to you.

4 (Laughter.)

5 MR. SLACK: I understand, but by the time 

6 you get to the deposition -- by the time you get to 

7 the deposition I just have not seen that in nature, 

8 Your Honor. I just have not seen that happen, okay?

9 Now, does a presumptive limits start a 

10 conversation about narrowing? I guess you could make 

11 that statement. I’m not going to disagree with that 

12 but finding that number is difficult because if we 

13 went beyond five minutes and you abstracted from me, 

14 either over a cocktail or just standing around 

15 chatting a number, it would probably be good for 

16 merits on an aviation case generically within my 

17 experience.

18 Now, I leave here and one of my colleagues 

19 back there that does pharmaceutical cases calls me and 

20 gives me a nastygram, well what do you mean 25 or 30, 

21 okay, because that’s my experience and I’m dealing 

22 with a relatively small bar in the aviation realm.

23 And so you are getting an answer that contextually is 

24 in my practice area.
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1 So, that’s my difficulty when we say 

2 plaintiff’s bar, there are a lot of practice areas 

3 that I can feel them in the back of the room now going 

4 where is Slack going with this, but I don’t want to be 

5 the person that establishes a number that may work for 

6 me in 99 percent of my cases before I have to say can 

7 we excuse that number on this case. But it creates 

8 problems back there. So, it is a real problem. And 

9 the point that was made about overly broad topic areas 

10 is the immediate instinct that lawyers will resort to 

11 to solve the problem.

12 JUDGE ROSENBERG: Can I ask a question? You 

13 said you send this letter out, this well-known letter. 

14 Do you do that before you send your notice out?

15 MR. SLACK: Yes.

16 JUDGE ROSENBERG: Okay. So you letter, meet 

17 --

18 MR. SLACK: Letter.

19 JUDGE ROSENBERG: -- and confer and then 

20 notice?

21 MR. SLACK: Yes. 

22 JUDGE ROSENBERG: Do you find the notice 

23 then becomes more tailored and limited?

24 MR. SLACK: It does.
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1 JUDGE ROSENBERG: So do you think a meet and 

2 conferral before, is there something magical about a 

3 meet and conferral before the notice goes out?

4 MR. SLACK: Well, we just do that routinely. 

5 One reason we do is so we identify witnesses that we 

6 may also be deposing individually, non-30(b)(6) and 

7 have that conversation, too, like I also want to 

8 depose that guy individually, or that lady, and do we 

9 do them then or do we do them another time?

10 And particularly on international 

11 deposition, getting this sorted out if I’m going to 

12 France to take deposition getting this sorted out on 

13 the front end is a big deal. You don’t want to have a 

14 train wreck over there after expending all that time 

15 and energy and having 15 lawyers in the room and 

16 there’s a chicken fight breaks out over the subject 

17 matters.

18 So, I just -- I don’t understand the 

19 investment of effort in topic areas and a conversation 

20 almost 100 percent of the time I will get the names of 

21 the witnesses about seven days before. I mean, I used 

22 to joke with my colleagues on the other side, I said 

23 you know who they are they’ve been in the woodshed for 

24 four days, my goodness, tell me at least when they go 
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1 to the woodshed who you’re taking. So, I think that 

2 the communication piece, collegiality piece, both of 

3 those are very important and our letter is simply just 

4 a heads up, we’re getting ready to start having the 

5 discussion about something that is going to evolve 

6 into a notice. 

7 JUDGE ROSENBERG: And does that discussion 

8 lead to a limitation in your opinion?

9 MR. SLACK: Yes, it has.

10 JUDGE ROSENBERG: A narrowing of the notice?

11 MR. SLACK: Yeah, and I’ve got a partner and 

12 sometimes he and I disagree if we’re going on the trip 

13 together and I say look, you know, I am after a good 

14 product. I’m after as much specificity as I can get. 

15 The overbreadth becomes a problem sometimes and so, 

16 you know, at the end of the day you have a certain 

17 amount of time to get a certain quality work product 

18 and that’s important, and why should I beat up my 

19 opposing counsel with some kind of game over the 

20 subject matters that are really pertinent to that 

21 case?

22 JUDGE BATES: Thank you, Mr. Slack. You’ve 

23 used your time well.

24 Next witness will be Terri Reiskin.
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1 MS. REISKIN: Thank you, Your Honor. Good 

2 morning. My name is Terri Reiskin. I’m a partner in 

3 the firm of Dykema Gossett. I’m in our D.C. office 

4 and I’m the head of our Products Liability Class 

5 Actions and Professional Liability Practice Group. I 

6 submitted a comment on behalf of our firm, just a 

7 couple of weeks ago and I appreciate the opportunity 

8 to address the committee to follow up on that. 

9 My practice is a defense practice. I 

10 primarily represent corporations in products liability 

11 and class actions in courts all over the country and I

12 have for more than 30 years. The class action 

13 practice was alluded to earlier, I think, presents 

14 some unique problems, many of which have been touched 

15 on here and I wanted to share --

16 PROF. MARCUS: You would include MDL 

17 practice along with that?

18 MS. REISKIN: Yes. 

19 PROF. MARCUS: And you think a presumptive 

20 limit of 10 or something like 10 would be a good 

21 choice for those kinds of cases?

22 MS. REISKIN: I think a presumptive limit is 

23 a good idea. I’m not here to say whether it should be 

24 10 or 20 or 30. I’m very confident, and I would urge 
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1 you to say that we can all agree it shouldn’t be a 

2 hundred. It shouldn’t be 150. It shouldn’t be 200. 

3 It should be a number that is a reasonable number. 

4 And I’m a little confused at why there is any concern 

5 about that. We’ve already seen --

6 JUDGE JORDAN: Well, because reasonable 

7 presumes that you have some basis for reasoning and 

8 when you ask us to do something in the abstract, what 

9 is our basis for reasoning and saying that number is 

10 reasonable. What we hear from your friends on the 

11 plaintiff’s side is every case is different and in 

12 effect picking an arbitrary number isn’t helpful, it’s 

13 only shifting the burden from the producing party to 

14 the requesting party.

15 What’s wrong with that logic and why is 

16 picking a number better than having no number and 

17 letting it be worked out case by case?

18 MS. REISKIN: I entirely agree with Mr. 

19 Dahl, first, that having a number helps the 

20 discussion. It makes the meet and confer more 

21 efficient because there’s a target out there that 

22 everyone is working toward and an idea of what a court 

23 might find unreasonable if it were to have to go to 

24 the court. But I would say, I don’t understand why 
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1 there’s any concern about how this would operate 

2 because here’s how it operates with the 10 fact 

3 witness presumptive limit.

4 That applies to all kinds of cases, large 

5 and small, and what happens is at the start of the 

6 case the parties get together and they talk about is 

7 that a reasonable number in our case? So that’s 

8 specific to that case. And I have that discussion in 

9 almost every case I’m involved in and usually if it’s 

10 a big case, if it’s an MDL it depends on what the 

11 scope of it is. MDL doesn’t necessarily mean that you 

12 need 150 topics. I mean, an MDL is really just a 

13 bunch of cases thrown together. The issues are all 

14 the same. So, you know, we have that discussion at 

15 the outset.

16 JUDGE ERICKSEN: So I wonder --

17 MS. REISKIN: And then we agree and then we 

18 go to the court and say in this case we need 30.

19 JUDGE ERICKSEN: Okay.

20 MS. REISKIN: Or whatever it is.

21 JUDGE ERICKSEN: In your opinion does the 

22 inclusion of the last paragraph of the draft committee 

23 note help you at all in getting -- in having assurance 

24 that the court is going to be receptive to an early 
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1 discussion about at least the concept of a general 

2 number of appropriate topics in an individual case? 

3 Because so far there hasn’t been any reference to the 

4 26(f) conference talking about the 30(b)(6) procedural 

5 issues, what kind of 30(b)(6) we would be looking for 

6 here. And so, at least now, that concept is 

7 introduced in the committee note but not in -- it’s 

8 introduced in a way that a court can say look there is 

9 authority for doing this, it’s not inappropriate. So 

10 my question to you is would you anticipate that you 

11 would be helped at all by that reference, 

12 understanding that it doesn’t go as far as you might 

13 want?

14 MS. REISKIN: I don’t think that it’s 

15 terribly helpful, frankly. I mean, I think what’s 

16 happening is that 30(b)(6) depositions are being used 

17 as an end run around the 10 fact witness limit. So, 

18 okay I only have 10 fact witnesses or whatever you are 

19 able to agree on and get the court to sign onto at the 

20 beginning of the case and then what you get is a 

21 request for way more topics that are reasonable, 

22 because in my case often the plaintiffs know who's 

23 been deposed in other cases. They want those people 

24 but they don’t want to use up their 10 for those, 
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1 that’s why disclosing the identity of the witness, a 

2 requirement to disclose the identity of the witness is 

3 a problem because that gives plaintiffs another 

4 opportunity to do that end run around the presumptive 

5 limit on the fact witnesses. 

6 So, you know, there are other problems here 

7 that are also not being addressed. For example, 

8 multiple notices to the same organization. Rule 

9 30(a)(2) requires leave of court to depose a party 

10 more than once. And yet, I see all the time 

11 plaintiffs in class actions, in particular, and 

12 sometimes in MDLs they want to do this first round of 

13 depositions where they are addressing process or 

14 identity or databases and then they want to do another 

15 round so I get multiple notices, multiple 30(b)(6) 

16 notices, each with many topics. There’s no clarity on 

17 why that’s permitted. There’s no clarity on how the 

18 seven hour limit applies in a 30(b)(6) context. These 

19 are problems that aren’t being addressed but are real 

20 ones that apply to practitioners every day.

21 JUDGE BATES: But aren’t they being 

22 addressed through discussions between counsel and not 

23 requiring court resolution in most instances?

24 MS. REISKIN: They are certainly the topic 
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1 of discussions among counsel. I have them in almost 

2 every single case and sometimes we agree to disagree. 

3 Sometimes we decide to let a deposition go forward and 

4 we see if it causes a problem and we have to go to the 

5 court. There is a lot of disincentive to go to the 

6 court and that results in just swallowing these 

7 unfairnesses and these burdens and the court may not 

8 hear about them if they, you know -- I’m not going to 

9 go to the court and say they want 10 hours instead of 

10 seven on one deposition. We’re going to try to work 

11 that out obviously.

12 PROF. MARCUS: So what Mr. Sellers mentioned 

13 a moment ago if I recall correctly concerning who 

14 bears the onus of going to court is really a big deal 

15 from your perspective, and you’d like the other side 

16 to bear that burden?

17 MS. REISKIN: No, it’s not a question of who 

18 goes to court it’s what is the process that we all 

19 need to follow. I mean I typically, I will give 

20 written objections to deposition notices and then I 

21 have a discussion among myself, my client, my 

22 colleagues do we have to file a motion for protective 

23 order before the deposition? With some plaintiffs I 

24 don’t feel comfortable not filing a motion for 
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1 protective order. Do we wait and see how it goes and 

2 we see if they argue with us? You know, there’s no 

3 clear pathway, that’s the problem with the rule.

4 JUDGE BATES: But this seems to be an 

5 explanation for why presumptive limits and these rigid 

6 requirements don’t work because each case is different 

7 as you’ve just described.

8 MS. REISKIN: Not at all. I think the 

9 problem is that it is terribly inefficient that I have 

10 to in every single case argue about the scope, I have 

11 to argue about the numbers, I have to argue about how 

12 many notices you get. I mean, you’re not seeing the 

13 inefficiencies. They are all on my level and they 

14 don’t get to you. If I had limits, if I had rules we 

15 would know how to proceed. We would have a 

16 conversation, sure.

17 JUDGE JORDAN: A presumptive limit by itself 

18 would solve these problems?

19 MS. REISKIN: It wouldn’t solve all the 

20 problems, there are many other problems, but it would 

21 help --

22 JUDGE JORDAN: But it --

23 MS. REISKIN: -- considerably.

24 JUDGE DORDAN: But it -- would it -- in the 
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1 end is it not doing, just moving who has got the 

2 burden to go to the court if you can’t agree?

3 MS. REISKIN: No, not at all. 

4 JUDGE JORDAN: Really?

5 MS. REISKIN: No, because if you have that 

6 conversation early in the case, if it’s a case that 

7 justifies more than the presumptive limit we would 

8 either agree at that point or we would get the court 

9 involved at that point when the court is already 

10 addressing presumptive limits on numbers of fact 

11 depositions, numbers of interrogatories, then we have 

12 a guidepost. Everyone is operating from that 

13 guidepost applicable to that case from the start. 

14 That would be terribly helpful.

15 MS. TADLER: But you’re already generally 

16 negotiating with your counterpart, as you said, in the 

17 cases that you are involved in at least, right, in the 

18 MDLs, class actions, et cetera that generally speaking 

19 you do work it out? You have discussion about it, 

20 those are reasonable discussions. You may decide that 

21 you’re going to allow for some extra hours or maybe 

22 you’re going to end up with -- would it be fair to say 

23 sometimes you get a notice for a 30(b)(6) and it may 

24 have, I don’t know, 50 topics and they end up being 
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1 narrowed by virtue of your back and forth meet and 

2 confer with your colleague?

3 MS. REISKIN: Sometimes, and sometimes we go 

4 to court. It really just depends. But, you know, the 

5 problem of the overbreadth of the notice and the scope 

6 issues are that in the deposition itself I’ve been in 

7 depositions where I’ve had to object to every other 

8 question on grounds of scope. That’s ridiculous. I 

9 mean --

10 JUDGE BATES: That is ridiculous, Ms. 

11 Reiskin, and hopefully you won’t have to do that too 

12 often, but I’m not sure we have heard anything that 

13 would cure that problem but thank you very much for 

14 your testimony. 

15 MS. REISKIN: Thank you for hearing from me.

16 JUDGE BATES: We appreciate it. And that 

17 brings us to Susannah Chester-Schindler as our next 

18 witness.

19 MS. CHESTER-SCHINDLER: Good morning.

20 JUDGE BATES: Good morning.

21 MS. CHESTER-SCHINDLER: My name is Susannah 

22 Chester. I work at the law firm of Waters & Kraus. 

23 We principally practice in product liability with a 

24 focus on asbestos litigation and other catastrophic 
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1 injuries. As a preliminary matter I would just 

2 encourage everyone to look at the commentary of my 

3 colleagues on the asbestos bar. They have taken the 

4 time to submit comments, I know some of them are 

5 preparing comments that will be submitted by the 

6 deadline. To that end, I think that the meet and 

7 confer requirement that is currently under 

8 consideration is extremely important, it’s well9 founded and it’s in keeping with the current spirit of 

10 disclosure under the Federal Rules of Civil Procedure. 

11 I want to briefly start out with an issue 

12 that was raised by my colleagues on the defense bar 

13 which is we don’t have a framework for addressing 

14 objections, issues that come up about how the 

15 deposition will be conducted and the scope. So first 

16 of all, I think that is something that can be 

17 addressed in the Rule 26 conference. Not the 

18 substantive issues, but how do we bring any 

19 disagreements between the parties on the scope to the 

20 attention of the court?

21 And by way of example I recently conducted a 

22 Rule 26(f) conference in the United States District 

23 Court for Minnesota and the court actually has a 

24 template. There are three boxes that you can select 
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1 from, have an informal discussion with the court, in 

2 other words call and ask for an informal conference 

3 with the court, go immediately to motions practice or 

4 there’s a disagreement between the parties on how to 

5 do this and as a result if you check that box that 

6 will be address during that conference. So, in other 

7 words, you can utilize that rule to put into place a -

8 - excuse me, I have a cold and I’m dealing with that -

9 - to put into place a framework for dealing with 

10 objections and how do we raise these, do we need to 

11 seek a motion for protection --

12 JUDGE JORDAN: And that --

13 MS. CHESTER-SCHINDLER: -- or is it 

14 incumbent --

15 JUDGE JORDAN: That seems to be --

16 MS. CHESTER-SCHINDLER: Yes.

17 JUDGE JORDAN: -- ma’am, what the defense 

18 bar is asking for is for structure. If your 

19 experience there with the District Court of Minnesota 

20 was positive because they added structure, why 

21 wouldn’t it be beneficial more generally to the 

22 litigators across the country to give some more 

23 structure, that is a Rule 45 style mechanism for 

24 objection or some presumptive limit so that there is 
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1 more structure in the rule than just saying meet and 

2 confer?

3 MS. CHESTER-SCHINDLER: I think because it 

4 varies from court to court on how they want to handle 

5 it and I think it should be the discretion of the 

6 court on how to address those issues. It may not 

7 necessarily be a one size fits all. Which brings me 

8 to --

9 JUDGE BATES: Why is it better to leave it 

10 in the discretion of the court, because after all 

11 that’s what the national rule-making process is all 

12 about.

13 MS. CHESTER-SCHINDLER: Sure.

14 JUDGE BATES: Whether a national rule is 

15 better than leaving it to the discretion of the local 

16 courts. Why is it better to leave it to the 

17 discretion of each district court?

18 MS. CHESTER-SCHINDLER: Well, I think we 

19 need to hone in on what we’re leaving to the 

20 discretion of the court and what can be addressed by 

21 the national rule-making policy which is the 

22 defendants are concerned about there is no framework 

23 for addressing objections or discovery disputes. We 

24 don’t know whether we file a motion to compel, on the 
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1 plaintiff’s side, or a motion for protection. And so 

2 that is something that the district court can address. 

3 It may be that neither one is necessary and at the 

4 instance of the District Court of Minnesota there is 

5 the ability to simply have an informal conference. 

6 The meet and confer component of the rule under 

7 consideration is an excellent avenue for frankly 

8 avoiding those disputes entirely.

9 To that end --

10 MR. GARDNER: Can I ask you a question about 

11 that? 

12 MS. CHESTER-SCHINDLER: Sure.

13 MR. GARDNER: Why isn’t the existing meet 

14 and confer requirements in the motion for protective 

15 order and the motion to compel already accomplishing 

16 what you’re suggesting the proposal would accomplish?

17 MS. CHESTER-SCHINDLER: Candidly, in my 

18 experience they are addressing that issue. My 

19 practice is comparable to my colleague who spoke 

20 previously. When I do a Rule 30(b)(6) notice I don’t 

21 simply send the notice. I prepare a letter. I list 

22 the topics that I need to speak to someone about and I 

23 send it to counsel and then I call them and we have a 

24 meet and confer conference. I ask the identity of the 
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1 witness. That helps me for logistical purposes and as 

2 a practitioner in the discrete area of asbestos 

3 litigation it helps me identify --

4 JUDGE JORDAN: Do you --

5 MS. CHESTER-SCHINDLER: -- whether or not I 

6 even need to take the deposition.

7 JUDGE JORDAN: Do you typically get that 

8 information?

9 MS. CHESTER-SCHINDLER: Yes.

10 JUDGE JORDAN: The witness identification?

11 MS. CHESTER-SCHINDLER: Yes.

12 JUDGE JORDAN: And how far in advance do you 

13 usually get that?

14 MS. CHESTER-SCHINDLER: It varies from case 

15 to case but typically I get it in the meet and confer 

16 and I see -- it’s peculiar to me that there is this 

17 concern over identifying the witness. In my 

18 experience I have given the name of the witness and it

19 allows me to tailor my foundational questions to that 

20 witness’s background. 

21 JUDGE JORDAN: Are there repeat witnesses in 

22 the asbestos realm that you think might make the 

23 experience you are having somewhat unique or, that is 

24 are there people showing up in asbestos litigation on 
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1 a regular basis that make the 30(b)(6) identification 

2 of a witness less problematic than it might be for 

3 other cases?

4 MS. CHESTER-SCHINDLER: Absolutely. That is 

5 certainly the case.

6 MS. TADLER: Do you think -- Judge Ericksen 

7 earlier spoke about the component of the committee 

8 note referencing Rule 26(f). Is that something that 

9 you are supportive of or you think requires more 

10 teeth, less teeth? It sounds like you are meeting and 

11 conferring and resolving those issues, that’s my first 

12 question. My second question is, is it in your 

13 experience the case where you identify these topics in 

14 a letter and then perhaps either often or at least 

15 time to time you end up not having to take a 30(b)(6) 

16 at all because there is some other means to get the 

17 information that you are looking for.

18 MS. CHESTER-SCHINDLER: Speaking to your 

19 first question, I think that the Rule 26(f) conference 

20 is a forum for identifying a framework for bringing 

21 objections before the court or disputes before the 

22 court. But it is difficult to get into substantive 

23 discussions at that point because it is just too early 

24 in the litigation to know the scope of your 
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1 depositions. Whether or not if you, for example, have 

2 an extremely large corporation with a very technical 

3 way of maintaining documents you may need preliminary 

4 30(b)(6)s on that issue and then proceed on to 

5 different substantive issues. 

6 With respect to your next question, I rarely 

7 find I do not need a 30(b)(6) deposition at all. What 

8 I do find -- and again this is discrete to the area of 

9 asbestos litigation since I understand that came up in 

10 the Phoenix hearing to a degree. 

11 MS. TADLER: I appreciate that clarity.

12 MS. CHESTER-SCHINDLER: -- is that if it is 

13 a witness I have seen before I can -- in some cases I 

14 can agree not to take the deposition, we can agree to 

15 use prior transcripts and we do that through the meet 

16 and confer process, which is why it is a beneficial 

17 addition to the rule. If that is not the case, and it 

18 isn’t always because there is some witnesses who I 

19 know from deposing them before simply cannot speak to, 

20 for example, what was supplied in Plaquemine’s Parish, 

21 Louisiana.

22 I know that that witness has historically 

23 not been able to address regional supply chain issues. 

24 And so I may raise that with counsel. It remains the 
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1 organizations right to designate the person to speak 

2 to that, and if they tell me we are going to designate 

3 this person and this person will be educated on that 

4 topic then we are in a good position, you know, we can 

5 move forward. And I’ve alerted them to the fact that 

6 this is something I will be on the lookout for if you 

7 send a know nothing witness, which does happen.

8 I would encourage the Committee to look at 

9 the commentary of Ms. Lindsey Cheek. She had a case 

10 in the Western District of Louisiana where a --

11 JUDGE BATES: I’m not sure we have time to 

12 go into --

13 MS. CHESTER-SCHINDLER: Sure.

14 JUDGE BATES: -- another case.

15 MS. CHESTER-SCHINDLER: Oh, no, I would just 

16 encourage you to look at the comment.

17 JUDGE BATES: All right. 

18 MS. CHESTER-SCHINDLER: In any event --

19 JUDGE BATES: Thank you, Ms. Chester. I 

20 think you’ve exhausted your time. I’m afraid --

21 MS. CHESTER-SCHINDLER: Thank you.

22 JUDGE BATES: -- we’re going to have to move 

23 on to the next witness. Thank you very much.

24 MS. CHESTER-SCHINDLER: Thank you.
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1 JUDGE BATES: Our next witness is Virginia 

2 Bondurant Price. 

3 MS. PRICE: Hi, good morning.

4 JUDGE BATES: Good morning.

5 MS. PRICE: Thank you so much for having me. 

6 I’m Virginia Bondurant Price from McGuire Woods. 

7 McGuire Woods is over a thousand lawyers, 

8 international firm. We both defend and take 30(b)(6) 

9 depositions all over the country, both in U.S. 

10 District Courts and state courts. Again, thank you 

11 for having me.

12 I want to focus the committee back on the 

13 proposed rule change that appears in the red writing 

14 within the proposal. And it states “must confer in 

15 good faith about the number and description of the 

16 matters for examination and the identity of each 

17 person the organization will designate to testify.” 

18 So I want to break that down just a little bit and 

19 talk about my concerns about that specific proposal. 

20 The first part about conferring on the number and 

21 description of the matters for examination. You’ve 

22 heard from almost every single practitioner that has 

23 testified today that that happens routinely. That’s 

24 my practice, that’s everybody’s practice that I’ve 
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1 ever practiced law with that meet and confers --

2 PROF. MARCUS: When that happens, does it 

3 begin with one side saying absolutely you can’t have 

4 more than 10, or does it proceed through the listed 

5 topics and evaluate them and come up with an overall 

6 number that makes sense in light of what the topics 

7 are?

8 MS. PRICE: Closer to the latter, and the 

9 reason for that is because we don’t have a presumptive 

10 number right now that limits the number.

11 PROF. MARCUS: But if there were then your 

12 position in your side might often be I won’t talk 

13 about anything beyond number 10 on your list?

14 MS. PRICE: Well, I don’t know that that is 

15 a fair characterization of how a good faith meet and 

16 confer might go. If there is a presumptive number on 

17 topics I think what would more likely happen just like 

18 it happens with Rule 16 and Rule 26 at conferences now 

19 is that you would have an open dialogue with the 

20 plaintiff’s attorney, or defense attorney, about do we 

21 need just like we do with interrogatories. Does other 

22 side anticipate needing additional interrogatories? 

23 Does either side anticipate needing additional fact 

24 witnesses where each side right now has a presumptive 
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1 limit of 10. I think that that conversation happening 

2 early in the case and alerting the court during a Rule 

3 16 conference that this case may be a little bit 

4 different and may require more than the presumptive 

5 limit and having an open dialogue would be, I think, a 

6 lot better than what we have right now where there is 

7 an unlimited number.

8 So I do think that the meet and confer 

9 process is an important one as for topic and scope, 

10 but it's not the correct band-aid in this situation. 

11 I think that additional steps need to be taken within 

12 the 30(b)(6) rule to help litigants in motion practice 

13 and in these very overbroad notices --

14 JUDGE JORDAN: Can you --

15 MS. PRICE: -- we are receiving.

16 JUDGE JORDAN: Can you explain why you think 

17 a presumptive limit would actually -- you just said it 

18 would be a lot better, but you describe effective meet 

19 and confer happening in the great majority of the 

20 cases. If it’s happening effectively and tailoring 

21 the number to the case as it is, what’s the advantage 

22 of having a number set other than to give responding 

23 parties a number that they can focus on and say you 

24 don’t get more or you are too far outside that?
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1 MS. PRICE: Sure. I think -- and if I gave 

2 the impression that meet and confers are completely 

3 effective, they are not. I’ve been before court on 

4 protective orders trying to limit the scope and the 

5 number of topics that have been presented on a notice 

6 to my clients and --

7 JUDGE JORDAN: I’m not suggesting that you 

8 suggested that they are always effective, but I had 

9 the impression from what you were saying that they are 

10 generally effective. Did I misunderstand that?

11 MS. PRICE: Yes, Your Honor. What I would 

12 say about that is I don’t think -- I think they have 

13 an effective component. I don’t think that they are 

14 an effective fix to the situation that we have where 

15 we have a lot of plaintiff's attorneys that serve 

16 these large, as one of my colleagues presented with 

17 these binders, these large notices that it’s 

18 incredibly time consuming for our clients to respond 

19 to.

20 JUDGE JORDAN: What’s your experience with 

21 how often that happens? A percentage if you can give 

22 it of cases in which you’ve got a 30(b)(6) notice. 

23 How many times do you get something where you go oh my 

24 gosh, it’s 160, this is outlandish?
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1 MS. PRICE: More often than not. More often 

2 than not. So I would urge -- I think a meet and confer 

3 with topic and scope is appropriate as the proposal 

4 has. A meet and confer for identity of witness is not 

5 appropriate. It ventures into territory where it is 

6 implying to the plaintiff’s counsel that there is

7 something to confer about over the identity of the 

8 witness.

9 JUDGE ERICKSEN: Could I ask you a question 

10 about that?

11 MS. PRICE: Yes, ma’am.

12 JUDGE ERICKSEN: We’ve heard that sometimes 

13 it's necessary to have more than one corporate 

14 representative testify. Would you have any objection 

15 to inclusion in the matters to be discussed then, like 

16 the number of people that will be testifying and the 

17 portion of the 30(b)(6) notice that that person will 

18 testify about? So, not the human being identity 

19 necessarily, but at least if there are, say, four 

20 people who are responding to a single 30(b)(6) notice 

21 that the subpoenaing party will have an idea okay, 

22 like in the morning I’m going to be talking to 

23 somebody about these topics.

24 MS. PRICE: Your Honor, I think the most 
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1 critical piece of my testimony today is that I don’t 

2 think there should be a meet and confer as to identity 

3 of the witness. My practice and the practice of my 

4 colleagues as I’m sure you’ve heard today varies 

5 widely, right? Some people give the identity of the 

6 witness, some people give what you were suggesting, 

7 we’re going to have two witnesses, the person that is 

8 going to testify on Tuesday is going to cover topics 

9 1, 3, 7, whatever. The person that is going to 

10 testify on Friday is going to cover topics X, Y and Z.

11 JUDGE ERICKSEN: I just can’t imagine a 

12 problem with requiring that.

13 MS. PRICE: And to be frank with you, you 

14 know, if I were on the other side that was taking the 

15 deposition that’s information that I would like to 

16 know, okay when I walk into this deposition am I going 

17 to be covering all of the topics or am I going to be 

18 covering ten of the topics? I think the problem that 

19 comes from having a rule that mandates that the 

20 identity of the witness be disclosed to the other 

21 party is that it doesn’t account for things that could 

22 happen, that could go wrong. And there is some 

23 opposing counsel that are very reasonable to deal with 

24 and we say we’ve been preparing this witness to 
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1 testify on these topics and it looks like at the 12th

2 hour we’re going to have to substitute in someone to 

3 testify on these two topics and we’re now going to 

4 have to go to a different city and do a different 

5 deposition. Some --

6 JUDGE BATES: Well, no rule is going to 

7 account for all contingencies, but would the rule be, 

8 the 30(b)(6) be worse if it required identification of 

9 the witness of reasonable time, several days in 

10 advance of the deposition occurring? Would it be 

11 worse?

12 MS. PRICE: What I’ll say, Your Honor, is 

13 that it would be a whole lot worse if it required a 

14 meet and confer over the identity of the witness.

15 JUDGE BATES: That’s not the question I’m 

16 asking, though. 

17 MS. PRICE: To answer your question, I don’t 

18 know that it would necessarily be worse if parties 

19 were required to identify the witness X amount of days 

20 before as long as there was some understanding that 

21 things can come up in litigation that are outside the 

22 party’s control.

23 JUDGE BATES: All right. 

24 MS. PRICE: Thank you so much.
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1 JUDGE BATES: Thank you very much, Ms. 

2 Bondurant Price and now Donald Slavik.

3 MR. SLAVIK: Good morning. Thank you for 

4 allowing me to appear before you. My name is Don 

5 Slavik. I practice personal injury and product 

6 liability on the plaintiff’s side throughout the 

7 nation. I practice in 40 states. I’ve taken 30(b)(6) 

8 depositions at least multiple hundreds of times. I’ve 

9 taken eight of them in the last three weeks.

10 I’m also a professional engineer and my 

11 mantra is efficiency. I don’t get paid by the hour I 

12 get paid by the result. I don’t want to spend an 

13 extra minute taking a deposition. I don’t want to 

14 take an extra deposition I don’t need to. I want to 

15 get this done as quickly as possible to get the best 

16 result for my client at the least expense and the 

17 least amount of time, so efficiency, efficiency, 

18 efficiency. Knowing who the witness is helps me be 

19 efficient because then I can know is that person 

20 someone who has testified before, do I need to ask 

21 those questions again? Have they given their 

22 deposition someplace else and maybe I can skip the 

23 deposition. Meet and conferring I do in every case.

24 JUDGE JORDAN: Do you confer on the identity 
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1 of the witness?

2 MR. SLAVIK: I always ask. Do I always get 

3 it? No.

4 JUDGE JORDAN: Right. When you say confer, 

5 you may ask for the identity but is there some 

6 discussion, do opposing counsel freely engage with you 

7 and say let’s chat about who we want to have?

8 MR. SLAVIK: I’ll -- what I do is I call 

9 them up and say who will you be producing, maybe I can 

10 figure out whether I need to take this deposition. Is 

11 it going to be Mr. Shabadahan (phonetic)? I’ve taken 

12 him five other times, I know what he’s going to say. 

13 I’ve litigated against at least nine of the other 

14 firms that are here in cases and I know many of the 

15 people in these firms so we get along because we have 

16 these meet and confers, it’s called being civil, it’s 

17 being professional. And that’s how we make it 

18 efficient.

19 JUDGE JORDAN: One of the challenges we’ve 

20 got is hearing from the defense side that not 

21 everybody is civil and dealing in good faith in these 

22 things and it’s of concern that identifying the 

23 witness allows the deposition to move from 30(b)(6) 

24 topics to individualized attack the witness kind of 
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1 discussion. How do you respond to that concern?

2 MR. SLAVIK: First of all, I don’t do it. I 

3 haven’t seen it done in my practice of people I work 

4 with, and I’ve worked with my own firm now, worked 

5 with two other major products liability firms 

6 representing plaintiffs over my 38 years and I’ve 

7 worked with co-counsel.

8 When a 30(b)(6) goes out it’s addressing 

9 certain subjects and that’s the intention of the 

10 deposition to get information on that subject, not to 

11 take a personal attack against the witness or wander 

12 into areas, so I don’t see it. Are there -- you know, 

13 can you write a rule to take into account the odd 

14 situations, the outliers? You can’t. You’re doing it 

15 to make the most efficient rule. And if there is 

16 problems that’s what protective orders are for, that’s 

17 what conferences with the judge are. 

18 One of my best cases right now I have -- we 

19 have a conference with the magistrate judge every 60 

20 days, just 15 minutes on the phone. Is there a 

21 problem? Do we need to take care of this? how are 

22 you going with the dates? Do we need to move 

23 anything? And we get the case moving along and it’s 

24 on a schedule.
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1 JUDGE JORDAN: If you don’t get the witness 

2 identification because they decline to give it to you, 

3 is there -- how has that negatively affected the case, 

4 in some meaningful way?

5 MR. SLAVIK: It means I’m going to take 

6 longer in that deposition to find out who this person 

7 is, what department they are in, where they are going, 

8 what they learned as to opposed to if I know that 

9 they’ve already done this, I’ve read their deposition 

10 from the past, I know that they have this knowledge, I 

11 don’t have to go into the background. I save time. 

12 My last eight depositions I just took I had the name 

13 of each person in advance. I did less than two hours 

14 for almost all of them. One took three hours, and 

15 that one was 47 topics.

16 The law -- the consequences will step in 

17 here. If you limit the number of topics to like 10, 

18 or even 20, they are going to have to be broad. When 

19 I get those 47 topics, those are specific, almost 

20 questions, that they prepared the witness for. When I 

21 click through them, we were done with that deposition 

22 in less than three hours, had the answers, it was 

23 taken care of. It’s much more efficient --

24 JUDGE ERICKSEN: Mr. Slavik, what problems 
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1 do you see in your practice with the rule as it’s 

2 currently written?

3 MR. SLAVIK: I see very few problems, 

4 actually. I mean, the problems I see, I like to see 

5 -- I’d like to know the witness but meet and 

6 conferring I think is done with any professional, 

7 someone that is professional and civil, putting in a 

8 rule simply reminds people that is something that we 

9 all do whether its motion practice in individual 

10 courts or whether it’s in this situation.

11 JUDGE ERICKSEN: Right. But going into 

12 this whole process we heard desperate cries for help 

13 from lawyers who practice all over the country. And 

14 if you had a desperate cry for help before this 

15 process began, what would it be? What is needed to 

16 change in the rule, if anything, from your 

17 perspective?

18 MR. SLAVIK: What would be needed to change? 

19 Simply that the lawyers should work together to get 

20 their disputes resolved in advance so not having to 

21 bring the court in whether a protective order or 

22 trying to overcome some presumptive limits.

23 JUDGE ERICKSEN: Mm-hmm. Okay. And if I 

24 could just ask one more question. You said that 
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1 you’ve taken 30(b)(6)s in 40 different states. Does 

2 that include state courts?

3 MR. SLAVIK: I’ve taken them in state 

4 courts, yes.

5 JUDGE ERICKSEN: Okay. And do you have an 

6 estimate for how common it is for state court rules to 

7 require the organization to come up with the most 

8 appropriate witness?

9 MR. SLAVIK: PMKs, PMQs, PMKs like --

10 JUDGE ERICKSEN: Right.

11 MR. SLAVIK: -- in California. California 

12 specifically requires it. Other states I haven’t seen 

13 that. Most of the states seem to follow the federal 

14 rules which allows a designation of the person whoever 

15 the corporation wishes.

16 JUDGE BATES: Thank you very much, Mr. 

17 Slavik.

18 MR. SLAVIK: Thank you.

19 JUDGE BATES: Next witness, Toyja Kelley. I 

20 hope I got your first name correct.

21 MR. KELLEY: I was hoping I was going to get 

22 to say good morning, but it's good afternoon now. I’m 

23 Toyja Kelley. I’m a partner in the litigation 

24 department of Saul, Ewing Arnstein & Lehr where I have 
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1 a commercial litigation practice in state and federal 

2 court. In nearly 20 years of private practice I’ve 

3 had the good fortune to represent many large 

4 corporations and small companies in complex civil 

5 litigation.

6 The nature of my practice I frequently find 

7 myself on both sides of the "v" in civil litigation, 

8 but today I’m here in my capacity as the current 

9 President of DRI-The Voice of the Defense Bar. As many 

10 of you I’m sure knows, DRI is the 20,000-member 

11 international association of attorneys who represent 

12 companies and individuals in civil litigation.

13 Ten years ago DRI created the Center for Law 

14 and Public Policy which through scholarship legal 

15 expertise provides a voice to the defense bar of 

16 issues, substantive issues, constitutional issues and 

17 the integrity of the civil justice system issues in 

18 civil litigation. I say all that just to put my 

19 comments this afternoon in perspective.

20 DRI, like many of the witnesses you’ve heard 

21 from today, recognize there are a number of issues 

22 with 30(b)(6) depositions and I’m here to talk about 

23 the proposed amendment and why it should not be 

24 adopted. I’ll start with the meet and confer 
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1 requirement. Like a number of attorneys, I 

2 occasionally have meet and confer, talk about various 

3 issues with respect to 30(b)(6) depositions. 

4 Sometimes I do in advance of those depositions let 

5 opposing side know who my witnesses are going to be, 

6 but that’s a very strategic decision. There is 

7 strategic reasons why I do it, there is strategic 

8 reasons that I don’t do it.

9 The problem that I think with the rule as it 

10 is proposed right now, particularly with respect to 

11 the meet and confer portion of it is that when you --

12 that proposal in the contents of also trying to 

13 maintain the notion that is the organization’s choice 

14 for who they choose to put up in the deposition it 

15 creates the illusion that the other side has some say.

16 In the situations where I have not 

17 identified a witness in advance it's largely because I 

18 know in doing so is going to create a problem and in 

19 situations where I have I do it because --

20 JUDGE BATES: What problem?

21 JUDGE JORDAN: Yeah, thank you. What’s the 

22 -- what’s the problem?

23 MR. KELLEY: I’m sorry?

24 JUDGE BATES: What problem would it create?
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1 MR. KELLEY: The problems that I typically 

2 see or the problems that I’ve heard from DRI members 

3 and members in my own firm, and I’ve got a recent 

4 example of this, is when identify a witness in advance 

5 oftentimes you get into the scope of the deposition 

6 shifts from the issues that are really at issue in the 

7 case and turns on sort of personal issues with respect 

8 to that particular witness.

9 JUDGE JORDAN: Can you get specific there? 

10 You say you had a recent example because we’ve heard 

11 this before and I’m having a hard time understanding 

12 exactly what people are getting at. How is it 

13 altering the deposition in a meaningful way?

14 MR. KELLEY: So, I mean these depositions as 

15 you all have noted have -- typically occur sort of in 

16 the middle or towards the end of discovery, so there’s 

17 been a lot of information that’s been passed. You 

18 know, the other side has seen a lot of documents. You 

19 know, they have some sense, or they think they have 

20 some sense of who a corporate representative might be 

21 and when you confirm their understandings typically 

22 you don’t see any problems if I tell you that Jane 

23 Smith is going to be the corporate representative, 

24 that’s who they were thinking about. In my personal 
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1 experience the depositions tend to go relatively 

2 smoothly.

3 There are other issues that pop up. In 

4 situations where it’s not Jane Smith and it’s Tom, 

5 that’s where you run into problems and then what the 

6 deposition becomes is, is why didn’t you, you know, 

7 why Tom and not Jane?

8 And you know a lot of my colleagues who have 

9 stood up here today, when you practice in litigation 

10 like pharmaceutical you are seeing the same people 

11 over and over again, I think there are plenty of 

12 issues but you tend not to see those issues because 

13 they are familiar with the parties and you know I 

14 represent some smaller companies where the other side 

15 are not generally familiar, that’s where the problems 

16 come in. You know, you’ve got to take hours to prep 

17 these folks, you’ve got to dig into their personal 

18 backgrounds in a way that you really ought not to have 

19 to do if they are, in fact, speaking for the company 

20 and not in their individual capacities. 

21 JUDGE ROSENBERG: Couldn’t you object? I 

22 mean, isn’t that a basis to object if the attorney 

23 finds that it’s not within the scope, like anything 

24 else?
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1 MR. KELLEY: Absolutely, but I think 

2 comprehensively the problem that DRI has with the 

3 proposed rule is that it really requires a more 

4 comprehensive framework than what’s laid out in the 

5 proposed rules and we’ve identified some of them in 

6 our written statement. I think in a vacuum meet and 

7 confer sounds good, but if there is no framework to 

8 ultimately deal with a conflict, I don’t think it’s as 

9 effective as the committee would like it to be.

10 JUDGE ROSENBERG: So you don’t object but 

11 you think it’d go further like as it’s written?

12 MR. KELLEY: I’m sorry, I didn’t hear the 

13 question.

14 JUDGE ROSENBERG: You don’t object to what’s 

15 written now, but you just think it should go further?

16 MR. KELLEY: No. I -- oh, I’m sorry the 

17 current --

18 JUDGE ROSENBERG: The proposed rule. 

19 MR. KELLEY: -- the proposed amendment? No, 

20 we think as proposed right now should not go forward 

21 at all. I think -- I think it should -- I mean, quite 

22 frankly, I think you should go back to the drawing 

23 board and create a more comprehensive fix for the 

24 issues that have seemed to address the committee.
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1 JUDGE ERICKSEN: So as you know, 30(b)(6) 

2 hasn’t been touched since it was created and I think 

3 it might be long in that. So, would inserting a meet 

4 and confer requirement, whether there is the identity 

5 of the witness or not, at least be a step in 

6 formalizing, for example, the improvements in 

7 proportionality, in bringing some of the modernization 

8 that has gone on with other rules into the 30(b)(6), 

9 but to do it to start with in a very modest way? I 

10 mean, the rule, it’s just been sitting there 

11 completely on its own untouched since the beginning. 

12 So, could you live with something smaller if you can’t 

13 get right now the whole structure that you’re looking 

14 for?

15 MR. KELLEY: If we’re going to fix it, we 

16 ought to fix it. I mean, I think that the DRI’s 

17 position and I think that’s what we lay out in our 

18 papers.

19 JUDGE BATES: All right. Thank you very 

20 much.

21 MR. KELLEY: Thank you.

22 PROF. MARCUS: I’m sorry.

23 JUDGE BATES: Go ahead. 

24 PROF. MARCUS: Just a request.
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1 MR. KELLEY: Sure.

2 PROF. MARCUS: DRI has been very helpful 

3 over the years. Something occurred to me that might 

4 address that I don’t think the submission we got from 

5 you does, are there any states that presently have a 

6 numerical limit for their analogs the 30(b)(6)? I 

7 don’t remember anyone telling us so, and I’d be 

8 interested to know. I’m not expecting you to know 

9 that off the top of your head.

10 MR. KELLEY: I don’t know it off the top of 

11 my head, but I guarantee you I will get someone to 

12 work on it.

13 JUDGE BATES: Thank you, Mr. Kelley.

14 And now Patrick Regan. 

15 MR. REGAN: Good afternoon. My name is 

16 Patrick Regan. I have a 10-person plaintiffs civil 

17 litigation firm about five minutes from here.

18 In terms of giving the committee a little 

19 bit of background information for any questions they 

20 may want to ask, during my nearly 40 years of practice 

21 I have probably taken over 500 30(b)(6) depositions 

22 under either the federal rules or their virtually 

23 identical state court counterparts. And as I 

24 indicated in my written submissions, in less than 25 
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1 of those cases, so less than five percent of the 

2 cases, has there ever been an issue that has required 

3 the court’s intervention.

4 Reasonable people act reasonably. I think 

5 that’s one of the messages you’ve heard from both the 

6 plaintiff's and defense bar today and that is 

7 reasonable people will work this out. I have never --

8 JUDGE JORDAN: Mr. Regan?

9 MR. REGAN: Yes?

10 JUDGE JORDAN: If that’s true then should we 

11 leave the rule untouched?

12 MR. REGAN: I personally don’t mind putting 

13 into the rule the issue of meet and confer, but I will 

14 tell you like many of the other witnesses, virtually 

15 all of them, I think, I do it in every case.

16 To me, walking into a deposition not knowing 

17 who the witness is going to be, first of all has never 

18 happened. Never. And if it did, it would take me 

19 much longer to get up to speed. If I’m better 

20 prepared I will be more efficient. That’s --

21 efficiency is a word that you heard just a few minutes 

22 ago from one of the prior speakers. So, I’ve never 

23 walked in without knowing who the identity was.

24 JUDGE JORDAN: And has -- how do you answer 
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1 the concern that it shifts the focus away from the 

2 actual discussion points that ought to be the subject 

3 of a 30(b)(6) and allows dipping into personal issues 

4 with the deponent improperly?

5 MR. REGAN: Your Honor, the only thing I can 

6 say in response to that is that is not an issue that I 

7 have had, okay, and I haven’t seen it. Many of my 

8 cases involve multiple corporate entities so there are 

9 -- I’m not the only one taking the 30(b)(6) 

10 depositions. My adversaries are taking similar 

11 depositions of their co-defendants or third party 

12 defendants and I don’t see that as an issue. The --

13 it just hasn’t been an issue.

14 And that brings us to the presumptive 

15 limits. I mean the two things I wanted to talk about 

16 today were the meet and confer, which I always do, 

17 it’s always been my practice in my law firm and the 

18 presumptive limits. The presumptive limits as you 

19 heard, it’s very difficult to legislate for every 

20 case. I don’t do -- all my clients are individuals. 

21 They are one and dones, hopefully it’s the only time 

22 they need a lawyer in their life, so I don’t have 

23 experience with class actions of MDLs, but I can say 

24 that those are a separate category and the judge 
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1 that’s assigned to monitor those cases can very easily 

2 deal with whether they need 125 or 225 or 25 topics in 

3 that, but the run of the mill cases, the run of the 

4 mill cases, some of my cases clearly 10 would be fine 

5 and some 50.

6 So, it’s not -- what will happen is this. 

7 Presumptive limits will inevitably significantly 

8 increase the need for judicial intervention. There’s 

9 a reason that there are so few reported decisions 

10 about discovery disputes over 30(b)(6) depositions. 

11 So the cry about the abuse of 30(b)(6) is not borne 

12 out in the motions practice that Judge Bates and all 

13 of the rest of the courts see. They are not being 

14 litigated because lawyers work those out.

15 JUDGE JORDAN: Well, what we’re hearing is 

16 they are being worked out in the sense that the 

17 defense bar is bearing the burden of it. They don’t 

18 get brought to the court’s attention because the 

19 clients are just being told, in effect, you know, 

20 tough it up because we can’t afford to go to the court 

21 on this, but that there are real abuses in the system. 

22 I understand that, you know, you sound like you are 

23 working with people and behaving the way a good lawyer 

24 ought to, but if it’s accurate what we’re hearing from 
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1 the defense bar, what would be the downside of having 

2 some anchor number in the rule as a starting point for 

3 discussion to make sure things don’t get out of hand 

4 with 150 topic deposition notices?

5 MR. REGAN: Okay. The problem is that we’re 

6 -- I mean, we heard several witnesses say, well, I 

7 don’t know what the number is, it might be 10, it 

8 might be 20. I mean, 10, you know, apparently that 

9 was the number that was decided upon before many of 

10 the witnesses came in here today that 10 was where 

11 they were going to anchor around and hope for that to 

12 be a little bit of an anchor around the number. I 

13 don’t think it’s reasonable on that. I don’t think 

14 that it is needed. There would be a greater motions 

15 practice right now if this were a problem. I really 

16 believe that. And, you know, I just think that when 

17 you start to legislate for the lunatic fringe as 

18 opposed to the 95 percent of lawyers who are 

19 reasonable and cooperate with each other and are 

20 professional and civil, I just think you are going to 

21 create a bigger burden. It will inevitably increase 

22 the need for judicial intervention. 

23 JUDGE ERICKSEN: We tried to get the lunatic 

24 fringe in here, but --
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1 (Laughter.)

2 JUDGE ERICKSEN: You said something that 

3 reminded me of something I can’t put my finger on, but 

4 you talked about when there are multiple parties on a 

5 single side. And I seem to recall that there is an 

6 earlier, like from the 90’s advisory committee note 

7 that says that when there are multiple parties on a 

8 single side they are expected to confer with each 

9 other about who the witness will be. And you said 

10 that you have these multiple party cases and so does 

11 that -- does that happen?

12 MR. REGAN: Your Honor, what I was referring 

13 to is the situation where not only where I’m taking a 

14 30(b)(6) of a defendant in my case, but co-defendants 

15 are also taking 30(b)(6) depositions, and the point I 

16 was trying to make is I don’t see those lawyers 

17 abusing the system with hundreds of topics. So, it’s 

18 not only my practice in taking it, but its also I 

19 haven’t seen it, those snowballs don’t exist in 

20 reality. They just don’t. 

21 JUDGE BATES: Thank you, Mr. Regan. 

22 MR. REGAN: Thank you.

23 JUDGE BATES: We appreciate you coming in.

24 Next we’ll hear from Mike Weston.
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1 MR. WESTON: Good afternoon. I am Mike. I 

2 am a lunatic from Iowa. 

3 (Laughter.)

4 JUDGE BATES: But are you on the fringe?

5 MR. WESTON: Tell me in five minutes.

6 My name is Mike Weston. I’m a lawyer with 

7 the law firm Lederer Weston Craig. We practice 

8 predominately in the state of Iowa. You’ve flown over 

9 us and we’ve waved at you when you did.

10 I’m in my 39th year of practice. I have 

11 probably participated in defending and taking between 

12 60 and 75 30(b)(6) depositions during the course of my 

13 career and our state court rule parrots Rule 30(b)(6). 

14 Almost all of the notice for 30(b)(6) depositions, 

15 even in the cases that I defend which would be product 

16 cases brought because of diversity or insurance bad 

17 faith cases are accompanied by 30 to 100 discrete 

18 topics for the deponent to address and a similar 

19 number of documents requested. I am the past 

20 President of DRI so I adopt and appreciate what Mr. 

21 Kelley said in the papers that they have provided. 

22 I’m the President-elect of LCJ so I appreciate what 

23 Mr. Dahl told you in the papers that we have 

24 presented.
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1 One of the movies that I was struck with 

2 over the years was the great movie When Harry Met 

3 Sally, if you recall Billy Crystal’s character in that 

4 case always read the last page of the novel first in 

5 case he died before he finished the novel. So, in the 

6 interest of time I’m going to skip to the end of the 

7 novel and tell you the five things that I would do 

8 with Rule 30(b)(6) and do it immediately.

9 First, I would set a presumptive limit on 

10 topics. LCJ has suggested 10. I personally don’t 

11 know if that’s the right number, but the bar and the 

12 bench has lived with presumptive limits for years. 

13 Presumptive limits of interrogatories, presumptive 

14 limits in the number of depositions, presumptive time 

15 limits for deposition. It is the rules that do not 

16 have limits that are abused. I know we’re not talking 

17 about Rule 36 today, but there are an unlimited number 

18 of requests be served and it’s not unusual in some of 

19 the more complex cases that I defend to receive 200 or 

20 300 requests for admissions with accompanying 

21 documents. Thousands of documents. The difference 

22 between Rule 36 and Rule 30(b)(6) is that there is a 

23 complete framework for the resolution of disputes that 

24 arise under Rule 36. There are none for Rule 
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1 30(b)(6).

2 And so for a --

3 JUDGE JORDAN: When you say there’s no 

4 framework, what prevents thoughtful counsel who 

5 receives an abusive set of topic designations from 

6 first talking to opposing counsel and barring 

7 satisfactory resolution of it going to the court and 

8 getting a protective order. Why isn’t that 

9 sufficient?

10 MR. WESTON: Because the courts don’t want 

11 to hear it. There’s no record. Courts want to make 

12 discovery rulings and substantive law rulings based on 

13 a record.

14 If I have a 30(b)(6) notice with 100 topics 

15 and a statement in an affidavit to the court that 

16 we've met and conferred and we think in my motion that 

17 these are abusive, the court will say I haven’t heard 

18 anyone testify. I don’t have the time to deal with 

19 all of the issues that may have arisen in other 

20 discovery and that’s why I think so few motions are 

21 brought under the 30(b)(6) because there is no record 

22 for the court. And as an officer of the court, and 

23 also a steward of my client’s resources, I have to 

24 think about the amount of money to spend to fight that 
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1 battle. So --

2 JUDGE JORDAN: So the issue becomes if you 

3 set a presumptive limit who bears the burden of going 

4 to court, right? If you don’t set a presumptive limit 

5 its on the defense. If you do set a presumptive limit 

6 then you have the same issue happening on the 

7 plaintiff’s side, right? Or the requesting side? 

8 MR. WESTON: Consistent with all the other 

9 rules where there are presumptive limits. It is the 

10 person who wants relief who bears the burden. And so 

11 if there were presumptive limits it would be the 

12 burden of the person who wants relief to go to the 

13 court with good cause.

14 JUDGE JORDAN: Right. Precisely. So, why 

15 -- what is it that makes it better, fairer for the 

16 system, not for defendants, but for the system. 

17 Better and fairer for the system to pick a number 

18 which will necessarily be an arbitrary number and say 

19 that is the number and if it’s outside that number the 

20 burden is on the plaintiff, no matter how sensible 

21 their request may be, to bear the expense and cost to 

22 go to court?

23 MR. WESTON: Because it sets an expectation 

24 for the use of that resource as a tool in all cases. 
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1 It is an expectation about how the case will be 

2 discovered and tried is what your role is all about. 

3 And with presumptive limits we know going in that 

4 absent an agreement -- and I work on some complex 

5 cases where we decide, for example, you have an 

6 asbestos practitioner here. When we have asbestos 

7 cases that are in our Iowa federal courts and in our 

8 Iowa state courts we agree to global interrogatories 

9 that number 50, 60, 70 from all the defendants to the 

10 plaintiff. They have a certain number for us. Each 

11 party gets discrete numbers, but it’s all based upon 

12 the framework that the rule starts with a presumptive 

13 limit.

14 JUDGE BOAL: And Mr. Weston I’ve been struck 

15 by yours and other’s testimony that these issues are 

16 not frequently litigated, so maybe I’ve done something 

17 wrong. But as a magistrate judge I do have free 

18 motion practice on this, and perhaps that’s particular 

19 to me, maybe I invite it, but the typical motions that 

20 I see have to do with the particularity of the topics 

21 and the preparedness of the witnesses. So why 

22 wouldn’t the propose rule as drafted help deal with 

23 those issues?

24 MR. WESTON: Well, first of all, the meet 
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1 and confer rule of Rule 30(b)(6) doesn’t lead to any 

2 conduct by the court. It’s not a gateway to motion 

3 practice. It’s not tied to any other rule. It’s a 

4 play nice in the sandbox. Now, we all expect that 

5 that’s what it will lead to, but that’s not in the 

6 Rule. Second of all, I think the court in Iowa has 

7 divided in the two kinds of motions, pre and post 

8 deposition. The deposition with regard to the number 

9 of topics could be brought in advance of the 

10 deposition. It seldom is. I probably think of a 

11 handful of times that I have and it was on the fringe 

12 where it really asked for things that weren’t even at 

13 issue in the case. The vast majority have to do with 

14 preparedness of the witness.

15 One of the things I do in my practice, for 

16 example, is if you, Judge, would send me a 30(b)(6) 

17 and there is 75 topics I will serve on you what looks 

18 like a responsive pleading and I will say to you, 

19 Judge, so you have it in writing to create a record, 

20 here are the 15, 18, 20 or 30 that we have no 

21 objections about but here are the others that we do 

22 and have concerns about. That way my opponent knows 

23 that when we are at the deposition we have problems 

24 with these particular topics. Then after the 
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1 deposition is taken I know that I’m at risk that if a 

2 motion to compel is brought that I might have to 

3 produce the witness again if I’m wrong, but I don’t 

4 think it is sanctionable what I’ve done and the other 

5 side is aware of what I’ve done. Is there another 

6 question?

7 MR. SELLERS: I have a question.

8 MR. WESTON: Yes.

9 MR. SELLERS: You made a reference to Rule 

10 36 admissions but you said there is something in the 

11 Rule that actually, unlike Rule 30(b)(6), seems to 

12 incorporate some dispute resolution mechanism. Am I -

13 - did I misunderstand?

14 MR. WESTON: You misunderstood. It hasn’t 

15 -- well it has an entire framework for how objections 

16 are to be made, what is not objectionable, when 

17 matters can be taken to the court. It has a 30 time 

18 limit.

19 MR. SELLERS: Well, I mean, Rule 30 doesn’t 

20 have any -- with respect to either 30(b)(1) or 

21 30(b)(6) has any rule with respect to that correct?

22 MR. WESTON: Yes. 

23 MR. SELLERS: So I’m wondering if what 

24 you’re thinking about is some kind of very specific 
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1 framework where you have 30 days to make objections, 

2 here’s how you make objections --

3 MR. WESTON: Yes.

4 MR. SELLERS: -- like Rule 36. Are you 

5 proposing the same thing for the other forms of 

6 deposition?

7 MR. WESTON: That’s point two. Well, not 

8 for other forms of deposition but for 30(b)(6) that 

9 there be a specific timeframe for response.

10 MR. SELLERS: And why would you not do it 

11 for the other kind of depositions?

12 MR. WESTON: Because there’s a time limit on 

13 the depositions. The time limit is seven hours. 

14 Provides a limit. And those are fact witnesses, 

15 typically, or it could be mixed facts or expert 

16 witnesses, but there are time limits.

17 MR. SELLERS: Isn’t there a limit on the 

18 duration of the testimony of a witness in 30(b)(6)?

19 MR. WESTON: Yes, typically there is, 

20 however when we do talk about the depositions and we 

21 talk about complying with what are reasonable 

22 requests, oftentimes we have to produce more than 

23 witness. In fact, I can’t think of an instance in the 

24 last five years where I haven’t produced more than one 
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1 witness and therefore the seven hours kind of goes out 

2 the window because it has to. 

3 MR. SELLERS: One last question. And when 

4 you confront multiple witnesses do you ever use a meet 

5 and confer process to discuss how long to allocate 

6 time for witness in a deposition?

7 MR. WESTON: No. That’s not something we 

8 get into. The whole notion of identifying a witness 

9 to me is invasive attorney-client privilege and it’s 

10 something we don’t routinely do in Iowa.

11 JUDGE BATES: Isn’t most of the structure 

12 for resolving issues with respect to that come up 

13 under Rule 36 or Rule 34, Rule 33 deals more with the 

14 sufficiency of the response. Now has there been 

15 sufficient response? We don’t have that in the 

16 deposition setting. You can’t have a structure for 

17 resolving that before the deposition takes place. 

18 MR. WESTON: No, but you can have in place 

19 the kinds of things -- you always have the scope of 

20 discovery issue in any form of discovery under the 

21 rules. 

22 JUDGE BATES: That may be.

23 MR. WESTON: But what is lacking is the 

24 certainty as to the number of topics that need to be 
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1 prepared for and how those relate to the case. Now we 

2 get unlimited amounts that we fight about and argue 

3 about, the breadth. And even in the simplest case we 

4 get 50, 60, 70 topics for the witness to respond to.

5 JUDGE BATES: All right. Thank you very 

6 much.

7 MR. WESTON: Thank you, Judge. Thank you 

8 for your time.

9 JUDGE BATES: Our next witness, Christine 

10 Webber. And this is our last witness before we break 

11 for lunch.

12 MS. WEBBER: Good afternoon, Your Honor, and 

13 I do recognize that I am standing between everybody 

14 and lunch so I’ll try and keep things moving along.

15 My name is Christine Webber. I’m a partner 

16 with Cohen Milstein here in Washington, D.C. Our 

17 practice is nationwide and for over 25 years I’ve been 

18 representing plaintiffs in class collective actions 

19 and employment and civilized matters. And I’m here 

20 today on behalf of the National Employment Lawyers 

21 Association and I’m currently the co-chair of their 

22 Class Action Committee.

23 The issue of 30(b)(6) depositions is near 

24 and dear to my heart because 30(b)(6) depositions are 
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1 generally the most important depositions other than 

2 experts that I will take in my cases. Corporations, 

3 the employers that we sue generally have the vast 

4 majority of evidence in our cases. 

5 JUDGE BATES: For employment cases, 

6 particularly individual employment cases I think we’ve 

7 heard before that the 30(b)(6) deposition often occurs 

8 right at the outset of discovery as opposed to what 

9 we’ve been hearing from other witnesses here today.

10 MS. WEBBER: That is absolutely correct. It 

11 is often the first deposition that we notice. As I 

12 said, corporations have most of the evidence and 

13 30(b)(6) depositions are the most effective tool we 

14 have to get access to that evidence. And so placing

15 unnecessary limitations on our use of Rule 30(b)(6) 

16 will really hamstring individuals in their ability to 

17 prove up their cases.

18 It’s the plaintiffs that have the burden of 

19 proof when it comes to summary judgment, we have the 

20 burden when it comes to getting a class certified and 

21 when the proof that we need is in the hands of 

22 corporations we really need the power of Rule 30(b)(6) 

23 to get that evidence to meet our burdens.

24 JUDGE JORDAN: Is there a number of topics 
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1 generally, a range of topics, that you find you are 

2 typically needing to ask in these class action cases?

3 MS. WEBBER: The number really varies and it 

4 really varies on how you count it. So, for example, I 

5 had one case that became an MDL, there was like eight 

6 locations, test locations and corporate and I would 

7 have said I had 10 to 15 topics that I asked in my 

8 30(b)(6), which was actually fewer than usual, the 

9 defendants would probably tell you I had a hundred 

10 because it was 10 or 15 topics for each of the eight 

11 plant locations and a few additional -- those topics 

12 plus some additional for corporate and they would 

13 count those each separately and tell you there’s this 

14 crazy lawyer in Washington, D.C. who wants to take 100 

15 30(b)(6) depositions. I would say I have only 10 or 

16 12 topics.

17 So, the numbers can, you know, depends on 

18 how you are counting them. If I have fewer topics 

19 they tend to be more broadly defined. If I have a 

20 higher number of topics they tend to get more 

21 specific. I don’t think that that the number is 

22 really the way to achieve a great efficiency. I think 

23 that, you know, the meet and confer process is 

24 helpful. I think meet and confer process that 
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1 includes identification of who that 30(b)(6) designee 

2 is going to be is really important in order to 

3 maximize efficiency.

4 MS. SEITZ: Could I ask you one question. 

5 Could you just follow up a minute? Could you just 

6 talk a little bit about why it's important to you in 

7 the context of the kind of cases you handle --

8 MS. WEBBER: Absolutely.

9 MS. SEITZ: -- to have that information?

10 MS. WEBBER: Absolutely. First off, 

11 although the witness is testifying on behalf of the 

12 corporation and they theoretically should be familiar 

13 with therefore all of the documents the corporation 

14 has produced, I often find witnesses say oh gee I 

15 don’t remember seeing that policy unless I happen to 

16 have the copy that was attached to the email that went 

17 to that witness by name.

18 Now, in my cases I’m usually getting, you 

19 know, dozens of copies of versions of essentially the 

20 same document, I want to bring with me to deposition 

21 those documents that have the name of the witness on 

22 it to make sure that I am best able to refresh their 

23 recollection if they have a lapse in memory. Now, I 

24 heard repeatedly both this morning and reviewing the 
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1 Phoenix testimony defense bar saying that it is the 

2 corporation that’s testifying, it’s not the person and 

3 the personal knowledge of that individual is 

4 irrelevant because they are testifying based on 

5 corporate knowledge, but the knowledge of that person 

6 is one aspect of the corporation’s knowledge. I mean, 

7 I don’t think I’ve ever had a 30(b)(6) designee who 

8 was not an employee of the corporation who is 

9 designating them and who is not generally, you know, 

10 at a management level of that corporation and their 

11 knowledge is corporate knowledge.

12 JUDGE JORDAN: Well isn’t that --

13 MS. WEBBER: So the idea that it’s 

14 irrelevant --

15 JUDGE JORDAN: Well, isn’t that actually 

16 making the case that the defense bar is pressing on us 

17 is that to the extent you start inquiring about their 

18 personal knowledge and that’s not within the, or 

19 that’s on the margins or outside of what they were 

20 expecting in the 30(b)(6) topic that you’ve -- we’ve 

21 created a problem by requiring the identification of a 

22 witness. We haven’t solved one, we’ve created it by 

23 saying this is the person and now you have a whole 

24 bunch of stuff you want to ask that person as opposed 
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1 to confining yourself to the topics that were in the 

2 30(b)(6) notice. 

3 MS. WEBBER: When I talk about their 

4 personal knowledge, I mean their personal knowledge on 

5 the topics which are the subject of the 30(b)(6) 

6 deposition, not on other matters.

7 JUDGE JORDAN: Right. But what I understand 

8 them to be saying, this is what I’m trying to get you 

9 to meet head on. They’re saying as soon as you start 

10 doing that you start -- you may perceive yourself as 

11 being within the 30(b)(6) notice topics, but you start 

12 delving into the personal knowledge and you start 

13 necessarily moving away. I get their argument to be 

14 sort of an undertow argument. What’s wrong with that 

15 concern? Why is that unfounded?

16 MS. WEBBER: I’m going to ask whether I know 

17 the name in advance or not, and I’m saying 90 percent 

18 of the time I’m given the name in advance, but whether 

19 I do or not have that name I’m going to ask that 

20 witness the same questions about their personal 

21 knowledge of the 30(b)(6) topics and whether I know 

22 the name in advance or not, there’s going to be some 

23 questions that defense counsel will think are too far 

24 outside the topic scope and they’ll object as outside 
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1 the scope, and they’ll make their record and 

2 presumably won’t be binding for the company if it was 

3 truly outside the scope. But knowing the name in 

4 advance doesn’t affect how often those issues come up 

5 of whether a question as tended outside the scope.

6 JUDGE BATES: Is this because you feel that 

7 it’s relevant to ask a witness who has testified that 

8 the corporation’s experience and position is X, it’s 

9 relevant to ask the witness whether their personal 

10 experience within the corporation is consistent with 

11 X?

12 MS. WEBBER: Yes. I think that is certainly 

13 one example. Another example I’m thinking of is the 

14 company says we have a policy of posting all 

15 positions, all promotions, so that people could apply. 

16 If the designated witness is in a position in HR or 

17 something else where they might know how often 

18 exceptions have been made to that rule --

19 JUDGE BATES: Right.

20 MS. WEBBER: I absolutely think that I can 

21 say I understand that’s the policy, I want to find 

22 out, you know, when are exceptions to that policy 

23 made.

24 JUDGE BATES: Let --
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1 MS. WEBBER: And that’s, you know, within 

2 the scope of my notes.

3 JUDGE BATES: Let me ask you a question on a 

4 totally different topic. Do you think it would be 

5 advantageous to add to Rules 26(f) and 16(b) 

6 requirements that 30(b)(6) depositions be discussed?

7 MS. WEBBER: I think the meet and confer 

8 belongs with the 30(b)(6) notice itself rather than in 

9 the preliminary rules because I think we can’t have a 

10 very detailed discussion of the 30(b)(6) until we get 

11 a little bit into discovery and we start getting 

12 documents. So I think probably that 26(f) is a little 

13 premature and it would not be a very productive 

14 discussion at that point in time. But often we talk 

15 in very broad terms there and really get into the meat 

16 of it when we’re ready to do a 30(b)(6) notice.

17 And if I might just add one thing?

18 JUDGE BATES: Briefly, please.

19 MS. WEBBER: I appreciate that. As I said, 

20 I have been generally told the identity of the witness 

21 in 30(b)(6) depositions, you know, a week or more in 

22 advance, and never had an issue with that. I have now 

23 heard a lot of cries to take this out of the rule and 

24 then a lot of defense lawyers saying well they don’t 
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1 always share that information. I’m concerned that 

2 having put forward this proposal if the committee then 

3 chooses not to adopt the proposal that all the defense 

4 lawyers who have been so cooperative with me over the 

5 years in sharing that will now take the position, hey, 

6 the committee just told us we don’t have to share that 

7 information with you. So I would suggest if that’s 

8 the path that the committee goes down you would 

9 consider adding the advisory committee notes some 

10 language to the effect that is not the intention of 

11 the committee and that Rule 1 spirit of cooperation is 

12 still applicable.

13 JUDGE BATES: Thank you, Ms. Webber, and 

14 that you for your testimony but you will note that the 

15 proposed rule that is out for consideration actually 

16 doesn’t include a requirement that the identity of the 

17 witness be disclosed in advance. That’s not actually 

18 in the proposal.

19 MS. WEBBER: Well, by meet and confer about 

20 the identity, I had read it that way. Sorry.

21 JUDGE BATES: All right. Thank you. And 

22 thank you all for the very helpful testimony this 

23 morning. We’re going to break for lunch. We will 

24 resume at 1:30 and we have to resume at 1:30 because 
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1 we have people participating by telephone who will be 

2 testifying at that time so enjoy the almost hour we 

3 have before we resume.

4 (Whereupon, at 12:35 p.m., the hearing was 

5 recessed for lunch, to reconvene at 1:30 p.m. later 

6 the same day.)

7 //

8 //

9
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1 A F T E R N O O N S E S S I O N

2 (1:30 p.m.)

3 JUDGE BATES: We're resuming the hearing. 

4 This is our second public hearing on proposed changes 

5 to Rule 30(b)(6) of the Civil Rules, and we're going 

6 to start with a group of witnesses who are 

7 participating by phone. They will not have the green, 

8 yellow, and red light before them, so I may have to 

9 interrupt, and I apologize in advance for that, but I 

10 will be trying to limit the time, as we have with all 

11 witnesses, to five minutes of testimony.

12 We're going to start with Julie Yap. Is she 

13 on the phone?

14 MS. YAP: Yes, I'm here.

15 JUDGE BATES: Ms. Yap, please proceed.

16 MS. YAP: Thank you. My name is Julie Yap. 

17 I'm a partner at Seyfarth Shaw. I'm located in the 

18 Sacramento, California office. And I want to thank 

19 the Committee for their time in looking at this rule 

20 and for hearing the testimony today.

21 Seyfarth Shaw has submitted full comments, 

22 written comments, to the committee, and so I will 

23 focus today's topics on primarily two pieces. And as 

24 some background, I also -- my practice focus is 
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1 primarily on class action and representative action 

2 matters in the employment context, both in civil 

3 rights as well as wage and hour compliance. 

4 And I would echo the opposition to the meet 

5 and confer requirement regarding the identification of 

6 the witness, and I would echo but I don't want to 

7 repeat the comments of the witnesses today, but I do 

8 want to elaborate and provide an example of how, in 

9 some cases, even identification alone does not promote 

10 efficiency at the deposition, but it can actually 

11 create harm and prejudice.

12 For example, it is my practice, particularly 

13 where there are a number of witnesses, in order to 

14 promote efficiency, to provide either -- well, both 

15 the topics that each witness will be testifying to and 

16 the names of those witnesses. A recent example, I 

17 provided those names and the identities two days 

18 before, and in the deposition as it went forward, 

19 instead of focusing purely on the designated topics, 

20 opposing counsel spent hours on topics that were 

21 outside the scope of the designated topics that 

22 related to perhaps personal knowledge of the 

23 witnesses.

24 And while there were objections, obviously, 
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1 made as to the scope, and to create the record that it 

2 was not testimony on behalf of the corporation, it is 

3 difficult to instruct the witness not to answer 

4 without the risk of sanctions or discovery abuse 

5 allegations that would later come before the judge, in 

6 particular as prior testimony and witnesses have said, 

7 there may be a very different view of whether this is 

8 within the scope of the witness.

9 JUDGE BATES: Ms. Yap, Ms. Yap, could I 

10 interrupt with a question?

11 MS. YAP: I'm sorry.

12 JUDGE BATES: It sounds like that's a 

13 situation that you experienced even without any 

14 requirement in the rule to identify the witness, that 

15 you experienced the deposing party going off on these 

16 personal issues, shall we say. So I take it that that 

17 happens occasionally anyway.

18 MS. YAP: It happens where I would identify 

19 the witness, and I think it creates questions of 

20 whether -- again, I would still maintain the practice, 

21 because I want the testimony to be efficient. But if 

22 there are multiple witnesses, I would definitely say 

23 here, there will be a witness for these topics, and 

24 this topic.
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1 But the fact that I disclosed the witnesses 

2 ahead of time meant that there were entire lines of 

3 questions before those witnesses that had nothing to 

4 do with the deposition testimony and appeared to be 

5 clearly prepared based upon the disclosure of the 

6 identity.

7 JUDGE BATES: In most instances, do you face 

8 a problem like that from having disclosed the identity 

9 of the witness?

10 MS. YAP: It will vary. You know, I 

11 generally -- I hope it doesn't. It's like it's a 

12 varying degree. I would say this is a fairly egregious 

13 example of that, but it is a problem with, I think, 

14 mandating disclosure of the witness. 

15 And I think the secondary piece of that is 

16 not only a source of wasted time, but this was a 

17 deposition notice that had, between topics and 

18 subtopics, over 77 topics for the witness, and it took 

19 the company hours and days to prepare for this, and 

20 multiple trips to a neighboring state.

21 And it's not only the waste of the time not 

22 spent on those topics, but also that the witness was 

23 not prepared to testify about the organizational 

24 structure issues, or the other pieces of their 
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1 individual job responsibilities that then they were 

2 then deposed for, you know, one to two hours about 

3 those pieces. And I think that creates a real problem 

4 with respect to your prior questions relating to what 

5 is the harm in potential identification, and I think 

6 that's a real example of that.

7 And I do see the point, and I think the 

8 other point I wanted to make is if we're really trying 

9 to counter the issues relating to preparedness, I 

10 would echo that I think the better way to ensure 

11 preparedness is presumptive limits on topics and time, 

12 because part of the reason where witnesses may not be 

13 prepared is where we get 77 topics, and so a 

14 corporation is trying to prepare on all 77 of those 

15 topics, which sometimes may be very broad, and it 

16 becomes sometimes impossible to do so.

17 If we had targeted, whether it's 10 or 15 or 

18 20, a limited number of topics, it would enable us to 

19 ensure that the witnesses are really prepared on the 

20 targeted issues that they're being expected to testify 

21 about.

22 JUDGE BATES: All right. Anything further, 

23 Ms. Yap?

24 MS. YAP: The rest, I believe, is set forth 
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1 in more detail in our written submission.

2 JUDGE BATES: Fine. Thank you very much. 

3 We appreciate your testimony.

4 We'll hear next, again telephonically, from 

5 Richard Benenson.

6 MR. BENENSON: Thank you, and good 

7 afternoon. My name is Rich Benenson. I appreciate 

8 the opportunity to testify this afternoon in response 

9 to the request for comment on the proposed amendment 

10 to Federal Rule of Civil Procedure 30(b)(6). Let me 

11 take a quick moment to also thank the committee for 

12 its efforts and, in particular, express some 

13 appreciation for the flexibility around the telephonic 

14 testimony, so thank you for that.

15 My testimony today is going to draw on 

16 nearly 25 years of experience, primarily in the class 

17 action defense context, primarily in antitrust and 

18 consumer protection litigation. I'd also include the 

19 year working for a federal magistrate judge, the 

20 Honorable William Connelly at the District of 

21 Maryland, where I did see a fair amount of litigation 

22 over discovery issues. My stint also includes my role 

23 as our department chair where I oversaw about 70 

24 litigation professionals and saw a variety of 
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1 challenges, often around litigation. 

2 Today I'd like to really be efficient with 

3 my time, understanding that a lot of ground has 

4 already been covered. I'll focus on two points, if I 

5 could. First, I will join with some of my defense bar 

6 colleagues in opposing the proposed amendment 

7 mandating to confer about the identity of each person 

8 the organization will designate to testify. 

9 As an initial matter, I think it creates 

10 more problems than it solves, and the detour, I think, 

11 created is likely to generate far more mayhem than it 

12 creates efficiencies. It's pretty well understood, I 

13 think, in practice and in case law that the noticing 

14 party has no right to demand any input from the 

15 opposing party in the responding organization's 

16 process, and the responding organization has the sole 

17 right to choose.

18 I would submit this is one of the few areas 

19 in the 30(b)(6) context where I have not experienced a 

20 lot of dispute. It seems to be working well, or at 

21 least well enough, and not surprisingly, because there 

22 are already some bells and whistles built into the 

23 process, you know, there's a responsibility to 

24 designate folks that have reasonable knowledge, and 
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1 there are ramifications, of course, for the failure to 

2 do so.

3 It was interesting to me that one of the 

4 questions asked by the committee around this process 

5 is, you know, when does this topic come up, and I 

6 think it's worth observing that, in my experience, the 

7 topic comes up really in only two contexts. One I 

8 think is very productive and efficient, and the other 

9 not so much.

10 So in my practice, where it comes up often 

11 is where there's an overlap between the fact witness 

12 and a corporate representative, and my practice and my 

13 experience is that those conversations are productive, 

14 and they're happening organically under the current 

15 rules, and there's a lot of good and efficiency 

16 associated with those conversations.

17 Conversely, and this is a small minority of 

18 times, it comes up for more nefarious reasons 

19 associated with seeking "Apex" depositions or for 

20 harassment purposes. And my concern with the rule is 

21 that it will do nothing to facilitate further 

22 conversation around efficiencies and overlap, because 

23 I think those are naturally occurring already, and 

24 will do a lot to facilitate the more problematic 
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1 conversations designed to harass particular 

2 individuals or management or leadership folks, and to 

3 land at a specific result in terms of who is going to 

4 be designated.

5 So the rule is pretty clear as it works now. 

6 My take on the proposed amendments is there's no 

7 change intended for that, so this mandate about 

8 conferring on identity does seem to me to be a detour 

9 that is unwarranted and likely to create more harm 

10 than good.

11 JUDGE BATES: And do you have the same --

12 MR. BENENSON: Yes, sir.

13 JUDGE BATES: Do you have the same view with 

14 respect to --

15 MR. BENENSON: Go ahead, I apologize.

16 JUDGE BATES: I know it's difficult when 

17 we're dealing telephonically, but do you have the same 

18 view with respect to any requirement to disclose the 

19 identity a few days before the deposition occurs?

20 MR. BENENSON: I do have concerns about that 

21 advance disclosure requirement. Again, it happens 

22 often in practice, and often when it does happen in 

23 practice, it's designed to create some efficiencies. 

24 But like other practitioners before me today, you 
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1 know, I've had several, many, lots of corporate 

2 representatives, you know, subject to this barrage of 

3 personal fact testimony and questions as a result of 

4 that advance disclosure.

5 And to be more granular about it, what 

6 happens is the moment you disclose that, whoever the 

7 representative is going to be, you know, opposing 

8 counsel will work the database and find all the email 

9 with that person, and typically will ask about that in 

10 a fact witness capacity, regardless of whether it 

11 relates to or was within the scope of reasonable 

12 topics designated for that corporate representative.

13 And this tension and this abuse, in my 

14 perspective, creates far more challenges than it 

15 solves and often leads to myriad challenges down the 

16 road regarding the scope of testimony that's binding 

17 to the corporation, whether this person needs to 

18 reappear as a fact witness later on at another time.

19 I notice I'm about at my time. I don't see 

20 the red light, but --

21 (Laughter.)

22 JUDGE BATES: But you foresaw it very 

23 accurately. It is on. I'll give you the chance to 

24 make one last comment.
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1 MR. BENENSON: One last comment. We see 

2 plenty of other problematic areas associated with the 

3 rule that I think could and should be addressed, and 

4 in particular, I would echo some of the prior comments 

5 about a clear procedure for objecting to notice, 

6 establishing scope, a process that's designed to be 

7 like Rule 34, like Rule 26, like Rule 45. In my 

8 opinion, more insight, more guidance on process and 

9 scope would lead to more meaningful meet and confers 

10 and more meaningful discovery motions, if that was 

11 warranted and necessary.

12 Finally, I'd just like to say thank you 

13 again for the opportunity to do this and for the 

14 committee's efforts on what I consider to be an 

15 important topic.

16 JUDGE BATES: Thank you, Mr. Benenson. 

17 Thank you for your testimony.

18 We'll turn next to Chad Lieberman, who's 

19 also on the phone. Mr. Lieberman?

20 MR. LIEBERMAN: Yes. Good afternoon. I 

21 want to thank you all for this opportunity to speak 

22 with you and especially telephonically. I appreciate 

23 the convenience of that as well. 

24 My background is not necessarily as in-depth 
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1 as others. I've been an attorney for the last 13 

2 years. My practice involves all sorts of litigation 

3 and trial work on behalf of both plaintiffs and 

4 defendants. Currently my practice is primarily 

5 defense oriented, and my caseload extends through the 

6 country, with a client base that gets into Japan, 

7 Canada, and Europe as well. I have had significant 

8 experience with respect to 30(b)(6) depositions, both 

9 presenting witnesses as well as taking those 

10 depositions.

11 And so first I want to start off by saying I 

12 do support the inclusion of a mandatory conferral as 

13 proposed in the rule change, and in my professional 

14 experience, conferral always occurs, and lawyers 

15 regularly confer about the scope and timing of 

16 30(b)(6) witnesses, and so I can tell you all my prior 

17 conferrals have been iterative in nature, and more 

18 often than not, they do resolve the parties' disputes. 

19 But there are times when they don't, and most of the 

20 time it has to do with the scope of the 30(b)(6) 

21 deposition.

22 And when I talk about scope, I'm talking 

23 about both the quantitative as well as the qualitative 

24 nature of the deposition, meaning both the number of 
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1 topics as well as the subjective nature of the topics 

2 themselves. And so while the proposed amendment does 

3 require a conferral, which is a good step, I don't 

4 actually think that's far enough. I do believe that 

5 you need a presumptive limit on both the number of 

6 topics as well as just the overall scope for a 

7 30(b)(6) deposition.

8 While Rule 30(b)(6) already requires that 

9 the topics be identified with, quote, "reasonable 

10 particularity," a presumptive limit of perhaps 15 

11 topics would require the requesting party to narrow 

12 the scope of the deposition to the issues which are 

13 truly relevant in each individual case.

14 And I've heard the testimony before. I've 

15 reviewed the testimony from the prior hearing, I 

16 believe in Arizona, and I can say overly broad 

17 requests are always going to occur, but I believe that 

18 a limitation will actually help focus the parties to 

19 narrow the issues, thus lessening expenses, 

20 streamlining disagreements, and facilitating a faster 

21 resolution.

22 And like other rules that we find within the 

23 code, this rule could be -- this rule and presumptive 

24 limit could be modified through stipulation or court 
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1 order, such as under Rule 33. 

2 JUDGE BATES: Excuse me.

3 MR. LIEBERMAN: Flowing therein --

4 JUDGE BATES: Can I ask a question?

5 MR. LIEBERMAN: Oh, yes, sir.

6 JUDGE BATES: Excuse me. On what basis do 

7 you pick 15?

8 MR. LIEBERMAN: Fifteen, to me -- in my 

9 experience, 15 topics has been relatively consistent 

10 in terms of the number of actual topics needed to 

11 facilitate a 30(b)(6) deposition. I am both 

12 accustomed to getting 30(b)(6) notices that extend

13 well beyond 15 and those well under 15. However, in 

14 my professional judgment, I would estimate that 15 

15 specific topics can be accomplished to get what you 

16 need in a given case.

17 Granted, in some larger class action cases, 

18 I would assume that there's other topics that may need 

19 to go beyond that, and in that sense that's why I 

20 believe a simple presumptive limit set at 15 would 

21 enable the parties to either go above or beyond it 

22 based upon a stipulation.

23 JUDGE BATES: Please go ahead.

24 MR. LIEBERMAN: Thank you. Beyond that, I 
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1 would say that a conferral itself doesn't always 

2 resolve the issues, and there currently exists no 

3 uniform framework for the notice, objection, and 

4 resolution of issues related to the proposed scope of 

5 a 30(b)(6) deposition, and I can tell you, lawyers and 

6 clients crave this framework. I hear very often that 

7 judges hate discovery disputes, but I can assure you 

8 that lawyers do as well, and I don't believe that Rule 

9 37 adequately addresses the issues that come up during 

10 this initial process, for two reasons.

11 First, Rule 37 is tailored to issues 

12 concerning discovery disputes of disclosure 

13 requirements, and more specifically, they have to do 

14 with violations that occurred in the past, meaning 

15 that there is a complaint regarding the adequacy of 

16 the disclosure or response, whereas a Rule 30(b)(6) 

17 notice requires the deposition to occur in the future, 

18 which is why most lawyers have utilized protective 

19 orders for most of those issues.

20 However, protective orders themselves are 

21 somewhat incomplete as a process for us to address 

22 these issues, because we don't actually have a 

23 presumptive limit in which to form a base argument. 

24 So much of the protective order argument, in my 
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1 experience, has been actually about defining what a 

2 30(b)(6) deposition even is --

3 PROF. MARCUS: Mr. --

4 MR. LIEBERMAN: -- in any given case.

5 PROF. MARCUS: Mr. Lieberman, question. Am 

6 I right to understand that you would interpret a 

7 numerical limit in the rule as being the basis for an 

8 argument to the judge that there should be a 

9 protective order because the other side has exceeded 

10 that limit and that's the function of having a 

11 numerical limit?

12 MR. LIEBERMAN: That is a function, yes. 

13 Yes, I do believe that is a function, as it is with 

14 other similar presumptive limits codified in the rule 

15 itself. Obviously, in any given case, you'd have good 

16 faith bases or even just general agreements between 

17 counsel in terms of extending those limits, and 

18 there's always reasons to do so. But without a 

19 baseline, I feel that there are difficulties in 

20 actually presenting these issues to the courts, thus 

21 resulting in a wide range of views and court orders on 

22 the subject.

23 PROF. MARCUS: So it's all -- but just to 

24 follow up and be clear, so your view is if the rule 
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1 included a number like 15, that would be a direction 

2 to judges to grant a motion whenever someone has gone 

3 beyond 15, unless there's some kind of special 

4 justification, right?

5 MR. LIEBERMAN: My only hedge is on the word 

6 "direct." I would say it would provide guidance as a 

7 presumptive limit, that without good cause or other 

8 reason for the number to be extended, it would provide 

9 the judge at least a baseline in which to establish 

10 what was and what was not appropriate in a given case.

11 JUDGE BATES: Mr. Lieberman, the red light 

12 is on. If you have a final comment, we'll hear it.

13 MR. LIEBERMAN: My final comment is simply I 

14 do echo the testimony of others who have testified 

15 today regarding the nature of a conferral about the 

16 identity of the witness. I do believe that should be 

17 the unilateral right of the responding party.

18 JUDGE BATES: Thank you very much, Mr. 

19 Lieberman.

20 MR. LIEBERMAN: Greatly appreciate it. 

21 Thank you.

22 JUDGE BATES: You're welcome.

23 The next witness, Michael Nelson, hopefully 

24 is on the phone as well. Mr. Nelson?
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1 MR. NELSON: Yes, thank you. Yes, my name 

2 is Michael Nelson, and I had already submitted written 

3 commentary along with my partner, Thomas Byrne, so I'm 

4 going to not repeat that, but actually I do want to go 

5 right to a point Mr. Lieberman just made. I can't 

6 imagine 15 topics in a 30(b)(6) notice in most cases 

7 is necessary or manageable, especially given the 

8 seven-hour time limitation. Put that aside, though. 

9 But I think that seems like part of the problem of 

10 what some of these 30(b)(6) notice depositions turn 

11 into.

12 Going to the proposed rule change, first 

13 off, it says "must confer in good faith." I want to 

14 suggest to you that every one of these rules requires 

15 good faith, so I'm not sure we need that phrase "good 

16 faith" in there. But then we're -- I think everybody, 

17 of course, is focusing in on -- is this concept of the 

18 identity. It doesn't -- the rule, the proposed rule, 

19 doesn't say what we are to do besides identify, and we 

20 can certainly imagine if it was being conferred upon 

21 by the parties, it would be more than just John Doe 

22 and Jane Doe. It would be who is this person, what do 

23 they know, what areas are they going to testify about, 

24 and you begin the deposition in the middle of the meet 
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1 and confer process.

2 I do agree with the comments that have been 

3 made earlier that most times, meet and confers are 

4 done in these situations anyway. But we don't really 

5 need it in a rule, and I would think any time that one 

6 party feels a need to meet and confer, they usually 

7 will notify the other side to do that, and then a 

8 conversation takes place, and perhaps a meeting.

9 So as we look at Rule 30, I think there's a 

10 need for a lot of other fixing, and these changes seem 

11 to be superfluous and unnecessary and could create a 

12 lot of confusion and a lot of cause for you did not 

13 identify the right person, or maybe you identified 

14 somebody first and now you've identified someone else, 

15 and getting into those tennis matches of litigation 

16 issues.

17 I would tell you that when I prepare 

18 witnesses in 30(b)(6) scenarios, quite frequently you 

19 think you have the right person, especially when you 

20 get into really complicated technical issues such as 

21 legacy systems and where data's archived, and as you 

22 start to work with this person, all of a sudden it 

23 becomes apparent that you need to talk with someone 

24 else, and that other person ends up being the better 
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1 person to submit to the testimony on behalf of the 

2 corporation.

3 So I think this identity part is generally 

4 done anyway. It doesn't need to be in a rule and 

5 could lead to a lot of confusion and, sometimes will 

6 happen, I suspect, a lot of acrimony.

7 JUDGE BATES: All right. Anything further, 

8 Mr. Nelson?

9 MR. NELSON: Those were my comments. I 

10 would encourage the Committee to keep doing its fine 

11 work as it's done in the past, and congratulate you on 

12 the work you've done so far. Good luck.

13 JUDGE BATES: Well, thank you very much, Mr. 

14 Nelson, and thank you for your testimony. We 

15 appreciate it.

16 Next, another Michael, Michael Neff. Are 

17 you on the phone?

18 MR. NEFF: Yes, sir.

19 JUDGE BATES: Mr. Neff, please.

20 MR. NEFF: Thank you. Yes, my name is 

21 Michael Neff. I'm an attorney in Atlanta, Georgia. I 

22 am a shareholder in a four-lawyer plaintiffs' firm. 

23 All we do is plaintiffs' cases. We do not do class 

24 action cases, but we do do significant litigation, 
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1 catastrophic injury and death, in topics like premises 

2 liability, negligent security cases, things along 

3 those lines.

4 And let me speak as a small business owner. 

5 We have four lawyers and numerous administrative 

6 people, and nobody cares more about the efficiency of 

7 this process than a small business owner that is 

8 fronting expenses, and paying overhead, and waiting 

9 years, typically, for resolution of cases.

10 For significant litigation that goes into 

11 six, seven, and eight figures in terms of what damages 

12 are, we're frequently waiting three, five, and last 

13 year I resolved a case that took 10 years. So no one 

14 wants the efficiency more than the plaintiffs' counsel 

15 that is representing real people, because every dollar 

16 we front is something that we frequently wait years if 

17 we ever get to recover them.

18 Within the context of 30(b)(6), the 

19 identification of the witnesses in advance of the 

20 deposition is crucial for the efficiency of the 

21 process. I recall Ms. Yap from Seyfarth Shaw talking 

22 about how it is not helpful to identify in advance 

23 because it creates diversions. To the contrary, 

24 respectfully, identifying witnesses in advance allows 
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1 us to be more prepared and allows us to save time, 

2 because the rules allow for not only a 30(b)(6) 

3 deposition but also an individual deposition.

4 The most inefficient process would be to 

5 identify the witness when you walk into the conference 

6 room and then waste time trying to figure out what the 

7 individual background and experience is of that 

8 corporate designee, and then later come back on 

9 another day to take that individual's individual 

10 deposition, wasting court reporter time, wasting 

11 travel time, and wasting attorney time.

12 JUDGE ERICKSEN: Mr. --

13 MR. NEFF: Much more efficient --

14 JUDGE ERICKSEN: Mr. Neff?

15 MR. NEFF: -- is to give --

16 JUDGE ERICKSEN: Mr. Neff? Right.

17 MR. NEFF: Yes, ma'am.

18 JUDGE ERICKSEN: How much in advance of the 

19 deposition would you have to have the identity of the 

20 witness in order to take a joint deposition as you're 

21 discussing? If, you know --

22 MR. NEFF: Well, it depends. I don't think 

23 there's a one rule satisfies all. It depends on 

24 what's going on for the plaintiff's lawyer. I would 
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1 say 10 days to two weeks should be a good period of 

2 time to allow the plaintiff's lawyer to do some 

3 research. One of the other lawyers talked about 

4 checking out individual documents in a database, which 

5 does occur.

6 It can help the plaintiff's lawyer be 

7 prepared in the event that the 30(b)(6) designee is a 

8 recipient of email or other key documents that can 

9 refresh recollections, that can impeach positions. So 

10 having the opportunity to get that background 

11 information done first does streamline and make more 

12 efficient the process, so much so that sometimes you

13 can get a case done in one 30(b)(6) deposition.

14 JUDGE BATES: Please continue.

15 MR. NEFF: All right. Thank you. So let's 

16 see. I don't think that there should be a limitation 

17 on the number of topics. Topics can frequently be 

18 worked out or depositions be limited to a certain 

19 number of topics per deponent.

20 I'm taking a deposition in two weeks related 

21 to the I.T. knowledge and electronic document 

22 knowledge of an organization based on making sure that 

23 we have all other similar instances, and one of the 

24 problems with limiting the number of topics as a 
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1 plaintiffs' counsel, I don't know the defense 

2 organization, and if I use the wrong term, then I 

3 frequently come up empty and have to change the terms, 

4 as I'm learning in depositions, to get the right 

5 information.

6 Frequently, unfortunately, word games get 

7 played in responding to written discovery and in 

8 responding to oral questions, and it takes some 

9 process of elimination and learning of a foreign 

10 corporation to understand how they keep information, 

11 where they keep information, and who has the 

12 information.

13 PROF. MARCUS: Can you explain --

14 MR. NEFF: Thus this process --

15 PROF. MARCUS: Excuse me.

16 MR. NEFF: -- sometimes requires some 

17 flexibility and some time in order to get to the right 

18 people and ask the right questions. But the process 

19 as it is currently written does work in significant 

20 litigation. It is effective. And frankly, I feel 

21 from a tactical position some of the defense counsel 

22 recognize how effective it has been for the plaintiffs 

23 and want to change it in part to help protect their 

24 clients.
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1 And while advocacy is something that we can 

2 all appreciate, it should not get in the way of 

3 justice, especially efficient justice under Federal 

4 Rule number one. I would recommend the committee

5 please keep the rule as it is. I've been using it for 

6 nearly the 25 years that I've been practicing, and it 

7 is the most important tool procedurally in the 

8 plaintiff lawyer arsenal in order to get justice in 

9 significant cases involving corporate defendants.

10 PROF. MARCUS: So you are opposing this 

11 amendment.

12 MR. NEFF: I do not want required 

13 conferrals, because in good faith we will frequently 

14 have it, and a lot of lawyers will create waste, 

15 frankly, with that. I don't want to have any changes 

16 that limit the number of topics or the number of 

17 depositions that can get taken. As the rule is 

18 currently constructed, it is working for plaintiffs' 

19 lawyers.

20 JUDGE BATES: All right. Thank you very 

21 much, Mr. Neff. We appreciate your testimony.

22 MR. NEFF: Thank you very much.

23 JUDGE BATES: We'll hear next from Thomas 

24 Regan, who is on the phone. Mr. Regan?
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1 MR. REGAN: Yes, thank you. I am the newly 

2 listed, as of last week, litigation department leader 

3 at LeClairRyan, an Am Law 200 firm. The litigation 

4 practice here runs the gamut from high-value 

5 litigation and mass tort and class action litigation 

6 in commercial tort context, to more run-of-the-mill 

7 matters, and I have drawn the information that was in 

8 my written comment and for my comments today from my 

9 colleagues here at the firm.

10 Many of those that the committee has heard 

11 from today and back in January in Arizona deal with 

12 class and mass actions involving hundreds or thousands 

13 of plaintiffs, experienced practitioners on both 

14 sides, and often significant intelligence on the part 

15 of the noticing party regarding the various potential 

16 witnesses who could be presented.

17 While we handle those actions at this firm, 

18 we also handle the more run-of-the-mill matters, as I 

19 said, that typically involve one or two plaintiffs, 

20 where the noticing counsel sometimes has experience in 

21 federal court and sometimes does not. I would like to 

22 focus my comments on those matters, because my 

23 experience and that of my partners is similar to what 

24 you have heard when we are dealing with counsel of the 
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1 caliber that you have heard from.

2 Less experienced and more difficult 

3 practitioners are not the outliers that has been the 

4 experience of Pat Regan and some of the other lawyers 

5 -- no relation, by the way -- and some of the others 

6 who testified this morning. Indeed, the joke was made 

7 that the lunatic fringe was invited but nobody showed 

8 up, which illustrates a point.

9 For every one of our testifying attorneys 

10 today, regardless of which side of the V they normally 

11 occupy, there are multiple of that number for whom 

12 federal practice is not the norm, and for some, they 

13 only find themselves in federal court when their cases 

14 are removed.

15 With those practitioners that are less 

16 active in federal court, where the attorney is 

17 unfamiliar with the company representatives who might 

18 be produced, it's our view that the identity of the 

19 witness invites little more than an investigation into 

20 the witness personally and professionally and the 

21 questions that might follow on, which are largely 

22 irrelevant to the 30(b)(6) proceeding.

23 My colleagues and I have encountered 

24 questions regarding the personal life of the witness, 
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1 the house that the witness lives in, complete with 

2 pictures, what kinds of cars they drive, and even an 

3 inquiry into a DWI arrest years prior to the 

4 deposition.

5 JUDGE JORDAN: Mr. Regan?

6 MR. REGAN: While all of these -- I'm sorry.

7 JUDGE JORDAN: Mr. Regan, can I interrupt 

8 you and get a question in here? When that happened, 

9 did you object?

10 MR. REGAN: Absolutely. All of those were 

11 objectionable.

12 JUDGE JORDAN: And did you --

13 MR. REGAN: And none of them were answered, 

14 as far as I know.

15 JUDGE JORDAN: Then what is --

16 MR. REGAN: But it drives home --

17 JUDGE JORDAN: What's the problem if you've 

18 got the capacity to do that? If the downside risk is 

19 people get out of hand, and you can object and you can 

20 stop the getting out of hand, but there's an upside 

21 potential in having witness identification, because it 

22 may lead to certain efficiencies with structuring 

23 combined 30(b)(6) and 30(b)(1) deposition, why not 

24 allow some witness identification a few days in 
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1 advance?

2 MR. REGAN: Well, I think the response to 

3 that is that the efficiencies that you're pointing to 

4 are largely, again, only dealing with counsel of the 

5 caliber of the people who are testifying here today. 

6 It is those counsel who are intending to use the 

7 30(b)(6) witness for what it is, which is to be the 

8 voice of a legal person that does not have a voice of 

9 its own and to find out what the corporation knows and 

10 what the corporation's position is.

11 That is my experience when dealing with very 

12 experienced attorneys, whether experienced in federal 

13 court or not, and when dealing with the better 

14 attorneys that occupy the plaintiffs' bar. That has 

15 not been my experience, and it has not been the 

16 experience of my colleagues, when it comes to the less 

17 experienced practitioners who are the ones who are not 

18 of that same caliber.

19 PROF. MARCUS: A question, and I gather also 

20 that you think a rule that tells those less 

21 experienced lawyers they must confer would be harmful?

22 MR. REGAN: No, I don't have a problem with 

23 the meet and confer issue. As a matter of fact, we 

24 do, most of us -- as a matter of fact, all of my 
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1 colleagues that I spoke to do conduct a meet and 

2 confer with regard to 30(b)(6). Several of my 

3 colleagues and I myself do not typically give the 

4 identity of the witness in that meet and confer, and 

5 when pressed on the issue would normally fall back on 

6 the premise that the 30(b)(6) notice is to give a 

7 human voice to the corporation, so it really doesn't 

8 matter who the witness is. 

9 My caveat to that is when the notice 

10 requires multiple witnesses that will be required to 

11 respond, I have indicated to my adversary that there 

12 will be multiple witnesses, and I have broken out the 

13 topics that each is presented to discuss, without 

14 divulging the name, because it was not required. 

15 JUDGE BATES: Other questions for Mr. Regan?

16 (No response.)

17 JUDGE BATES: Thank you very much, Mr. 

18 Regan. We appreciate your testimony.

19 MR. REGAN: Thank you very much to the 

20 committee.

21 JUDGE BATES: Next up, Jonathan Redgrave, 

22 also on the telephone. Mr. Redgrave?

23 MR. REDGRAVE: Good afternoon, everyone, and 

24 I appreciate the opportunity to appear and provide 
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1 some brief comments on the rule. I've been involved 

2 in civil litigation of all varieties and shapes for 

3 about the past 28 years. In looking at this issue, I 

4 think the advisory committee properly noted two main 

5 drivers for the formulation that has been put forth in 

6 the rule, and that's, first, that there are four 

7 subjugated to overbroad requests that get crossed off

8 in 30(b)(6) notices, and on the other side there are 

9 inadequately prepared witnesses, and both of these are 

10 problems as to which I have encountered in my practice 

11 over the years.

12 As far as the rule itself, the rule does 

13 come out of the gate with a laudable notion in terms 

14 of the amendment of conferral, and I don't think that 

15 anyone is really arguing that in best practices, 

16 conferral on the subjects, on the issues that want to 

17 be raised at the 30(b)(6), I mean, what you want the 

18 witness to speak to, is a good thing to try and avoid 

19 any controversy and to have witnesses that are well 

20 prepared.

21 But unfortunately, when you have a conferral 

22 in the rule and then there's no solution to that when 

23 there is a dispute, I think that's the problem in what 

24 we've seen. And my experience has been that if you 
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1 don't have an opportunity to have some sort of 

2 judicial involvement to resolve it short of a motion 

3 to quash, you're faced with a very difficult issue 

4 about whether you're going to actually make that 

5 motion, as opposed to a different motion to limit or 

6 qualify what the testimony is going to be. And I 

7 think the rule could go further and should go further.

8 Now, with that, I will say that the issue of 

9 the identification of the witness in the current 

10 formulation is going after the wrong problem, or maybe 

11 it's the wrong solution to the problem that's been 

12 identified. Adequacy of the witness is not going to 

13 be changed by who the person is. They're either 

14 adequately prepared or they're not.

15 And I think some of the people have noted 

16 that they want pre-notification of who the witness is 

17 so they can be efficient. That's a different issue 

18 altogether than the one I understood to be the driver, 

19 and that is can the witness be -- was the witness 

20 adequately prepared.

21 Another comment I have is that the rule, I 

22 think, could go further in terms of fleshing out some 

23 of the problems that others over the last two years 

24 have noted in terms of some the problems presented by 
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1 Rule 30(b)(6) depositions on ancient documents or old 

2 issues where documents might be more remiss and from a 

3 best practices perspective in cases where it's worked 

4 very well with people on both sides, we've come up 

5 with creative solutions like a writing in lieu of a 

6 witness, or what we call a "WILOW," and that actually 

7 works well because the other side -- they say they 

8 need some testimony from the company or something that 

9 they could use in the case, and the company, rather 

10 than trying to find a witness and try to prepare a 

11 witness on something that no one really has knowledge 

12 of, they can do it in a much more efficient way that 

13 serves the purpose and allows the case to proceed.

14 PROF. MARCUS: Could it -- could that --

15 MR. REDGRAVE: So I think if the rule --

16 PROF. MARCUS: Jonathan?

17 MR. REDGRAVE: -- could be reformulated to -

18 - I'm sorry.

19 PROF. MARCUS: Jonathan, Rick Marcus here. 

20 Thank you again for your comments.

21 MR. REDGRAVE: Hi, Rick.

22 PROF. MARCUS: Could the sort of thing you 

23 just described be a result of the conference that this 

24 rule mandates? And that's part one. Part two is if 
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1 judicial oversight would be a good thing, does that 

2 mean that requiring a conference is a bad thing?

3 MR. REDGRAVE: No, a conference is a good 

4 thing, and I don't want you to take anything away from 

5 what I'm saying to say a conference is not a good 

6 thing, at least as to the topic and the subject of 

7 what you're going to, because that addresses the 

8 adequacy as well as the scope issue, was the issue 

9 properly framed in the 30(b)(6).

10 My caveat to this is I do not think we 

11 should be conferring about the, quote, "identity" of 

12 the witness. If you're really talking about somebody 

13 who can speak to some sort of subject, well, that's 

14 been covered in the topic question. Saying it's Bob 

15 or Sally or something like that gets into a whole 

16 collateral issue. 

17 So I think the issue about whether there's 

18 judicial involvement and having a better objection 

19 process, a better resolution process for the Court to 

20 be involved in I think is a different thing that I 

21 think the rule could and should address in a different 

22 formulation.

23 But I think in terms of a conferral, I'm not 

24 opposed to it. I think best practices really teaches 
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1 people that conferral can get to these solutions,

2 that's including the creative line (phonetic), that 

3 we've used.

4 JUDGE BATES: Mr. Redgrave, in your 

5 experience, is the identity of the witness who will 

6 testify usually disclosed some reasonable period in 

7 advance?

8 MR. REDGRAVE: It's a mixed bag, I'll say. 

9 I know in state courts, there are some courts who 

10 specifically say a reasonable time before the 

11 deposition you need to disclose. Some of our larger 

12 cases have been piped into the case management orders, 

13 and some of them, people just show up. And again, 

14 I've been on both sides of this.

15 The disclosure of the identity for 

16 efficiency, you know, for someone to prepare, that's 

17 one thing. I think -- so my experience is -- I'll 

18 also add this to the experience, because this is 

19 important. When we've been looking at preparing 

20 depositions, I've found out, you know, getting into a 

21 month of prep with someone, they really can't carry 

22 the water, so to speak, on all the issues, and I need 

23 to find someone else, or I've had a witness that, 

24 quite frankly, when they got through the prep, they 
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1 went to their doctor and they really couldn't do it. 

2 It was too stressful for them and so I had to find 

3 someone else.

4 If I had conferred -- and it gets into all 

5 these issues that I think are collateral to the main 

6 point, did the company put up an adequately prepared 

7 the witness. Will they meet their legal duty under 

8 the rule to put up someone? And really, the issue on 

9 the conferral should be what are the subjects, what 

10 are the issues that need to be spoken to, are they 

11 adequately explained, are they appropriate, are they 

12 relevant, all the -- are they proportional, all the 

13 proper Rule 26 factors that feed into this.

14 PROF. MARCUS: Well, I think you mentioned 

15 that in some places, maybe some state courts, advance 

16 identification is required. Has that produced results 

17 in the places where it's required?

18 MR. REDGRAVE: As far as I understand, in 

19 those experiences, they produced the result -- if you 

20 have disclosed the name, and the other side, if they 

21 wanted to take a personal deposition -- one, they've 

22 been able to do that, or at least they've been able to 

23 find any other information about the witness they 

24 thought that was appropriate.
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1 Again, it didn't need to -- objections is 

2 kind of difficult in a fact deposition, but when 

3 you're going on and on about collateral issues, I 

4 think a party that's deposing a witness is doing that 

5 at the risk of annoying the judge, and they're also 

6 burning their time.

7 JUDGE BATES: Mr. Redgrave, we need to --

8 MR. REDGRAVE: Now, as far as disclosure of 

9 a name -- but again, I think that's very different 

10 than meeting and conferring in advance, trying to get 

11 into some sort of encyclopedic knowledge of all the 

12 employees at the company about who's the best person 

13 and why, and since the advisory committee note 

14 actually says, in its current formulation, that 

15 ultimately goes to the producing party, then it 

16 doesn't really make much sense to be conferring about 

17 identity if you're really responsible. And again, 

18 that's different from what you are actually going to 

19 point out in terms of a disclosure type rule.

20 JUDGE BATES: Mr. Redgrave, we need to thank 

21 you very much for your testimony and move on to the 

22 next witness, and I thank you.

23 MR. REDGRAVE: Thank you very much. I 

24 appreciate the opportunity.
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1 JUDGE BATES: We'll return now to witnesses 

2 who are here, and the first witness will be Hassan 

3 Zavareei.

4 MR. ZAVAREEI: Good afternoon. I am Hassan 

5 Zavareei. I was a defense attorney at Gibson Dunn & 

6 Crutcher for seven years before I started my own law 

7 firm, where I've been practicing for the past 16 

8 years. We have an office in Oakland, California and 

9 an office here in Washington, D.C. We do 

10 predominantly qui tam work and class action 

11 litigation, and I have had an opportunity on both 

12 sides of the "v" to both take and defend 30(b)(6) 

13 depositions in state and federal courts all across the 

14 country.

15 I appreciate your work with respect to Rule 

16 30(b)(6), and I think that some of the changes that 

17 you are working on are potentially advantageous. I 

18 think that the perspective that I have starting off as 

19 a defense attorney really helped inform my work as a 

20 plaintiffs' attorney and I think has been, in large 

21 part, the key to a lot of the successes that I and my 

22 firm have achieved on the plaintiffs' side.

23 In particular, you know, as we all know, 

24 litigation is an adversarial process. We are tasked 
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1 with working zealously to represent our clients and to 

2 do everything we can to win our positions. And with 

3 respect to discovery in particular, when you're on the 

4 defense side, if there is bad evidence, if there's 

5 evidence that harms your position, it is your job to 

6 do everything you can within the rules and within the 

7 bounds of ethics to keep that information from the 

8 other side. And as a plaintiffs' lawyer, it's your 

9 job to do everything you can to pry that evidence out 

10 of the defense. There's nothing wrong with that. 

11 That's how the system was set up.

12 But what the rules do is they set a 

13 framework for how this process is supposed to work, 

14 and every time you fiddle with the rules, you 

15 potentially shift the playing field. And I would 

16 suggest that that's exactly what many of the defense 

17 lawyers who've come before you today have been 

18 suggesting.

19 In particular, by suggesting that there 

20 should be some sort of presumptive limit to the number 

21 of topics that can be discussed at a 30(b)(6) 

22 deposition, what they're trying to do is hamstring 

23 plaintiffs' lawyers in their effort to get to the 

24 truth, which is what our job is. It's understandable. 
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1 That's what they --

2 JUDGE JORDAN: Let me ask you a question, if 

3 I might.

4 MR. ZAVAREEI: Yes.

5 JUDGE JORDAN: Mr. Zavareei, you -- in your 

6 written submission, you say you're opposing conferring 

7 regarding the numbers of matters of examination. Why 

8 are you opposed to a discussion about -- or a 

9 conferral about the number of topics and the scope of 

10 topics, the kind of topics? Why is that a problem? 

11 Why is that not exactly what should be happening?

12 MR. ZAVAREEI: Because I think what you 

13 should be conferring about are the topics themselves, 

14 not the number of topics. I think talking about the 

15 number is a red herring. What you need to be talking 

16 about is are the topics that you've designated overly 

17 broad, are they confusing, are they unclear, are you 

18 going on a frolic and detour, so that --

19 JUDGE JORDAN: Won't you have to get into 

20 some understanding of the number or -- as you're 

21 talking about scope, if you're saying we're going to 

22 bring somebody in, and you say I -- you know, the more 

23 specific you get, the more likely you are to get 

24 somebody who's properly prepared, right?
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1 MR. ZAVAREEI: I respectfully disagree with 

2 that, Your Honor. I think that -- with respect to 

3 numbers, I think as a defense lawyer, the more topics 

4 I have, the better off I am, because the better I can 

5 prepare my client and my witness for a deposition. So 

6 if there's an arbitrary number --

7 JUDGE JORDAN: None of them seem to be 

8 saying that.

9 JUDGE BATES: Yeah, that doesn't seem to be 

10 the view of the defense bar.

11 MR. ZAVAREEI: Well, because I think what 

12 they're -- I understand that, but in actual fact, when 

13 I get in depositions and I've given, you know, a broad 

14 list of topics that covers everything that I want to 

15 do but doesn't get to specifics, and then I start to 

16 drill down into the specifics, I hear objections that 

17 I'm going outside the scope. And so the idea that 

18 having a large number of topics is disadvantageous I 

19 think is actually not true.

20 I think what it does is it gives them an 

21 advantage because it gives them an opportunity to cut 

22 you off at the knees. That's why they're complaining. 

23 It's not because --

24 JUDGE BATES: Well, assume just for a 
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1 moment, for discussion purposes, that a list of topics 

2 of 160 is not desirable from the defense perspective, 

3 and you have two binders next to you that purport to 

4 include examples of such things. Wouldn't either, or 

5 both, a presumptive limit or the requirement to confer 

6 on the number of topics help to address that? And 

7 without those, what would take care of the problem of 

8 160 topics?

9 MR. ZAVAREEI: Well, I haven't seen what's 

10 in the binders, so I can't really speak to that.

11 JUDGE BATES: Well, just assume that that's 

12 what's in them. That's what's been represented to us.

13 MR. ZAVAREEI: Okay. I understand that. 

14 I've never seen a deposition notice that has two 

15 binders, and I've doing this for 23 years, so if 

16 that's happened -- and this brings up another point, 

17 which -- some of the lawyers were saying that oh, they 

18 never go to the courts with these disputes. I mean, 

19 most of the defense lawyers I litigate against are not 

20 wilting violets. If there is a problem, they will go 

21 to the Court and they will raise these disputes. If I 

22 served an abusive set of topics like this, I would 

23 expect to get dragged in front of the judge, who would 

24 take care of the problem.
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1 So I think it's important that we have the 

2 meet and confer standard. I think that's valuable. I 

3 don't think meeting and conferring with respect to the 

4 topic is necessary, but again, I don't think it's 

5 harmful. I think --

6 PROF. MARCUS: Do you mean with respect to -

7 -

8 MR. ZAVAREEI: I'm sorry.

9 PROF. MARCUS: -- an abstract number?

10 MR. ZAVAREEI: I'm sorry. Yes, I'm sorry, 

11 with respect to the number. Thank you. With respect 

12 to the presumptive limits on the numbers, again, I 

13 just -- I don't think that that's going to be helpful 

14 to either side. It's going to be disadvantageous to 

15 the goals of the rules, which is to bring forth the 

16 truth and to allow the parties to discover the facts 

17 in the case.

18 JUDGE BATES: Any final comment?

19 MR. ZAVAREEI: No.

20 JUDGE BATES: Fine. 

21 MR. ZAVAREEI: Thank you.

22 JUDGE BATES: Thank you very much. We 

23 appreciate your testimony.

24 We'll move to the next witness, William 
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1 Conroy.

2 MR. CONROY: Good afternoon. I'm Bill 

3 Conroy. I first want to thank everyone for having me 

4 here today and thank the Committee for your time. 

5 It's been a long day, a lot of time and effort put 

6 into a very important issue that affects all of us in 

7 this room and around the country.

8 By way of background, I'm from Philadelphia. 

9 I'm a partner in the firm of Campbell Conroy & 

10 O'Neil. We're a boutique law firm. We specialize in 

11 trying catastrophic injury cases. This is what I've 

12 been doing for the past 35 years around the country. 

13 I serve as both national and regional counsel for some 

14 of the largest companies in this country. I've had a 

15 very deep background dealing with 30(b)(6) 

16 depositions.

17 And I'll be very frank with you. My 

18 experience overall has been very positive. Very 

19 positive. I deal with professionals at many levels, 

20 but I'll also tell you there's been some times where 

21 there's been -- things have come off the tracks, and 

22 I'm concerned that some of the proposed changes that 

23 I'll talk about in a minute may make the problem worse 

24 for us. And I say that respectfully, because this 
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1 committee is well intended, but I'm here to share with 

2 you some of the things that I have experienced.

3 You know, I believe that conferral is good. 

4 When I get a deposition notice, and it has 50 or 75 

5 topics in it, I'm on the phone with opposing counsel 

6 about it. We're going to talk it through. We're 

7 going to try and get it resolved. I believe conferral 

8 is good. I want to avoid at all costs filing 

9 discovery motions or motions for a protective order.

10 I want to focus my comments specifically on 

11 two parts of the proposed amendment. The first deals 

12 with the requirement that counsel meet and confer 

13 regarding the identity of the person to be designated. 

14 I think that's a bad idea. I think it's a bad idea. 

15 And the reason is because what is it that we're to 

16 talk about? Once we get into who the person is, the 

17 questions start following, "Well, why is that person 

18 being deposed? What's their background?"

19 JUDGE JORDAN: Would you agree that 

20 conferral is appropriate as to the number of 

21 witnesses, and if there are to be more than one 

22 witness to address a 30(b)(6) deposition notice that 

23 there ought to be some sort of designation that I'll 

24 have two -- at a minimum, I'll have two witnesses 
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1 there, one will be dealing with topics one, two, and 

2 three, the other with four, five, and six?

3 MR. CONROY: Absolutely, Your Honor. I 

4 think that's a great way to do it, and frankly, that's 

5 how I do it, because I think that allows for an 

6 efficient use of the person taking the deposition to 

7 understand there's more than one person coming. But 

8 my concern is once we're required to start identifying 

9 -- to discuss who the person will be, now we're 

10 getting into issues about what the process might be. 

11 Not all the time, but it's there. 

12 And the other thing, I spend a lot of time 

13 in a courtroom. The other thing is how are these 

14 30(b)(6) depositions being used?

15 JUDGE JORDAN: Can I ask --

16 MR. CONROY: I know when I -- Yes, Your 

17 Honor.

18 JUDGE JORDAN: -- another thing? Do you 

19 typically identify the witness in your practice?

20 MR. CONROY: I do not. There are occasions 

21 when I do, but I typically do not.

22 JUDGE JORDAN: Why not?

23 MR. CONROY: Because I've had experience 

24 with some lawyers, Your Honor, where when I've done it 
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1 in the past, it led to a lot of mischief. I would 

2 show up at a deposition for that person, and they have 

3 gone back. They've got transcripts from that person 

4 from other cases. They're getting bogged down in 

5 issues that really aren't part of what the actual 

6 person's there to testify about.

7 JUDGE BATES: You mean transcripts of the 

8 witness testifying about some other subjects?

9 MR. CONROY: Oh, yeah. That happens, Judge. 

10 I mean, it's shocking to me that it happens, but I'm 

11 here to tell you it has happened.

12 JUDGE BATES: But putting yourselves in the 

13 shoes of the noticing lawyer, shouldn't that lawyer be 

14 able to at least look at earlier depositions of the 

15 witness to see if the witness testified on the same 

16 subjects and to ask questions relating to that? Maybe 

17 not to ask questions about other subjects, but why 

18 shouldn't the lawyer be --

19 MR. CONROY: Because I think --

20 JUDGE BATES: -- enabled to do that?

21 MR. CONROY: Because I think, Judge, that 

22 goes more to them as a fact witness, as opposed to 

23 them being there as a corporate witness speaking as to 

24 the knowledge of the corporation.
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1 JUDGE BATES: Well, it may or may not, but 

2 there may be examples where they testified previously 

3 as a corporate witness.

4 MR. CONROY: Well, to that extent, Judge, 

5 what I've seen in my own practice is it's been abused. 

6 I'm not seeing a situation where it's being done 

7 properly. And what happens is we get mired down in 

8 these 30(b)(6) depositions with testimony they've 

9 given in the past, and often we spend a lot of time at 

10 trial sorting out what is actually the fact testimony 

11 versus what they were actually there to testify for 

12 about at the trial. So it adds one more layer of 

13 complication for us.

14 JUDGE ERICKSEN: So does --

15 MS. TADLER: So in your --

16 MR. CONROY: That's the problem I have.

17 MS. TADLER: Sorry.

18 JUDGE ERICKSEN: Does part of --

19 JUDGE BATES: Go ahead.

20 JUDGE ERICKSEN: We've heard that one of the 

21 problems with a 30(b)(6) is that there's not really an 

22 opportunity to instruct a witness not to answer, that 

23 that comes at very high risk. And then we've also 

24 heard when questions are obviously outside the 
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1 30(b)(6), you know, pictures of the guy's house or the 

2 car, or something like that, that you just object and 

3 instruct not to answer.

4 So is there a clear line in your mind if the 

5 other side -- if you're defending, and the other side 

6 has that information, and they start asking questions 

7 that, in your mind, blur, is it clear to you when you 

8 can and when you can't instruct the witness not to 

9 answer?

10 MR. CONROY: Judge, there really is no clear 

11 line, and the problem is I may make a judgment call on 

12 that, and depending, frankly, on the court that I'm 

13 before, they may look at it in a certain -- under a 

14 certain filter and a different judge on yet a 

15 different filter. And we don't know where that line 

16 is.

17 JUDGE BATES: And that gray line exists in 

18 regular Rule 30 depositions as well.

19 MR. CONROY: It does, Your Honor, yes. But 

20 you know, it's a fact that I've been in situations 

21 where really peripheral things are brought up about 

22 previously identified witnesses. And we're wasting 

23 our time in this deposition on this. 

24 MS. TADLER: So, I'm sorry, I want to go 
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1 back to the point that Judge Bates was talking to you 

2 about earlier. To the extent that there is a 

3 corporate representative that tends to be a repeat 

4 corporate representative witness, in your experience 

5 are those prior transcripts shared to give context to 

6 the noticing party?

7 MR. CONROY: I've had situations where the 

8 person we're going to put up for a deposition -- this 

9 is how it's played out sometimes. You know, we've 

10 identified the person, because we have a relationship 

11 with that particular lawyer. We know how things are 

12 going to play out. He or she knows who the person is. 

13 They may have transcripts on them. We sometimes can 

14 avoid the deposition altogether. That has happened. 

15 It's happened in my own experience.

16 What I worry about, though, is the mischief 

17 not with the people that we know that are the 

18 professionals and do it the right way. I'm not sure 

19 what the right word is, but I've had other experience, 

20 and more than just on a few occasions, where putting 

21 the name out in advance led to a whole lot of 

22 problems.

23 JUDGE BATES: Do you think that we should 

24 assume that mischief is only caused by the noticing 
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1 lawyer and never would there be mischief on the other 

2 side, for instance, not disclosing transcripts and the 

3 identity of the witness to make things more efficient? 

4 MR. CONROY: I think --

5 JUDGE BATES: Or should we only assume that 

6 there's mischief on one side of the V?

7 MR. CONROY: Judge, it goes both ways. I 

8 mean, there's issues -- you know, we're all supposed 

9 to conduct ourself a certain way, and I think most 

10 people do. But I think on both sides there can be 

11 issues.

12 JUDGE BATES: All right. Thank you very 

13 much, Mr. Conroy. We appreciate very much your 

14 testimony.

15 MR. CONROY: Thank you. Good afternoon. 

16 Appreciate it.

17 JUDGE BATES: Good afternoon to you, too.

18 Next up will be Craig Leslie.

19 MR. LESLIE: Good afternoon. Thank you for 

20 the opportunity to address the Committee this 

21 afternoon. My name is Craig Leslie. I'm a partner 

22 with the firm of Phillips Lytle in Buffalo, New York. 

23 We have about a 180-plus-year history growing out of 

24 Buffalo and locations across New York State.
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1 I am fortunate to have a practice that is 

2 not just regional but national and, to some degree, 

3 international, representing large and small companies. 

4 I do commercial litigation on both the plaintiffs' 

5 side and the defense side. I also do product 

6 liability defense, including assisting sometimes with 

7 cases in Ontario and Quebec, and I also do plaintiffs' 

8 personal injury work. So I have a broad spectrum of 

9 experience on both sides of the "v".

10 I consider myself first and foremost a trial 

11 lawyer, so I approach the proposed amendment to the 

12 rules from the perspective of does this help me or 

13 provide tools to me to efficiently resolve disputes 

14 whether or not they eventually go to trial. So I look 

15 at is it going to help me avoid unnecessary motion 

16 practice, is it going to help me focus and narrow the 

17 issues in dispute before I get to trial, and is it 

18 going to help me get a clean record by the time I get 

19 to trial for the purpose that I need to use the 

20 evidence or defend against the evidence.

21 And what I would submit at the outset is the 

22 present proposed amendment, in my mind and based on my 

23 experience, doesn't further those goals and may, in 

24 fact, impede them, particularly with respect to the 
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1 meet and confer requirement regarding witness 

2 identification. I will not repeat the comments that 

3 my colleagues have made on that particular point. 

4 Instead, I'll focus in on some of the questions that 

5 have been asked today of what are the problems with 

6 I.D.'ing the witness in advance.

7 And I can't tell you what that period is 

8 that the committee may be thinking about in terms of 

9 how far in advance, but I would say this. A 

10 requirement that I disclose the identity of the 

11 witness in advance without a corresponding duty on the 

12 part of the propounding party to give me sufficient 

13 notice in advance just compounds a problem that we 

14 already have, because if I am getting a 30(b)(6) 

15 notice seven days ahead of time, two weeks ahead of 

16 time, and then I am within a day, two days, a week 

17 having to disclose a witness to respond to a lengthy 

18 list of topics, it only compounds the problem that I 

19 already have, which is there's not a good procedure 

20 structure in place to resolve the problems with those 

21 topics.

22 So while I applaud the idea of meeting and 

23 conferring about the topics, I would say to you that 

24 proposed part of the amendment happens anyway by 
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1 necessity. I can't produce a witness to address more 

2 than 100 topics in a notice that I receive. I have to 

3 meet and confer on it, or else I'm stuck. I'm never 

4 going to be able to prepare a witness to address those 

5 topics. I have to get those resolved.

6 JUDGE JORDAN: In your experience, how often 

7 do you actually give the witness identity?

8 MR. LESLIE: Because of my past experiences, 

9 I no longer do so, is the shortest answer to that 

10 question. My practice now is not to disclose the 

11 identity of a 30(b)(6) witness when I receive a 

12 notice, because as a young lawyer I proved the adage 

13 that my law school civ pro professor taught me, which 

14 was you will learn these rules now or you will learn 

15 them by the cuts and bruises you suffer along the way, 

16 and I have suffered a few.

17 My practice when I was a younger lawyer, 

18 when I was starting out, was to try to be as collegial 

19 as possible with respect to the disclosure of the 

20 witness in advance. It proved to be exactly the

21 parade of horribles that you've heard about, where my 

22 witnesses are there to speak on behalf of the 

23 company's knowledge, and the deposition devolves into 

24 an examination of their personal finances, what 
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1 they've done, perhaps, if they're a retiree in some 

2 instances. 

3 I have legacy cases where the product has an 

4 extensive tail life, and we have to go back and 

5 sometimes have retirees represent the company because 

6 they're the only ones with knowledge, and in those 

7 instances it became an examination about those issues, 

8 which of course I would object to. I am hesitant ever 

9 to direct the witness not to answer except on 

10 privilege, because I am in many jurisdictions where 

11 you can't direct not to answer except for privilege.

12 And it also devolved into this strange, 

13 quasi, is it a 30(b)(6), is it a 30(b)(1), and so when 

14 I talk about getting a clean record, it makes it 

15 incredibly difficult to get a clean record when you 

16 have a party coming in on a 30(b)(6) notice and then 

17 they go off and they veer off into the 30(b)(1) 

18 territory.

19 JUDGE ERICKSEN: Could I -- could I --

20 JUDGE JORDAN: Help me understand -- oh, I'm 

21 sorry.

22 JUDGE ERICKSEN: Could I just explore that 

23 with you? And I think it's more to the conversation I 

24 had with Mr. Lieberman on the phone. Can you imagine 
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1 a way that the problem, if you will, of the -- we'll 

2 say plaintiffs and defendants, of the plaintiffs not 

3 knowing whether the very witness who they'll be facing 

4 is somebody who has previously testified on the same 

5 topics on behalf of the corporation? So that --

6 MR. LESLIE: Right.

7 JUDGE ERICKSEN: That seems to be 

8 information that leads to a great deal of efficiency. 

9 Can you think of a way to address that without 

10 requiring identification of the 30(b)(6) witness in 

11 every case?

12 MR. LESLIE: I would suggest that in cases 

13 where we're dealing with particularly mass torts or 

14 repetitive injuries from a product, typically the 

15 proponent of that notice can get transcripts about the 

16 company's knowledge regarding that product without 

17 knowing the specific witness that I'm going to bring 

18 in. I don't necessarily need that knowledge either 

19 when I'm on the other side.

20 JUDGE ERICKSEN: How do you get it?

21 MR. LESLIE: Well, there are the databases 

22 that are out there. There is sharing. Just like on 

23 the defense side, on the plaintiffs' side there is 

24 sharing of transcripts. I actually have less access 
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1 because I'm not a full member on the plaintiffs' side. 

2 I straddle that line. But the transcripts are there.

3 If I want to know about a particular defect 

4 in a product, this ratcheting component of the 

5 product, I can get, by reaching out to my colleagues, 

6 transcripts about the company's knowledge about that 

7 defect without it mattering who the company witness 

8 was. Now, it may very well be it's the same witness, 

9 but I can get those transcripts. I don't need a 

10 specific name to get those transcripts on that defect.

11 If, on the other hand, I'm in a case where 

12 my person is there to talk about specific knowledge of 

13 this particular product, and what I'm being asked to

14 do is give a name so that the other side can go get 

15 transcripts about some other product, it's not 

16 advancing the purpose of 30(b)(6). You're not getting 

17 the knowledge. You're trying to get a sound bite, or 

18 you're trying to trap that witness. So in my 

19 practice, in my experience, I don't disclose that.

20 I see my time is up. Happy to answer any 

21 other questions. I would only close with this 

22 otherwise. As a litigator, like I said, I look at it 

23 as my toolbox. The initial package of proposals that 

24 this committee discussed over a year ago had some good 
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1 ideas in there with respect to how to make these 

2 objectives easier to obtain and to resolve litigation 

3 more efficiently. 

4 I would submit this proposed amendment isn't 

5 it, and my fear is making these tweaks, this rule will 

6 sit for another 50 years before we can fix whatever 

7 mischief occurs if this proposed amendment's adopted.

8 JUDGE BATES: I'll make an observation, Mr. 

9 Leslie, with respect to the identity of the witness, 

10 disclosing the identity of the witness.

11 MR. LESLIE: Yes, Your Honor.

12 JUDGE BATES: What you've said seems to be 

13 what we don't want to see happening, which is you've 

14 said that your experience has taught you to be less 

15 forthcoming and less cooperative in this discovery 

16 process.

17 MR. LESLIE: I wouldn't say less 

18 cooperative, Your Honor. What I would say is --

19 JUDGE BATES: Well, not to disclose the 

20 identity of the witness.

21 MR. LESLIE: But the identity of the witness 

22 is irrelevant in the 30(b)(6) context because it's the 

23 knowledge of the company. Now, that's not to say that 

24 if I am in a situation where I have someone who is 
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1 seeking a 30(b)(1) notice of that same witness, or I 

2 know has indicated they intend to, that I won't say to 

3 them, "Look, let's coordinate here. I think this may

4 be the person I'm going to produce." But it's going 

5 to depend upon my experience with that other law firm 

6 or set of lawyers, because otherwise it devolves into 

7 that personal examination and it muddles that record 

8 of that proceeding.

9 JUDGE BATES: Thank you very much, Mr. 

10 Leslie. We appreciate it.

11 MR. LESLIE: Thank you all very much.

12 JUDGE BATES: Next up, Lauren Barnes. Good 

13 afternoon.

14 MS. BARNES: Good afternoon. I didn't trip 

15 on the way up here, so I'm feeling like I'm winning 

16 already.

17 (Laughter.)

18 JUDGE BATES: You're halfway there.

19 MS. BARNES: Well, I haven't said anything 

20 about walking back yet. My name is Lauren Barnes. I 

21 am a partner in the Boston office of Hagens Berman 

22 Sobol Shapiro, and I sue drug companies. I sue drug 

23 companies on behalf of businesses, consumers, and 

24 sometimes governmental agencies. Those are entities 
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1 that have been harmed economically, usually by what we 

2 allege are anticompetitive, antitrust behaviors by 

3 these drug companies.

4 My plaintiffs represent a class, and usually 

5 throughout my practice those plaintiffs have been 

6 businesses themselves. They are wholesalers. They 

7 are pharmacies. They are insurers. So like several 

8 people have said today, I have been on the receiving 

9 end of as many 30(b)(6) notices as I have drafted and 

10 sent out. I have more than my fair share of 

11 experience negotiating the receipt of one, defending a 

12 -- preparing a witness and defending that deposition, 

13 as I have trying to put one together and sending it 

14 out and negotiating with the other side.

15 I thank you for the opportunity to speak 

16 with you today. I support the proposed amendments 

17 that this Committee has put forward. I think they are 

18 fair and balanced in the true, and not the Fox News,

19 sense of the words. The proposed amendments, in my 

20 experience, simply codify what is the best practice 

21 already.

22 Efficiency is queen in my world. As Mr. 

23 Slavik mentioned earlier, I don't get paid if I am not 

24 efficient. My firm cannot cover its costs if we don't 
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1 move a case forward and get to resolution. So every 

2 hour that I work on a deposition or a topic that is 

3 pointless is an hour that I don't have any guarantee 

4 of recovery. Efficiency, in turn, depends on 

5 collaboration and transparency.

6 So what happens in the cases that I'm in? 

7 We serve a notice with the topics that we think that 

8 we need testimony on. We draft the topics with as 

9 much particularity as we can, which may mean a lot of 

10 topics. It may mean a lot of subtopics.

11 PROF. MARCUS: Could you tell us what "a 

12 lot" means?

13 MS. BARNES: Sure. So I looked up the most 

14 recent one that we sent in a case, and it had 26 

15 topics. Several of those topics had particularity, 

16 right, so there were some subtopics. There were 23 of 

17 those. So is it a 26-topic notice? Is it a 49-topic 

18 notice? It depends probably on which side of the V 

19 you're on to count that. 

20 That was a case where we were alleging two 

21 pharmaceutical manufacturers had engaged in fraud, and 

22 the underlying patent litigation that we were after 

23 had gotten to a certain point, and we issued that 

24 notice at a certain point in the course of discovery. 
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1 That may be different than one that I am thinking 

2 about now where there are different numbers of 

3 defendants, we are at a different -- that the 

4 underlying litigation went to a different point in 

5 time, that the record is different.

6 So the number of topics, I submit, depends 

7 greatly on the type of case that we are talking about, 

8 the status of the discovery, the number of things that 

9 the parties have talked about. Every single time that 

10 I get a 30(b)(6) notice, we have a meet and confer. 

11 It's just routine. And every time that I receive a 

12 30(b)(6) notice on behalf of a class representative, I 

13 am asked who I will put up as the deponent, and I 

14 always tell them. 

15 JUDGE JORDAN: Do you have --

16 MS. BARNES: I don't see any need to hide 

17 that.

18 JUDGE JORDAN: Do you have lawyers that you 

19 ask that information of who decline to give it to you?

20 MS. BARNES: I will say that I am starting 

21 to see that a little bit more, but the routine has 

22 been that we ask and we are ultimately told -- and 

23 part of the reason for that goes to the sufficiency of 

24 we often have individual notices as well as 30(b)(6) 
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1 notices, and multiple people answering various topics 

2 within the notices that we put out.

3 JUDGE JORDAN: Would it then be -- is the 

4 rule working just fine, then?

5 MS. BARNES: I think, frankly, the rule is 

6 working pretty well. I would submit that the meet and 

7 confers are already happening. It's a best practice. 

8 I don't think that it hurts to codify a best practice.

9 JUDGE BATES: Let me ask one question with 

10 respect to conferring. Do you, in your experience --

11 whether you're noticing the deposition or defending 

12 the deposition, do you, in your experience, confer as 

13 to the identity of the witness?

14 MS. BARNES: No. And I don't think that I 

15 get a say in who the defendant is going to put up. I 

16 may have a question about it. I'll give an example. 

17 Recently, for the patent-related topics of the 

18 30(b)(6) notice, we got the name of somebody, and we

19 -- we did, we went back to the database, and we 

20 looked, and we had 13 documents from that person, and 

21 this is a database that has probably two million 

22 documents, and all of those 13 documents post-dated 

23 the time period that was at issue.

24 So I did go back and say, well, wait a 
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1 minute. Why is it this person and, frankly, did we 

2 miss a whole lot of documents? This is a custodian 

3 that we should have learned about earlier in the 

4 process." And what we were told is that person had 

5 switched jobs and come in at that point, and that's 

6 why they were putting them up for the patent issues at 

7 that point. That's fine.

8 I wasn't saying that this wasn't the 

9 appropriate person. I just wanted to understand a 

10 little bit more about where it is and are we doing 

11 open and transparent discovery so that we are getting 

12 at what the discovery rules are all about, which is 

13 sharing information so that we can winnow it down, 

14 figure out what claims are supported, what claims can 

15 be defended against, and move forward. I think the --

16 JUDGE BATES: I'll give you a moment for 

17 another comment.

18 MS. BARNES: You know, I think I'm going to 

19 stay there.

20 (Laughter.)

21 JUDGE BATES: All right. Like to hear that.

22 MS. BARNES: Thank you.

23 JUDGE BATES: Thank you very much. We 

24 appreciate your testimony.
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1 And next we will hear from Palmer Vance.

2 MR. VANCE: Good afternoon. I'm Palmer Gene 

3 Vance and I currently serve as chair of the ABA 

4 Section of Litigation. However, these comments, as 

5 with all comments from section leadership to this and 

6 the other committees, are offered in our individual 

7 capacity and on behalf of other section leaders as 

8 reflected in our written comments. They do not 

9 constitute the official position of the section or of 

10 the American Bar Association.

11 The section's Federal Practice Task Force 

12 has been engaged in this process with the committee 

13 for several years, and we appreciate this opportunity. 

14 The section's task force report of November 23rd, 2015 

15 recommended changes that are far more extensive than 

16 those that are now under consideration, but we remain 

17 grateful for the attention that the Advisory Committee 

18 has given all of our suggestions, and we do view the 

19 current proposal as an improvement of the rule.

20 We have two specific comments to make today:

21 First, as to the meet and confer proposal, the only 

22 current mechanism for obtaining judicial intervention 

23 to resolve a Rule 30(b)(6) dispute is a formal motion 

24 for protective order by the party or the other person 
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1 served with a 30(b)(6) notice. This proposed change 

2 is helpful in requiring that parties communicate in 

3 advance of 30(b)(6) depositions. But we submit that 

4 it does not go far enough as a practical matter.

5 We think that the rule should go a step 

6 further by including a provision for counsel to set 

7 forth in writing any issues with the notice before a 

8 meet and confer and include the language that we 

9 previously suggested in our May 24th, 2018 letter to 

10 Judge Campbell, and I quote, "If the parties cannot 

11 resolve material disagreements, they are encouraged to 

12 request a conference with the Court to obtain an early 

13 resolution of the matters," end quote.

14 JUDGE JORDAN: Can I ask you a question here 

15 now, Mr. Vance?

16 MR. VANCE: Yes.

17 JUDGE JORDAN: Because I'm not sure I 

18 entirely understand. You're careful to say that 

19 you're the ABA Litigation Section chair, but then I 

20 thought I heard you say you're not speaking on behalf 

21 of the ABA Litigation Section, but you have --

22 continue to speak in terms of the "we," so I want to 

23 make sure I've got this straight in my mind.

24 If I heard you right to say we think the 
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1 proposed rule amendment is good, I want to know 

2 whether that's Palmer Vance's position or that's the 

3 position of the ABA Litigation Section.

4 MR. VANCE: It is my position and the 

5 position of those signatories on the written comments 

6 that we have tendered, Your Honor --

7 JUDGE JORDAN: Okay.

8 MR. VANCE: -- which consists of the current 

9 upcoming chairs and members of the council and the 

10 Federal Practice Task Force of the Section of 

11 Litigation.

12 JUDGE BATES: Can I ask you a follow-up 

13 question to that?

14 MR. VANCE: Yes, sir.

15 JUDGE BATES: Specifically with respect to 

16 that group, can you represent to us that that group is 

17 a fair representation of both plaintiffs' lawyers and 

18 defense lawyers?

19 MR. VANCE: Yes, I can. The Section of 

20 Litigation is the largest organization --

21 JUDGE BATES: I'm just talking about the 

22 people who signed the letter.

23 MR. VANCE: Sure. Understood.

24 JUDGE BATES: Not the section.
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1 MR. VANCE: Right. And to answer that 

2 question, Judge Bates, it is a broad church, and so it 

3 includes within it multiple perspectives, the 

4 plaintiffs' bar, the defense bar. And the leadership 

5 and those people who have signed the letters are 

6 broadly representative of the membership of the 

7 section, which is broadly representative of litigation 

8 practice on all sides of the "v".

9 PROF. MARCUS: Mr. Vance?

10 MR. VANCE: Yes.

11 PROF. MARCUS: The section has been 

12 immensely helpful for a long time to this committee, 

13 but I'm wondering if you can tell me where else in our 

14 rules there's a rule that says parties are 

15 "encouraged" to do something.

16 MR. VANCE: I am not aware of the use of the 

17 word "encouraged" in that context, and perhaps this 

18 would be something more appropriately placed in the 

19 comment. I understand the concern about something 

20 that is encouraging rather than directing. 

21 Nevertheless, we think that this approach is 

22 consistent with the 2015 amendments where we are 

23 seeking efficient justice, and they encourage more 

24 informal practices for hands-on Court involvement.
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1 PROF. MARCUS: I'm sorry to interrupt you 

2 here.

3 MR. VANCE: Sure.

4 PROF. MARCUS: One other thought occurs to 

5 me that I think could fit in. Do you know if any of 

6 the folks on the -- about two dozen, I think, signed 

7 that letter.

8 MR. VANCE: Yes, sir.

9 PROF. MARCUS: Ever bring up the 26(f), Rule 

10 16 point, a case management provision that would be 

11 available to deal with the problem on which we might 

12 encourage them to act sensibly later?

13 MR. VANCE: I can't speak to the other 

14 signatories with respect to that specific question, 

15 but I can give you my experience. I practice largely 

16 in Kentucky, in the Eastern and the Western Districts 

17 of Kentucky. Our judges are very much of the view 

18 that to the extent that informal resolution of these 

19 types of issues can be accomplished, it should be 

20 encouraged, and often, that's in the scheduling order, 

21 provisions such as you cannot file a discovery motion 

22 until you have had an informal conference with a 

23 magistrate judge. And I think that is the spirit that 

24 the 2015 amendments get to, and we believe that it's 
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1 appropriate that that same spirit should be taken into 

2 account when looking at Rule 30(b)(6).

3 With that, Judge, I think my time is coming 

4 to an end. I would make one other point. We had a 

5 second topic on which we provided comments, and that 

6 has to do with the number of 30(b)(6) depositions. 

7 And without going into the rationale, which is 

8 expressed in our written comments, our suggestion is 

9 that each seven hours of a 30(b)(6) deposition be 

10 counted as a single deposition toward the limit set 

11 forth in Rule 30(a)(2), and we have set that forth in 

12 our comments previously and in our comments in advance 

13 of this hearing.

14 JUDGE BATES: Good to see you again, Mr. 

15 Vance. Thank you very much.

16 MR. VANCE: Good to see you, Judge Bates. 

17 Thank you.

18 MR. VANCE: Next we'll hear from Tobias 

19 Millrood.

20 MR. MILLROOD: Good afternoon. My name is 

21 Tobi Millrood. I'm a partner in the law firm of Pogust 

22 Millrood, located just outside of Philadelphia. For 

23 over 20 years I have represented plaintiffs, mainly in 

24 the area of defective drug and device litigation. I 
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1 also serve as the vice president of the American 

2 Association for Justice, the largest plaintiffs' trial 

3 bar in the world, whose mission is to preserve the 

4 constitutional right to trial by jury when people are 

5 injured by the negligence or misconduct of others.

6 I present to the Committee today on behalf 

7 of AAJ, but I can share my wealth of personal 

8 experience as a litigator, having served as lead 

9 counsel in numerous drug and device litigations and 

10 having noticed and/or taken dozens of 30(b)(6) 

11 depositions.

12 AAJ thanks this committee for its time and 

13 thoughtful consideration in evaluating the possible 

14 30(b)(6) amendments. As indicated in our submission, 

15 we voice general support for this rule, particularly 

16 given the balanced tenor of the language of the draft 

17 rule, which ensures that plaintiffs will have a fair 

18 shake in the 30(b)(6) discovery process, with meet and 

19 confer requirements and the disclosure of the identity 

20 of the witness.

21 Our suggested changes are few, if any, but 

22 we voice specific objection to the requirement to 

23 confer over the number of topics in a 30(b)(6) 

24 deposition notice, as it will result in unintended 
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1 consequences that will harm the discovery process and 

2 invite protracted litigation and delay.

3 There are a couple of preliminary matters I 

4 want to raise that follow from discussion from this 

5 morning. First, I want to emphasize a comment you 

6 made, Judge Jordan. You addressed a question to 

7 elicit an answer from a witness today in which you 

8 stated the answer should not be for the benefit of the 

9 plaintiff or the defendant but of all parties.

10 And I emphasize that at the outset, because 

11 one thing that struck me today is that at times it 

12 devolved into adversarial litigation of the rule. Our 

13 goal here should be to achieve a balanced rule for all 

14 parties.

15 JUDGE JORDAN: Well, on that topic, on that 

16 very point, why is it less than good and fair for the 

17 system generally to have, among other topics discussed 

18 at a meet and confer, a discussion of how many things 

19 are going to be reasonably covered in the course of a 

20 deposition? Why should the number of topics be off 

21 the table?

22 MR. MILLROOD: Thank you, Judge. I think 

23 the meet and confer on the number has two problems. 

24 It has both a superfluous nature and it has unintended 
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1 consequences. First of all, as has been pointed out 

2 earlier today, the rule already requires that noticing 

3 parties describe with reasonable particularity the 

4 matters for examination, and there, the quality should 

5 dictate, not the quantity.

6 But there are unintended consequences to 

7 discussing the number of topics. First, it will 

8 result in a broad designation of topics, as has been 

9 discussed before. Second, it will result in multiple 

10 numbers of 30(b)(6) depositions, which is an 

11 unintended consequence. And third, I believe that it 

12 undermines the authority of the Court to manage the 

13 specific litigation before it.

14 JUDGE JORDAN: Help me understand that 

15 second one. You're right, we've talked about the 

16 first one. How does talking about the number of 

17 topics going to end up meaning there'll be more 

18 30(b)(6) depositions?

19 MR. MILLROOD: Well, let's say, for example, 

20 that either there was a presumptive limit imposed, 

21 such as 25 topics that can be addressed at a 

22 deposition.

23 JUDGE JORDAN: At this point, I'm not even 

24 talking about presumptive. I'm just trying to get --
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1 you've said we don't want to have to talk about the 

2 number of topics. I'm trying to understand what's the 

3 problem with that. What's the problem with discussing 

4 with the other side the number of topics?

5 MR. MILLROOD: Well, that's a very fair 

6 point, because if I served a deposition notice that 

7 had 30 topics, and I received a phone call from 

8 opposing counsel, and she said, "Look, I've got a 

9 problem here that you've listed 30 topics in number." 

10 I said, "Okay. Could we talk about each one of them? 

11 Let's talk about what are the specific matters for 

12 examination, because if your problem is just the 

13 number, then it seems to be a form over substance 

14 issue. If your problem is a specific topic, let's 

15 talk about it and see how we can narrow it," which is 

16 why when the rule talks about meeting and conferring 

17 on the matters for examination, that is a salutary 

18 goal.

19 But the specific number, I don't know what 

20 we achieve by saying, "I'd like to talk to you, Tobi. 

21 You've got 30 in number here and that's a problem."

22 JUDGE BATES: But it's linked. What's wrong 

23 with having number and description being a subject for 

24 discussion? I'm with Judge Jordan on this. I don't 
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1 understand what the problem would be from having a 

2 discussion with respect to number, so long as there's 

3 no presumptive limit.

4 MR. MILLROOD: Right. I mean, I think, 

5 again, it's a little superfluous because I don't know 

6 what it actually achieves. I'm happy to talk about 

7 it. If someone were to call me up and say, "Let's 

8 confer about the number of topics you've listed," I'm 

9 happy to discuss that. But I don't know how that 

10 takes us to the next step in the litigation. By 

11 putting that into the rule, what does it achieve?

12 Now, I do agree, and I think one thing that 

13 all parties have discussed today, is that we should 

14 not use the rules to enable discovery abuse. We 

15 should all act with best practices. And I echo the 

16 sentiments of Ms. Barnes that this would be a great 

17 thing to achieve to codify best practices. If the 

18 majority of lawyers are good lawyers that are talking 

19 about these issues and identifying the witnesses, then 

20 let's put the majority of what happens into a rule to 

21 ensure that those outliers follow that.

22 And I hope that I've answered your question, 

23 but I'm happy to address it further if necessary.

24 JUDGE BATES: Any other questions for Mr. 
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1 Millrood?

2 JUDGE ERICKSEN: I wonder whether there 

3 isn't a collateral benefit in putting the meet and 

4 confer requirement in the rule, in that if you have a 

5 witness who's ill-prepared, and then you end up having 

6 to go to court for sanctions to say they didn't have 

7 an adequately prepared person, aren't you in a better 

8 position to make that motion if there's a rule that 

9 says, formally, we have to discuss the topics? So 

10 then it's going to be harder to come back in defense 

11 of your post-deposition motion to say, you know, "We 

12 thought we were doing a fine job."

13 So it's not just putting best practices into 

14 the rule. It's actually giving some formal 

15 recognition to the opportunity to narrow the topics 

16 such that you don't run into the problems downstream.

17 MR. MILLROOD: Yes, Your Honor. I agree 

18 that there should be a meet and confer requirement, 

19 and I agree that it helps further the litigation. If 

20 you've discussed it and it wasn't resolved, it helps 

21 with the motion practice. So I want to be crystal 

22 clear. We're not opposed to the meet and confer 

23 requirement. We just didn't know how the number 

24 advances it. But talking about it is fine.
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1 I just want to make one final point, that I 

2 know that there's been some consternation at times as 

3 to whether or not there should be meet and confer over 

4 the identity of the witness. And I think one solution 

5 which has been alluded to, Judge Bates, is that what 

6 if we just required the identity of the witness but 

7 not a meet and confer, because I know there's been 

8 consternation that we want a seat at the table, or we 

9 want to pick who the witness is.

10 I think if there was an identity of the 

11 witness in a sufficient number of days ahead, that 

12 would solve the problem as well. 

13 JUDGE BATES: Thank you, Mr. Millrood.

14 PROF. MARCUS: Could I? There is --

15 MR. MILLROOD: Yes.

16 PROF. MARCUS: -- one question to think 

17 about and perhaps supply later if you wanted to. Does 

18 AAJ have an idea of how to put into the rule something 

19 that would achieve the goal of judicial supervision 

20 where needed? Earlier witnesses have said there isn't 

21 any way to do that. Are you in favor of that and, if 

22 so, how?

23 MR. MILLROOD: Well, we will follow up in 

24 particular with comments, but I do want to point out 
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1 that we are in agreement with the comment made earlier 

2 by Judge Ericksen about the final paragraph in the 

3 committee note, that that really does help to serve 

4 teeing this up in the Rule 26 context.

5 JUDGE BATES: Thank you again, Mr. Millrood. 

6 MR. MILLROOD: Thank you.

7 JUDGE BATES: Greg Schuck is next and the 

8 last witness before we take a brief break.

9 MR. SCHUCK: Good afternoon. My name's Greg 

10 Schuck. I'm from Birmingham, Alabama. I practice 

11 with the firm of Huie Fernambucq & Stewart. My 

12 practice is primarily in the area of product liability 

13 defense work for manufacturers. I'm admitted in 

14 states regularly across and throughout the United 

15 States in both state and federal court.

16 I also have the opportunity, and have had 

17 for 25 years, to continue to represent some smaller 

18 mom-and-pop-type companies and do that on a pretty 

19 regular basis. Small litigation, business disputes, 

20 sometimes third-party subpoenas in state and federal 

21 court on 30(b).

22 So I come at my testimony from that 

23 perspective, and one thing I would urge is let's not 

24 get lost on the fact that there's so much talk about 
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1 big mass litigation. When I hear about a lot of 

2 requirements and things that are going to be imposed, 

3 I'm worried about my smaller defendants or third 

4 parties who are receiving subpoenas and how much work 

5 we would have to do in those cases.

6 For example, oftentimes we don't identify 

7 witnesses. When somebody's getting a third-party 

8 subpoena, they're a former employee and their driving 

9 record, or whatever it may be, that's not going to 

10 happen sufficient days in advance. It's not going to 

11 be 14 days, as people would suggest. So just keep in 

12 mind that this rule applies to everybody if we make 

13 changes to it.

14 JUDGE ERICKSEN: So are you saying that any 

15 requirement for witness identification would have to 

16 be sufficiently in advance, like 14 days, so that it 

17 could be combined with the requisite notice for a 

18 30(b)(1) deposition at the same time?

19 MR. SCHUCK: I am not for any notice 

20 requirement as to the identity of the witness, in part 

21 because --

22 PROF. MARCUS: With the mom-and-pop 

23 organizations, do you typically choose the witness the

24 night before?
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1 MR. SCHUCK: That has happened. Sometimes 

2 it's the day before, especially when it's a third3 party subpoena, and it's a very narrow topic, and I've 

4 met with the owner of a company, and there's five 

5 people in the company, and we get there, and while he 

6 owns the company, he's not the best witness to talk 

7 about the records and how they were kept, and the 

8 driver logs, or whatever it may be. So it's a problem 

9 on that side of it.

10 It's also a problem, as other witnesses have 

11 talked about, for the large corporate defendants, and 

12 that's the bulk of my practice, let me be clear. And 

13 I have had mischief in cases. I can give you specific 

14 examples of former employees' houses on Google Earth 

15 being shown to them when we have given the name in 

16 advance, divorce records being brought up, just all 

17 sorts of things.

18 And unlike maybe some other people, I tend 

19 to let those questions get asked, because a lot of 

20 jurisdictions, I am not supposed to instruct not to 

21 answer unless it's privileged. And whether this 

22 person has a big house or a ranch isn't privileged, 

23 and so those questions go forward, and it has been a 

24 problem.
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1 With that said, my experience is we meet and 

2 confer on the issues. We meet and confer on 

3 everything, typically, in these depositions. The best 

4 meet and confers happen before the notice is served. 

5 We talk about topics. We talk about numbers of 

6 topics. A limit would be great, but at least having 

7 the discussion gets us somewhere.

8 I've had cases where I've helped draft the 

9 notice, because there's technical terms, and somebody 

10 raised that about if there's these terms, and it's a 

11 term of art to the company, let's have a discussion. 

12 I'll give those to you, because I don't want you 

13 giving me a notice that just confuses the issue more. 

14 If you're looking for this type of document, ask for 

15 it. This is what it's called. And we have those 

16 discussions regularly.

17 But a requirement as far as identifying the 

18 witness in advance, either some specific time or even 

19 meeting and conferring on it, is problematic for a 

20 number of reasons. It changes. I can give you 

21 numerous examples where it's changing right up to the 

22 day before. Somebody's sick, the witness is 

23 somewhere. It happens. Does that happen every time? 

24 No, especially the large manufacturers. We typically 
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1 would know in advance and we're moving towards it, but 

2 when that change happens, what happens then? That 

3 would be my question. 

4 A meet and confer requirement as written 

5 gives me great concern, because I don't know what to 

6 say in a meet and confer. If my client doesn't want 

7 me to identify the witness two weeks out, or we're not 

8 ready, the answer is simply no, and I can't really 

9 say, "We're still not sure who it is," because that 

10 potentially breaches a privilege. I can't say, you 

11 know, the reasons behind why we're choosing a witness 

12 or not choosing this witness. All those things get 

13 into my work product and potentially privileged 

14 issues.

15 JUDGE ERICKSEN: What if it said, instead of 

16 "the identity of each person," if that part of it 

17 said, "and the number of persons the organization will 

18 designate to testify?"

19 MR. SCHUCK: Well, the identity still gives 

20 me tremendous concern.

21 JUDGE ERICKSEN: No, but this takes out the 

22 identity. Take out --

23 MR. SCHUCK: Oh.

24 JUDGE ERICKSEN: -- "identity of" and 
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1 replace it with "number of."

2 MR. SCHUCK: That does not give me pause, 

3 and in my practice that's what we would do. Sometimes 

4 we get notices -- I've had some of these type notices, 

5 and we would have to divide it up. Sometimes it's 

6 two. Sometimes it's eight witnesses. I've had eight 

7 witnesses for one notice. And we would say, "All 

8 right, on Monday, Witness A is going to cover these 

9 six topics. On Monday afternoon, here's what we're 

10 going to cover," and we've done it for a week where we 

11 finish on Friday afternoon with eight witnesses, and 

12 that, I think -- you're hearing most people do that.

13 I also will say, and I know I'm about out of 

14 time, I give the name of with a lot of good lawyers. 

15 Where I have a reputation with people, and they have a 

16 reputation with me, if they ask, I'm going to give 

17 them the name. That's typically what happens, and 

18 it's happening now without any change to the rule.

19 JUDGE BATES: But you want to preserve the 

20 ability not to share that information with lawyers who

21 you don't trust as much.

22 MR. SCHUCK: Well, it's not so much that I 

23 don't trust as much. I've had it where lawyers I 

24 don't know, I've given the name. I had it several 
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1 weeks ago in a case. I've gotten more requests since 

2 this proposed amendment came out for the identity --

3 JUDGE ERICKSEN: You're welcome.

4 MR. SCHUCK: -- than I had in --

5 (Laughter.)

6 MR. SCHUCK: Honest truth, in 24 years, I've 

7 had more in the last six months where people have been 

8 asking. And I had a lawyer I have never done it with 

9 beginning of January, and I said, "All right, please 

10 tell me this isn't going to devolve into something 

11 where you're going to bring in all this 

12 extracurricular stuff." And he goes, "No, let me tell 

13 you why I want it." I said, "That's fair." 

14 Deposition went off second week of January without a 

15 hitch. 

16 So the meet and confer process is great. It 

17 works. It's what the rules require, but 

18 identification is a big problem.

19 JUDGE BATES: All right. Thank you very 

20 much, Mr. Schuck. We appreciate your testimony and 

21 the testimony --

22 MR. SCHUCK: Thank you.

23 JUDGE BATES: -- of all the witnesses who've 

24 been appearing, and we're now going to take a brief 
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1 break. We will resume in 10 minutes by the clock from 

2 the back wall and the front wall, at 3:16.

3 (Break.)

4 JUDGE BATES: And since I've gotten 

5 compliments for keeping us on track, I'll try to do so 

6 for the last segment.

7 And our first witness now will be Paul 

8 Bland. Mr. Bland?

9 MR. BLAND: Thank you. Thank you, Your 

10 Honor. I'm with Public Justice. I'm the executive 

11 director. Our organization both litigates a wide 

12 array of cases, environmental, consumer, worker cases, 

13 and then we also have a larger membership, about 2700 

14 lawyers, virtually all plaintiffs' lawyers, and so I 

15 consulted with a lot of the lawyers who are members 

16 and supporters and whatnot in preparing for our 

17 testimony.

18 What I'd like to talk about is particularly 

19 in the morning, the second session before lunch, a 

20 number of the defense side witnesses in a row came up 

21 and were arguing in favor of having presumptive limits 

22 on the number of topics, and it generated a lot more 

23 questions in a way that sort of alarmed me, so I'd 

24 really like to focus my five minutes talking about 
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1 that particular issue, if I may.

2 So historically, one of the things that was 

3 surprising to me about that was that historically, the 

4 majority of the litigation where people are fighting 

5 over Rule 30(b)(6) tends to be over how specific the 

6 topics are. The topic's too vague. Are they giving 

7 the company notice of what they're really going to be 

8 asked for? Is it going to turn out to be something 

9 that's surprising?

10 If what you do is you were to have a limit 

11 on presumptive number of topics to, say, 10 in a 

12 deposition, what that's going to do is one of two 

13 things is going to happen. And so they both come out, 

14 but I think that the second one really goes to this 

15 point I was just making about what people have really 

16 been fighting over.

17 So one thing that's going to happen is 

18 there's going to be a lot of cases in which 10 topics, 

19 particularly if you're going to be very specific, is 

20 not going to be nearly enough. So are you going to 

21 have a rush of people going to court and filing 

22 motions? And this goes to the question that's asked 

23 about who is the burden going to be on. Do you want to 

24 have -- if someone is coming in with a binder that 
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1 supposedly has 260 unfair topics that's disastrous for 

2 the company, do they have to go and seek a protective 

3 order, or should somebody who has 12 topics have to go 

4 and seek an order, you know, for leave from the 

5 numerical limit?

6 I think what's more likely to happen is that 

7 people are going to write 30(b)(6) notices 

8 differently. So right now, if you might write a 

9 notice which would have a whole bunch of topics, but 

10 they're actually quite specific -- so we do a lot of 

11 Clean Water Act cases, so we will frequently know that 

12 there were emissions that exceeded the legal limits 

13 into a river on a variety of dates. If you specify 

14 that these are the dates we want to talk about, and we 

15 want to know who was handling things, what was going 

16 on on those dates, you could have 40 topics. 

17 Now, if you're going to say, "Oh, you're 

18 limited to 10 topics," we'd have one topic. We'd say, 

19 "Oh, we want to know every time you leaked something 

20 illegally."

21 PROF. MARCUS: How do you define topic? 

22 Taking your example, and this is occurring to me as a 

23 problem of applying, so is it one topic to say we want 

24 to know about your data concerning release of whatever 
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1 you're interested in on the following dates, and you 

2 list 12 dates? Is that one topic or 12?

3 MR. BLAND: So the answer to that is that 

4 that's going to be what people are going to be 

5 fighting about, and going in front of judges, and 

6 briefing and arguing, and you're going to have a whole 

7 bunch of exciting new litigation over what is the 

8 definition of a topic, because -- I think that Ms. 

9 Barnes was speaking to this before, where she said, 

10 "Well, you know, one way of looking at it is we have a 

11 deposition notice of 23 topics, but then we have 

12 subparts where we're going into specific issues. Is 

13 that really 49 topics or 23 topics?"

14 Or similarly, you look at what Mr. Slavik 

15 was saying before lunch, where he said that there were 

16 -- he had a deposition that took three hours but had 

17 47 topics, and he said basically the topics were so 

18 specific that he was given extremely specific notice, 

19 "We want to know about this particular thing," and 

20 that the topics actually provided so much specificity 

21 they were able to get through them in a couple of 

22 hours.

23 Now, you could change that around. Instead 

24 of giving really extremely specific notice, you could 
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1 give a really broad topic, or you could have an 

2 exciting opportunity to go in front of a magistrate 

3 and fight about that.

4 But I think that if you go with something 

5 artificial, and say there's going to be this strict 

6 numerical limit, what you're going to do is you're 

7 going to push people exactly away from what you want, 

8 which is greater specificity, and you're going to 

9 create a new opportunity for there to be a lot of 

10 litigation over this idea of exactly how do you define 

11 a topic versus a subpart, and so forth.

12 I think this goes back to the point that 

13 Hassan Zavareei was talking about, which is do you 

14 want to have fights over the substance of issues, or 

15 do you want to have fights over the formalities of 

16 them. He's saying when he was getting pushed -- and, 

17 Judge Jordan, you were pushing quite strongly on this 

18 issue of, you know, why are you objecting to the idea 

19 of talking about the number of topics, and he was 

20 saying, well, look, I'm totally open to talking about 

21 what are the topics, so are the issues that we want to 

22 raise actually the important ones in the case, but 

23 talking about the number of them I feel like is going 

24 to get us into this, you know, dancing on the head of 
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1 the pin and formalities and so forth. I think that

2 -- I don't think -- and so I think that's a reasonable 

3 position from my standpoint.

4 The last thing I want to end with, though, 

5 is that there's been a good point that's been made 

6 here about how you want to have rules for everybody. 

7 And I will tell you that I've heard three people 

8 today, Mr. Parker, Mr. Schuck, and Mr. Conroy, 

9 essentially say in response to a question, "Well, do 

10 you tell people who the witness is going to be," say 

11 more or less some version of this, this is a rough 

12 paraphrase with my spin on it, but I think that this 

13 is effectively accurate, "We tell people who we think 

14 are good people, and if we think they're probably bad 

15 people, we don't tell them." 

16 Well, that's a very strange way to run the 

17 discovery rules. I mean, is it really that you're not 

18 telling bad people, or they may be not telling people 

19 who are really good lawyers who think they're going to 

20 go after their clients and get a big recovery for the 

21 plaintiffs? I mean, you cannot have a set of 

22 discovery rules which are saying, well, you know, this 

23 information is information to be disclosed to people 

24 where the plaintiffs' lawyers are ones who the defense 
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1 lawyers like and not other people. That's a really 

2 bad approach. Thanks very much. My time's up.

3 JUDGE BATES: Thank you very much. We 

4 appreciate it, Mr. Bland.

5 Next, Philippa Ellis.

6 MS. ELLIS: Yes.

7 JUDGE BATES: Ms. Ellis?

8 MS. ELLIS: Yes. Good afternoon, Mr. 

9 Chairman and committee members. Thank you for the 

10 opportunity to allow me to come and provide a comment 

11 and testimony today. My name is Philippa Ellis, and I 

12 practice in Atlanta with a small firm, and I represent 

13 both plaintiffs and defendants, and I have been on the 

14 receiving side and sending side of 30(b)(6) deposition 

15 notices. My career over 30 years has included 

16 handling tort litigation, commercial litigation, 

17 product liability, and I represent small businesses, 

18 very small businesses, as well as global enterprises. 

19 The proposed amendment -- and I have come 

20 here today from Atlanta as an individual who practices 

21 in the federal arena to ask that you reject the 

22 proposed amendment. I know you've worked very hard 

23 over the past few years, and thank you for your hard 

24 work on this important issue. However, there are many 
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1 problems that I see in terms of the unintended 

2 consequences of creating a complex web of discovery 

3 disputes and other collateral issues as a result 

4 specifically of the witness identity mandate.

5 The proposed amendment related to the 

6 witness identity mandate deprives entities of the 

7 right to choose witnesses who will speak on behalf of 

8 the corporation and focuses on the individual 

9 witness's personal background, in my experience. 

10 Oftentimes, as we are preparing witnesses, I think 

11 you've heard this from other individuals testifying 

12 today, it's a moving kind of situation where we find 

13 that the witness may not be the best suited. We've 

14 had one witness quit her employment because of the 

15 stress of even the preparation process. We've made 

16 changes.

17 So right now, the amendment is asking us to, 

18 either before or promptly after receiving the notice, 

19 to meet and confer, provide the identity of the 

20 witness and meet in good faith. So what happens --

21 JUDGE BATES: Do you have the same problem 

22 with respect to the proposed requirement that the 

23 parties must confer on the number and topics for 

24 examination?
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1 MS. ELLIS: The topics can make the process 

2 more efficient if we have an idea as to the scope of 

3 the topics. However, the number of witnesses, that 

4 can change up until the day of the time we are 

5 providing a witness to sit before opposing counsel. 

6 It's happened on many instances in my practice where 

7 we may not know until the day of whether --

8 JUDGE BATES: But that could be discussed 

9 between the two sides in terms of conferring on that. 

10 MS. ELLIS: It can be --

11 JUDGE BATES: What would be the harm in 

12 that?

13 MS. ELLIS: It can be discussed, depending 

14 upon the time. We get sometimes deposition notices 

15 five days before the date. But if the rule 

16 incorporated maybe a 30-day requirement for a 

17 deposition notice to be sent prior to the actual date, 

18 then the mechanism by which we can have a 

19 conversation, a meaningful conversation, a meaningful 

20 dialogue, would be something we could do.

21 But when we receive a notice five days in 

22 advance and we're scrambling to try to figure out 

23 who's the appropriate witness, there may be legacy 

24 litigation where we have witnesses who have retired or 
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1 died in some instances in litigation I've handled, and 

2 we're trying to educate the person who currently holds 

3 that witness's former position, trying to educate them 

4 on what the testimony should be or can be on behalf of 

5 the company, then that does create a problem.

6 PROF. MARCUS: When you get one -- you have 

7 received notices with as little as five days before 

8 the deposition?

9 MS. ELLIS: Yes.

10 PROF. MARCUS: Does that happen towards the 

11 beginning or towards the end of the pretrial 

12 litigation activity?

13 MS. ELLIS: Usually toward the end of the 

14 discovery period is where we're seeing that, and it 

15 appears to be where opposing counsel was trying to --

16 I guess realizes that discovery is almost at its 

17 conclusion, and they didn't cross all T's or dot all 

18 I's, and then we received this deposition notice. 

19 That's just my assessment on what possibly could be 

20 going on in my colleague's office across the street.

21 And the binding nature of the proposed 

22 amendment unfairly usurps the litigant's choice to 

23 identify who will testify on its behalf and invites 

24 the serving party to interpret the amendment as a 
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1 license to participate in the 30(b)(6) witness 

2 selection process. I heard one of my colleagues 

3 earlier talk about the bride who thought 100 was a 

4 small wedding, and the groom talking about how 50 was 

5 a small wedding, the difference in opinion, the

6 difference in interpretation of even the scope or what 

7 that rule means. So what does it look like from a 

8 practical standpoint? 

9 If we are to meet and confer as it relates 

10 to the identity of the witness, and I provide the name 

11 of a witness, but then I begin the preparation 

12 process, because I'm supposed to do this before or 

13 promptly after the subpoena arrives, I will not have 

14 time to actually go through what we typically go 

15 through to determine who is the appropriate witness.

16 So then I begin the preparation process and 

17 find that this witness is going to black out under 

18 stress, or this witness leaves their employment during 

19 the process, which has happened, or this witness 

20 really doesn't have the knowledge that is needed. So 

21 then once we change gears, does that mean every time 

22 we change gears I have to go back and talk to opposing 

23 counsel? 

24 Also, as it relates to -- meet and confer 
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1 implies -- at least when I participate in a meet and 

2 confer, it is not just a one-sentence meeting or a 

3 one-word meeting. So if I provide the name John Doe, 

4 and opposing counsel is asking, "Well, what's the job 

5 title? Why did you select them," I would think that's 

6 a natural next step in a meet and confer, and that 

7 would require me as counsel to divulge attorney work 

8 product and violate the attorney-client privilege in 

9 most all of the instances I can think of.

10 JUDGE BATES: Ms. Ellis, do you normally 

11 provide the name of the witness?

12 MS. ELLIS: It depends. It depends on -- if 

13 we are at the point where we are able to identify a 

14 witness, yes, Your Honor. But if we are still trying 

15 to figure out -- and most times this is when opposing 

16 counsel has sent a subpoena that includes broad 

17 subjects, broad scope of topics, we're trying to 

18 figure out in good faith who is the most appropriate 

19 witness.

20 JUDGE BATES: But if you know the witness a 

21 day or two or three in advance, you would normally 

22 provide that information to the other side?

23 MS. ELLIS: Yes. I see no problem with 

24 doing that.
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1 PROF. MARCUS: And do you --

2 MS. ELLIS: But that's not norm. That is 

3 typically -- and that would be in pattern litigation. 

4 Not all of my cases are pattern litigation. Pattern 

5 litigation is fairly simple. Plaintiff's counsel, 

6 they know who the identity is probably before they 

7 even serve the subpoena.

8 PROF. MARCUS: And you --

9 JUDGE BATES: That may be true.

10 MS. ELLIS: Thank you, Your Honor.

11 PROF. MARCUS: Am I right to guess that you 

12 would favor a command to the serving party to confer 

13 with you about topics?

14 MS. ELLIS: A command as in a mandate?

15 PROF. MARCUS: Well, as in the amendment.

16 MS. ELLIS: I think the amendment, if the 

17 word -- instead of the word "must," if the word 

18 "encourages" -- if you encourage the parties to meet 

19 and confer versus the parties must meet and confer, I 

20 think that incorporates best practices. It's the 

21 mandatory aspect of it that makes it, I think, a 

22 bedrock of disputes, and then as a result, that 

23 increases the cost of litigation. It wastes Your 

24 Honors' time, and it just is very problematic.
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1 JUDGE BATES: Ms. Ellis, thank you --

2 MS. ELLIS: Yes.

3 JUDGE BATES: -- very much. We need to turn 

4 to the next witness.

5 MS. ELLIS: And thank you for the 

6 opportunity.

7 JUDGE BATES: We appreciate it.

8 Peter Fazio is next.

9 MR. FAZIO: Yes, thank you. Good afternoon. 

10 My name is Peter Fazio, and I'm from the law firm of 

11 Aaronson Rappaport Feinstein & Deutsch. We are a 

12 litigation-based firm based out of New York City. 

13 Over the last 17 years, I've had the honor and 

14 privilege of getting to travel across the country, 

15 appearing in both state and federal courts, 

16 representing mostly defendants in product liability 

17 litigation and mass torts.

18 Over my career, I've had the opportunity to 

19 defend dozens of 30(b)(6) depositions, and I want to 

20 use as an example throughout my statement today one 

21 case that I had, actually with Mr. Slavik, who's here 

22 today, which resulted in 10 corporate depositions as 

23 well as 31 fact depositions from that same employer.

24 I want to use that as an example today 
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1 because I personally believe that this committee has 

2 done such great work, and I had a high school teacher 

3 that used to tell me it's better -- it's better to 

4 rise to the occasion when you have the opportunity to 

5 do something great, and I think all of you, as well as 

6 us, have the opportunity to do something great, which 

7 is to actually correct the 30(b)(6) rule where there 

8 are deficiencies.

9 I've heard today a lot of agreement on the 

10 fact that there's really not an issue about meeting 

11 and conferring, and I've heard today that many 

12 plaintiffs, or some plaintiffs, don't really care who 

13 the deponent is going to be. Of course, we believe, I 

14 believe, that providing the deponent's name is not 

15 necessary. 

16 However, I can say there are problems with 

17 the rule that we're overlooking, and these problems is 

18 what we see every day, and I believe the magistrate 

19 brought up an example of seeing motions about 

20 disputes, whether the number of topics or the scope of 

21 topics. That's every day, real-world practice, which 

22 is why I believe the committee should consider, and I 

23 know it's a lot of hard work, but going back to the 

24 drawing board to find tools that assist practitioners 
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1 and courts in streamlining the 30(b)(6) process; 

2 specifically, presumptive number of topics permitted 

3 for Rule 30(b)(6) depositions, a straightforward 

4 statement of how 30(b)(6) depositions count toward the 

5 presumptive limits on the number and duration of 

6 depositions --

7 JUDGE JORDAN: Mr. Fazio, why don't you 

8 specifically see if you can meet for us the assertion 

9 that we've heard here repeatedly in one form or 

10 another that saying you're presumptively limited to X 

11 number of topics is going to be just a distraction, 

12 lead to broader topics, less specificity, takes us in 

13 the wrong direction?

14 MR. FAZIO: Yeah.

15 JUDGE JORDAN: You know, why is saying a 

16 presumptive number going to be a help and not a hurt? 

17 What's your take on that?

18 MR. FAZIO: It's going to be a help, Your 

19 Honor, because putting a limitation in is something 

20 where both litigants on both sides of the V can strive 

21 toward actual productive meet and confer. One of my 

22 first federal cases was before Judge Jack Weinstein, 

23 who had a page limit on briefs. And as a young 

24 lawyer, I said, "Oh, my goodness, how am I going to do 
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1 this Daubert motion in 15 pages," right?

2 JUDGE JORDAN: Wait, hold on. This is the 

3 interrogatory analogy in another guise, page limit. 

4 The number of topics, it occurs to me, is not like a 

5 page limit, is not like interrogatories, necessarily, 

6 either, because it doesn't constrain you in producing 

7 in writing, nor does it constrain the other side in 

8 producing something in writing. It is merely the 

9 opening salvo and the platform from which questions 

10 begin to be asked.

11 MR. FAZIO: Yeah.

12 JUDGE JORDAN: So if you say you've got X 

13 number of topics, and they stay within those topics, 

14 if they frame the topics very broadly, I mean, that's 

15 the argument we're hearing from them, and I'm curious 

16 to know why that doesn't have traction. Why do you 

17 think that's not actually a matter to be concerned 

18 about?

19 MR. FAZIO: Well, Your Honor, because if we 

20 start with a presumptive limit, which for some reason 

21 has this connotation of being a taboo process in the 

22 30(b)(6) notice, I would submit that when we meet and 

23 confer -- let's say the number's 25. Let's say the 

24 case I had with Mr. Slavik, who served notices well 
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1 over 100 topics, when Mr. Slavik showed up, and he 

2 arrived late in the case, think about the practicality 

3 of it.

4 Can anyone cover 100 topics in a seven-hour 

5 limit? Right? And Mr. Slavik, again, while we don't 

6 always agree, was able to look at that notice and say, 

7 "I really can't cover these 100 topics, so I have two 

8 options. Get through as many as I can, or ask for 

9 more time," which is what he tried to do. But Your 

10 Honor --

11 JUDGE JORDAN: How does a presumptive limit 

12 meet that if --

13 MR. FAZIO: It focused --

14 JUDGE JORDAN: What you're describing is a 

15 meet and confer that leads to a more sensible result.

16 MR. FAZIO: I think the presumptive number 

17 is a starting point, just like when Mr. Slavik came to 

18 me, if the number was 25, and said, "Peter, I really 

19 have 50," I can tell you all now I wouldn't appear in 

20 your courtroom going, "We have this big disagreement 

21 over 25 or 50." We would work through it.

22 But not having that number, 100 topics, if I 

23 take the time to prep one witness on 100 topics, and I 

24 spend an hour, an hour a topic, to prep that witness 
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1 because I have an obligation --

2 JUDGE JORDAN: You would --

3 MR. FAZIO: I would?

4 JUDGE JORDAN: -- confer with Mr. Slavik, 

5 right?

6 MR. FAZIO: I would confer with Mr. Slavik, 

7 which I did in that very case, which resulted in 10 

8 corporate rep depositions, 31 fact depositions, some 

9 of those going longer than 13, 14, 15, 22 hours for 

10 one witness.

11 PROF. MARCUS: So those all exceeded the 

12 limits in the rules for those things, and they 

13 occurred anyway.

14 JUDGE BATES: With judicial permission?

15 MR. FAZIO: Well, after a while there was 

16 judicial permission, and then the judges shut that 

17 process down. Mr. Slavik did come back for another 

18 attempt, but after 21 hours, we won that argument.

19 JUDGE BATES: But presumably the judge made 

20 an assessment of what was warranted in the case.

21 MR. FAZIO: No, because we did not fully 

22 brief the issue, because the misnomer that we look at 

23 metrics from a filing of the motion practice, when 

24 we're encouraged not to file motions, many magistrates 
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1 say send letters, don't file motions, and then we get 

2 docket entries. It's an unfair characterization that 

3 the court somehow ruled on a fully briefed issue.

4 MR. SELLERS: So what's the number? What's 

5 the number you would recommend?

6 MR. FAZIO: Listen, look. Again, everybody 

7 has struggled with that issue. I don't think I 

8 struggle with it. I think if we start out at 25, with 

9 the understanding that there are more complex cases 

10 that may require additional topics to be added, I 

11 truly believe the initial conference is a great place 

12 to start that conversation, and I've had magistrates 

13 across the country, as well as district court judges, 

14 take an extremely active role from day one in that 

15 process, and these are not snowballs in Texas.

16 When the court assists the parties in that 

17 process, I don't get these types of notices, and I 

18 think it's because when someone like Mr. Slavik and I 

19 can sit down and talk about it before he serves the 

20 notice, I don't get 150 topics.

21 MR. SELLERS: So what makes you think 25 is 

22 the right number, it's not too high, not too low?

23 MR. FAZIO: Perfect example, sir. Twenty24 five is the perfect number because in that case that I 
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1 was handling with Mr. Slavik, after 41 depositions 

2 were taken, they provided their experts with three 

3 transcripts. The three transcripts they provided were 

4 the three corporate representatives that we said would 

5 be the most knowledgeable. So when I say 25, they 

6 literally covered maybe seven topics with each witness 

7 on a incredibly complex case that spanned probably 

8 about 10 years of vehicles.

9 So again, you know, my time is way over, but 

10 I do want to just, again, stress the importance of 

11 trying to use this opportunity to actually address 

12 issues that truly exist, as opposed to creating a 

13 toolbox or a set of tools that, to most practitioners, 

14 would have little to no effect on resolving the real 

15 problems. Thank you.

16 JUDGE BATES: Thank you very much, Mr. 

17 Fazio.

18 Now comes for my toughest task of the day. 

19 The next witness is Mark Kosieradzki.

20 MR. KOSIERADZKI: Very good. I am Mark 

21 Kosieradzki. I'm from Minneapolis. I'm a founder of 

22 a small law firm. We represent almost exclusively, 

23 but not exclusively, victims of elder abuse: nursing 

24 home cases, families whose grandmother's been raped, 
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1 fathers who have been drugged into oblivion till they 

2 die, people left in their waste until their body 

3 decomposes, cases that are very important to the 

4 families.

5 And we find that those cases are almost 

6 universally arising from systemic issues in nursing 

7 homes, and 30(b)(6) is the most efficient tool to 

8 identify why something happened, because the "why" is 

9 important to our family to find out what, and what 

10 gave rise to it. We don't even know who runs the 

11 nursing home because the licensee never has anything 

12 to do with it. It's a series of businesses run 

13 together.

14 So we use 30(b)(6), and I can speak from 

15 personal experience that 30(b)(6) works. The problems 

16 that I see with 30(b)(6) are lawyers who don't 

17 understand the rule or choose not to follow the 

18 jurisprudence. Having spent more than -- you know, 

19 more time than a rational person would studying the 

20 rule and writing about it, and having taken hundreds 

21 of 30(b)(6) depositions in the 39 years of practice, I 

22 can tell you, it really works when the lawyers follow 

23 the rules.

24 JUDGE JORDAN: So is no change --
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1 MR. KOSIERADZKI: Yes.

2 JUDGE JORDAN: -- no change needed?

3 MR. KOSIERADZKI: I'm happy with the rule 

4 the way it stands, because of the jurisprudence 

5 interpreting it. I don't oppose the changes. I do 

6 have a concern that I'd like to raise, and I'm a big 

7 fan of meet and confer. I think that the more lawyers 

8 work together professionally, that breaks down a lot 

9 of the animosity that we see out there. 

10 I have some concern that if we have a 

11 presumption of a problem before we start, it's 

12 inviting a problem. And I'm very concerned with this 

13 concept of presumptive limits. I can tell you I've 

14 done 30(b)(6)s all over the country in state and 

15 federal courts, and what I've learned is in our 

16 district in Minnesota, I actually have less of a 

17 problem of people not being prepared because most of 

18 the federal magistrates follow the rule of Prokosch v. 

19 Catalina Lighting, which requires identification of 

20 issues in painstaking specificity.

21 So now when we go to a presumptive limit, 

22 it's presumptive limit of what? Are we saying, okay, 

23 we're going to talk about how the database is 

24 structured, or how the licensing is structured on this 
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1 nursing home chain? But under Prokosch I'm going to 

2 say, "I want to learn about the email. Tell us about 

3 what servers are, what archival software there was. 

4 What are the historical softwares? And what are the 

5 different ways to access that information so we can 

6 find the most proportional way to do it?" Well, is 

7 that five topics or is that one?

8 JUDGE BATES: I know we have a problem 

9 defining what "topics" means. But if there were a 

10 presumptive limit of 25, as Mr. Fazio, the last 

11 witness, suggested, how would that affect your 

12 practice? Do you have a lot of cases in which you 

13 have more than 25 topics in a Rule 30(b)(6) notice?

14 MR. KOSIERADZKI: Thank you. Well, it 

15 depends on how you define it. Typically, I won't have 

16 25 general subject matters, but I will find through 

17 the interrogatory practice that people will say, "I'm 

18 looking for the five people who were on staff here 

19 that day," and in the gamesmanship that happens in the 

20 trench, that tries to get defined as five different 

21 questions. And I find that to be a problem.

22 I think the real thing that drives these 

23 cases is how many -- or the numerical numbers, how 

24 many issues there are that have to be dealt with, 
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1 legal issues, how many factual disputes actually 

2 exist, and then the elephant in the room is how much 

3 stuff is being withheld, and you're going to need 

4 depositions to vet the objections so the court can 

5 have a legitimate basis on ruling on the objections.

6 I see I'm done, so --

7 PROF. MARCUS: Wait, can I --

8 MR. KOSIERADZKI: -- thank you. 

9 PROF. MARCUS: Before you go, I know you've 

10 written a very thorough book on 30(b)(6). I asked 

11 someone this morning, "Is there a state that has a 

12 limit on topics in its statute or rule?" I wonder if 

13 you know.

14 MR. KOSIERADZKI: To my knowledge, there 

15 isn't. Forty-eight states are either identical or 

16 substantially similar to the federal rule. California 

17 has a person with most knowledge standard. New York's 

18 courts of general jurisdiction do not have 30(b)(6). 

19 Their commercial courts adopted it in 2015.

20 What I've just learned recently, because I 

21 had another book, was that the time limits on 

22 depositions, though, change from state to state.

23 JUDGE BATES: All right. Thank you.

24 MR. KOSIERADZKI: Thank you.
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1 JUDGE BATES: We've got one more question.

2 JUDGE ERICKSEN: I want to thank you for the 

3 book.

4 MR. KOSIERADZKI: Thank you.

5 JUDGE ERICKSEN: And then just real quickly, 

6 I didn't see in there a crying need for disclosure of 

7 the identity of the witness beforehand. I didn't 

8 recall that coming up in the book or at our initial 

9 meeting which, again, thank you for attending.

10 MR. KOSIERADZKI: I am not aware of any 

11 jurisprudence on timing of disclosure of witnesses. I 

12 have thoughts on it, but my time is up on it, so thank 

13 you. 

14 JUDGE BATES: Thank you very much.

15 Next up, Altom Maglio.

16 MR. MAGLIO: Thank you very much, and I'd 

17 like to start out by confessing that I have written no 

18 books on this topic.

19 (Laughter.)

20 MR. MAGLIO: I am actually just --

21 JUDGE BATES: Well, then you can sit down.

22 MR. MAGLIO: That was easy, then. I am 

23 actually just an attorney, a plaintiffs' contingency 

24 fee attorney, from Sarasota, Florida. I represent 
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1 individuals, individual people, in suits against 

2 corporations. And why 30(b)(6) depositions are 

3 extremely important to me and my practice and my 

4 clients is because they serve to level the playing 

5 field.

6 When my client is deposed and sits there and 

7 answers questions, my client's clearly speaking for 

8 themselves, and binding themselves, and they're the 

9 ones testifying, and there's no doubt or question 

10 about that. On the other hand, when I'm taking an 

11 employee's deposition of a corporation, whether 

12 they're speaking for the corporation is kind of up to 

13 the corporation in retrospect. They get to decide 

14 down the road if that person was speaking for them 

15 when they spoke.

16 PROF. MARCUS: If they're talking about 

17 something within the scope of their employment, why is 

18 that true?

19 MR. MAGLIO: Well, because they weren't 

20 speaking for the corporation when they said that, they 

21 didn't know what they were talking about.

22 PROF. MARCUS: Well, what is it that keeps 

23 it out? It's not a hearsay objection. It's not a 

24 personal knowledge. What's the objection that keeps 
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1 it out?

2 MR. MAGLIO: I'm not speaking as far as 

3 evidence. I'm speaking as far as their ability to 

4 bind the corporation and speak for the corporation. 

5 It's not the corporation who's talking. It's just one 

6 of the employees who wasn't authorized to say that, 

7 and when they were testifying they weren't speaking --

8 PROF. MARCUS: You mean you're doing 

9 discovery for some purpose other than getting 

10 evidence?

11 MR. MAGLIO: No, when I'm gathering evidence 

12 in the case, if that employee speaks to a certain 

13 thing that the corporation retroactively, 

14 retrospectively doesn't agree with, that person was 

15 speaking out of school and, you know, that's the 

16 position that will be taken down the road in that 

17 trial.

18 JUDGE JORDAN: Can I ask you, in your 

19 written submission, you said that it's a, quote, 

20 "standard practice" to identify a witness in advance, 

21 and then you also say that codifying that would help 

22 alert the noticing party when a problematic 

23 representative selection is made. 

24 That prompts two questions. One, is it 
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1 really the standard practice in your practice field 

2 that a 30(b)(6) witness identification is always made? 

3 And second, if you take the position that this would 

4 allow you to do something when a, quote, "problematic 

5 representative selection" is made, are you not doing 

6 precisely what the defense bar says ought not to 

7 happen; that is, demanding a seat at the table for the 

8 selection of their representative?

9 MR. MAGLIO: So going to the first question, 

10 the vast majority of the time, thinking back on 

11 30(b)(6) depositions, the vast majority of the time 

12 the identity of the witness is disclosed, and when the 

13 witness's identity is not disclosed is typically the 

14 ones that tend to be the more problematic depositions. 

15 And I believe one of the prior witnesses testified 

16 about the person being from a different time period in 

17 the problem with the product, I think it was, or 

18 whatever it was, that their employment was not at the 

19 time that was at issue, and bringing that to the 

20 attorney on the other side's attention, and then they 

21 pointed out no, they actually were the right person.

22 The examples that I've run into that come to 

23 mind, and it's a fair point, one issue I have is it's 

24 not so much a witness who doesn't know the answer. 
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1 It's an evasive witness or a witness who is almost a 

2 professional witness. That is an alert to me. That 

3 has happened, you know, a number of occasions, and 

4 they're always problematic depositions.

5 JUDGE JORDAN: You wouldn't know that in 

6 advance, though, right, with the identification of the 

7 witness?

8 MR. MAGLIO: I would respectfully say if 

9 it's a certain lawyer who's being identified as a 

10 witness, yes. 

11 JUDGE JORDAN: And if that's the case that 

12 you know, "I'm going to have a problem with this 

13 witness," is it your position, then, that the 

14 plaintiff in that circumstance, the requesting party, 

15 should have the right to say, "That's the wrong 

16 person, I don't want that person, that's an evasive 

17 person?"

18 MR. MAGLIO: Your Honor, it's more to warn 

19 the defense that if that witness is evasive, if that 

20 witness is not going to answer the questions, that 

21 this will have to go to the Court, and make adequate 

22 preparations and an adequate record for that. It's 

23 not a good situation.

24 JUDGE JORDAN: So it would become a 
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1 negotiation, in effect, over who the corporate 

2 representative should be?

3 MR. MAGLIO: Actually, not who the corporate 

4 representative should be, but the responsiveness to 

5 the questioning of the corporate representative. 

6 Thank you very much.

7 JUDGE BATES: Thank you, sir. We appreciate 

8 it.

9 Next witness, John Guttmann. Please.

10 MR. GUTTMANN: Good afternoon. 

11 JUDGE BATES: Good afternoon.

12 MR. GUTTMANN: Thank you for the opportunity 

13 to speak about the proposed amendments. I'm a 

14 shareholder here in Washington of Beveridge & Diamond. 

15 I've been doing civil litigation for 39 years, plus. 

16 It astonishes me to think about that, but it's true. 

17 All my work is in the environmental and toxic tort 

18 areas, and I mention that because listening to the 

19 other witnesses, I think it is important to recognize 

20 that things can vary depending upon the area of 

21 practice, the area in which the case arises.

22 I represent both plaintiffs and defendants 

23 in the environmental area. I'm also a national 

24 director of DRI. Although others have spoken for DRI 
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1 as an entity, I'm here speaking as a practitioner here 

2 in Washington.

3 PROF. MARCUS: And I take it from your 

4 introductory comments that one of your points is that 

5 an across-the-board numerical limit really doesn't fit 

6 the various kinds of cases that come to the federal 

7 courts.

8 MR. GUTTMANN: In terms of the number of 

9 30(b)(6)s?

10 JUDGE BATES: Number of topics.

11 PROF. MARCUS: No, the number of topics.

12 MR. GUTTMANN: Oh, the number of topics. So 

13 I actually think -- here's my view on this. I think 

14 there should be a presumptive limit. And the question 

15 arose earlier, "Why? Doesn't that lead just to 

16 broader topics, fuzzier stuff?" With all respect, I 

17 actually think the opposite is what would happen with 

18 presumptive limits. They can always be changed, 

19 obviously, for a specific case.

20 But I'll give you the example of the limit 

21 on 10 depositions under the rules. That requires 

22 lawyers to think about which depositions are 

23 important. And I think that lawyers function best 

24 when they have to make decisions about what really 
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1 matters, what's important to the case, and presumptive 

2 limits will do that.

3 JUDGE JORDAN: Well, I'm having trouble 

4 articulating this in a way that's effective, I guess. 

5 It seems to me that there's a category error here, 

6 because people are equating all limits as having the 

7 same effect. I can understand that if you've got 10 

8 depositions, you'll be careful with how you use your 

9 time in 10 depositions. And if you've got five pages 

10 to brief something, you'll be careful with your five 

11 pages.

12 But if your aim and object is to get a 

13 certain amount of information which will be -- your 

14 requests will be the platform for your questioning at 

15 a deposition, you will not be -- you will attempt 

16 naturally, will you not, to cast that as broadly as 

17 you possibly can to capture as much information as you 

18 can, so that when you go to the Court and argue, "No, 

19 this was within the scope of what I asked?"

20 If you're limited, that doesn't mean you'll 

21 be more specific and more careful. It means you'll be 

22 broader because you're trying to capture as much as 

23 you can. That seems to be the logic of what 

24 plaintiffs are saying to us, and that has some 
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1 resonance. I'm struggling with the idea that a 

2 presumptive limit will not result in broader topic 

3 designation. Help me through that, if you can.

4 MR. GUTTMANN: Well, I think the important 

5 thing is you have to look at it in the context of the 

6 meet and confer process. Mr. Slavik gave the example, 

7 I believe it was him, before lunch of a deposition he 

8 noticed with, I don't know, 130 topics or something 

9 like that, each narrow and discrete, and then he went 

10 through the deposition in three hours.

11 PROF. MARCUS: Forty-seven topics.

12 MR. GUTTMANN: Whatever it was. If he came 

13 to me with that, my reaction would be, "I want to 

14 think about it, but it sounds like a really good 

15 idea." Good lawyers work things out.

16 JUDGE JORDAN: That's a great example, 

17 actually, because if you said you've got a presumptive 

18 limit of 10, then instead of getting 47 carefully 

19 targeted, you'd get 10 much broader things, and 

20 instead of having a two- or three-hour deposition, you 

21 might have a much longer deposition with more 

22 objections because you'd have a less prepared witness. 

23 That's, I take it to be, the argument coming from the 

24 other side. Why is that wrong?
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1 MR. GUTTMANN: Well, first of all, I don't 

2 think the issue of preparing the witness has anything 

3 to do with it. To me, that's a completely separate 

4 question.

5 JUDGE JORDAN: How can it not have something 

6 to do with it, Mr. Guttmann, if the notice and the 

7 topic designations are what are, in fact, used to 

8 prepare the witness?

9 MR. GUTTMANN: Right, but the idea that 

10 lawyers producing witnesses don't have them prepared 

11 is a function of the behavior of lawyers, not the 

12 scope of the notice. You're hearing that lawyers 

13 don't do that today in some cases. The reality is in 

14 my practice it does not come up very much, because the 

15 lawyers on both sides are good lawyers, and they work 

16 these things out.

17 Patrick Regan testified before lunch. He 

18 and I had a complex toxic tort case that went on for 

19 five years. We didn't burden the magistrate with a 

20 single discovery dispute in five years. Why? Because 

21 he's a good, reasonable lawyer, and I think I am as 

22 well. Not everybody is. There are lawyers in my 

23 practice who will go out of their way to create 

24 disputes, and here's why, because in the environmental 
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1 area, there are provisions for attorneys' fees in 

2 citizen suits, and there are lawyers there who would 

3 create disputes in order to create a basis for a 

4 larger fee. I see it all the time.

5 JUDGE JORDAN: Does it, the fact that it 

6 seldom comes up in your practice, if I heard you 

7 right, indicate that presumptive limits -- they might 

8 help in certain cases, but in the mine-run of cases it 

9 wouldn't make that much difference in your practice?

10 MR. GUTTMANN: Well, I think that my answer 

11 to that would be somebody said this morning you 

12 shouldn't write rules for the lunatic fringe. Most 

13 lawyers work things out. Most magistrates will say 

14 work this out. But there are unreasonable lawyers out 

15 there, and they are the ones that really have to be 

16 focused on, in my view, because they're the ones that 

17 drive us to magistrates, take up the Court's time, and 

18 drive up cost for my clients.

19 JUDGE BATES: Let me ask you a quantitative 

20 question as we close your testimony out. You've got a 

21 specific area of practice, the environmental area of 

22 practice.

23 MR. GUTTMANN: Yes.

24 JUDGE BATES: But you've been on both sides 
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1 of the V.

2 MR. GUTTMANN: Yes.

3 JUDGE BATES: And from your experience, if 

4 there were a presumptive limit, what would be a 

5 presumptive limit on the number of topics that would 

6 reflect the reality of that practice?

7 MR. GUTTMANN: You know, it's just like why 

8 is 10 the right number for depositions.

9 JUDGE BATES: Well, I'm asking --

10 MR. GUTTMANN: I know.

11 JUDGE BATES: -- based on your experience in 

12 that area of practice.

13 MR. GUTTMANN: Based on my experience, the 

14 number 25 was raised earlier. I think that's a 

15 perfectly reasonable number. It can be raised in a 

16 specific case if it's appropriate. And again, I'm all 

17 for a lot of specific topics if they're going to make 

18 the deposition and the discovery process as a whole 

19 more efficient. So that seems to me to be an 

20 eminently reasonable number.

21 JUDGE BATES: Thank you, Mr. Guttmann. 

22 MR. GUTTMANN: Thank you very much for the 

23 time.

24 JUDGE BATES: We appreciate your testimony.
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1 Next up, Edward Blizzard. Mr. Blizzard, 

2 please.

3 MR. BLIZZARD: Good afternoon. Thank you 

4 for allowing me the opportunity to speak to you today. 

5 I have my own practice in Houston, Texas. As of this 

6 month, I'll have been practicing law for 41 years. I 

7 started my legal life as a defense lawyer and about 20 

8 years ago was fully converted to plaintiff-ism, and so 

9 I've been a plaintiffs' lawyer for 28 years. And for 

10 most of that those years, I've been specializing in 

11 medical products and pharmaceutical litigation.

12 I represent individuals who have been harmed 

13 by pharmaceuticals or medical products, and I 

14 initially had more of a state court practice, but as 

15 things have developed over the years, that's evolved 

16 more into an MDL practice, and I've been on numerous 

17 PSCs and executive committees, and even been one of 

18 the leaders in one of the litigations, one of the 

19 MDLs.

20 So what brought me here to Washington, D.C. 

21 was Mr. Pratt's testimony from Phoenix. I've known 

22 Mr. Pratt for years, primarily as a lawyer defending 

23 Bristol-Myers Squibb in litigation when he was at 

24 Shook Hardy, but then he became general counsel for 
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1 Boston Scientific and has recently retired. I respect 

2 Mr. Pratt, and I'm just here to bring some context to 

3 what he testified was an abuse that occurred in the 

4 pelvic mesh litigation. 

5 In fact, you know, I think the issue with 

6 Mr. Pratt's testimony and my bringing some context to 

7 us illustrates the danger of, you know, deciding 

8 things based upon one side's parade of horribles. So 

9 Mr. Pratt talked about over 100 topics were listed 

10 after 36 witnesses were deposed in the pelvic mesh --

11 PROF. MARCUS: My recollection is not just 

12 thousands but tens of thousands of plaintiffs exist in 

13 those cases in West Virginia, is that correct?

14 MR. BLIZZARD: There are. Just in the 

15 Boston -- there's six MDLs that Judge Goodwin is 

16 supervising. Just in the Boston Scientific litigation 

17 there were 26,000 women, so the depositions pertained 

18 to 26,000 women. There were 13 different Boston 

19 Scientific products, so there was a lot of ground to 

20 cover. There were 36 witnesses, individual witnesses, 

21 that had been deposed previously, but then there was 

22 an issue that came up regarding some of the 

23 polypropylene resin coming from China, and so actually 

24 the focus of the 30(b)(6) was related to that.
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1 There was motion practice on this. There 

2 were meet and confers. There couldn't be an 

3 agreement, so a protective order was litigated in 

4 front of Judge Eichert (phonetic), and I've attached 

5 Judge Eichert's ruling as part of my written comments. 

6 And what she did was not impose any kind of limits on 

7 the topics, as was suggested would be a solution by 

8 Mr. Pratt. In fact, what she did was --

9 JUDGE JORDAN: That was not suggested by him 

10 at the time, though.

11 MR. BLIZZARD: No.

12 JUDGE JORDAN: I think your letter actually 

13 is careful to say that. So can we draw any conclusion 

14 from the fact that she didn't grant that relief when 

15 nobody was asking for it in that particular instance?

16 MR. BLIZZARD: I think what he was 

17 complaining about was the breadth of the deposition 

18 notice and that they had already given a substantial 

19 amount of testimony. So I think what is fair to say 

20 is that there was an argument about the breadth of the 

21 deposition notice, considering what discovery had 

22 already occurred.

23 JUDGE JORDAN: Given the extraordinary 

24 nature, as you've already described, of this pelvic 
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1 mesh litigation, isn't it sort of the classic case of 

2 the outlier, where you don't craft the rule with that 

3 outlier in mind, you craft the rule for the general, 

4 average kind of case you're going to deal with, and 

5 you trust good lawyers and good judges to craft 

6 specialized procedures when you hit the 26,000 

7 plaintiff class action?

8 MR. BLIZZARD: I agree with that. I agree 

9 with that, Your Honor. I do think what it illustrates 

10 is that here there's always two sides to the story, 

11 right, as to whether the deposition notice was too 

12 broad, or there were too many topics, and so it's 

13 really important to have some context for why that 

14 happened in that pelvic mesh litigation, and that's 

15 part of what I'm bringing here today.

16 Also, I've been here all day, and I've 

17 listened to a lot of the comments, and so I'd just 

18 like to say that I do support meet and confer. I do 

19 it in every one of my cases. I do support the 

20 disclosure of the identity of the witness.

21 JUDGE BATES: What about meet and confer as 

22 to the identity of the witness?

23 MR. BLIZZARD: That's fine, Your Honor. I 

24 don't have a problem with that. I think the actual 
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1 specific requirement of disclosure would be better. 

2 In all the years that I've been practicing, I think 

3 it's rare -- although it happened to me last week, 

4 it's rare for defendants to refuse to disclose the 

5 identity to me.

6 But I think a disclosure of the identity of 

7 the witness in a reasonable time period before is the 

8 best practice that's out there now, and I see no 

9 reason not to codify that in the rule. 

10 So I see my time's up, and --

11 JUDGE BATES: Any other questions for Mr. 

12 Blizzard?

13 JUDGE ERICKSEN: Would that reasonable time 

14 be the 30(b)(1) time?

15 MR. BLIZZARD: You know, I've seen some of 

16 the proposals and heard some of the discussion. I 

17 don't have personally -- I personally don't have a 

18 problem with a 30-day notice, and my suggestion would 

19 be seven days before the deposition. If you've got a 

20 30-day notice, seven days before, disclose the 

21 identity of the witness.

22 JUDGE BATES: Thank you.

23 Our next witness, Andrew Trask.

24 MR. TRASK: Thank you, Your Honor, and thank 
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1 you for allowing me the opportunity to speak, and 

2 because I've watched you do it again, all of you, 

3 thank you all so much for being so prepared by reading 

4 all of our comments ahead of time before we talk. And 

5 because I know you have read all of our comments, I 

6 thought what I would do is two things. I've heard a 

7 lot of questions about each attorney's practice, so I 

8 thought I would offer up what my practice is, and then 

9 I would, if there was time remaining, offer up some 

10 context for my comments but not simply rehash them.

11 My practice over the last 20 years has been 

12 in the defense area. I think I've taken two 30(b)(6) 

13 depositions in that time, one for a pro bono case and 

14 one for a patent dispute that I was brought onto, but 

15 I primarily am experienced in defending class actions 

16 and preparing and defending 30(b)(6) witnesses. I 

17 would say I've done it probably between 20 and 40 

18 times. I actually was on that case that Peter Fazio 

19 discussed, although I was not in charge of the 

20 30(b)(6) depositions. He was. But I can speak to 

21 some of what he was going through.

22 In general, my experience has been that when 

23 we receive a 30(b)(6) witness -- or a 30(b)(6) notice, 

24 as defense counsel, the first thing we do and the 
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1 first thing I do is to pick up the phone, after 

2 talking to my client about what we can do to respond, 

3 and pick up the phone again and talk to opposing 

4 counsel. And I do this because, very often, there are 

5 numerous topics. Sometimes they're described with 

6 specificity. Sometimes they're not.

7 And I try to walk through what topics will 

8 actually be addressable, what we can actually provide 

9 for information, if there are alternative means of 

10 providing that same information that might be more 

11 appropriate in the circumstance, and anything else 

12 that might smooth the amount of time that it's going 

13 to take to prepare and to take a 30(b)(6) deposition.

14 JUDGE BATES: Is that usually a successful 

15 process?

16 MR. TRASK: Yes, usually. I would say not 

17 always. I would say 80 percent of the time, and 20 

18 percent of the time we're either dealing with counsel 

19 who, for one reason or another, have a tactical reason 

20 that they're being obstreperous, or are simply 

21 inexperienced and don't quite trust the process yet. 

22 But definitely when I'm up against people of the 

23 caliber of whom are testifying today, it's not really 

24 a problem.
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1 Once I've done that, we figure out who the 

2 witness is, because then we have a better idea of what 

3 the topics are, and we try and get, as early as 

4 possible, a definite lock on who that witness or 

5 witnesses are going to be. I have been in many cases 

6 where we've split a 30(b)(6) notice up among anywhere 

7 between three and I believe Peter testified to -- Mr. 

8 Fazio testified to 10 witnesses to cover the number of 

9 topics that were offered, and the level at which we 

10 thought they would have to be testifying on each.

11 We ordinarily, at this point, do not 

12 disclose the identity of those witnesses except under 

13 certain circumstances. Those circumstance are as 

14 follows. If the witness has already been a 30(b)(1) 

15 witness in the case, or is already noticed as a 

16 30(b)(1) witness in the case, we'll let opposing 

17 counsel know, because we want to be able to arrange 

18 for those to happen together if possible, and to 

19 appropriately segment out which portions are going to 

20 be which. You know, we're going to offer them the 

21 morning for 30(b)(1), we'll offer them the afternoon 

22 for 30(b)(6), or the reverse, but with the idea being 

23 that we can have as clean a record as possible going 

24 forward.
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1 We've also offered up sometimes, if we think 

2 the witness is an appropriate --

3 PROF. MARCUS: Can I ask you a question 

4 about --

5 MR. TRASK: Absolutely.

6 PROF. MARCUS: -- that, since it's come up -

7 -

8 MR. TRASK: Yes.

9 PROF. MARCUS: -- many times over the years? 

10 Assuming this witness is testifying, answering 

11 questions about things within the witness's scope of 

12 employment, why does it matter whether --

13 MR. TRASK: That's a very good question.

14 PROF. MARCUS: -- this person is presently 

15 testifying as an individual or presently testifying as 

16 the designated corporate representative?

17 MR. TRASK: And, Professor, I assume that 

18 your question is based on the fact that if they're 

19 testifying as an individual employee --

20 PROF. MARCUS: 801(d)(2)(D).

21 MR. TRASK: Precisely. At that point, what 

22 you're getting to is they're essentially an agent of 

23 the corporation anyways, and the reason that we 

24 sometimes make the distinction there is as follows. 
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1 Sometimes either the plaintiff or the defendant is 

2 going to make an argument against that person even 

3 speaking in their capacity as an employee speaking on 

4 behalf of the corporation.

5 And this is not something I've specifically 

6 encountered, but let's say you've got a pattern and 

7 practice case like Dukes v. Wal-Mart, you could very 

8 easily have a manager that you depose in their 

9 individual capacity who talks about what they did for 

10 hiring decisions, but it turns out those were in 

11 absolute violation of the allegedly common policy that 

12 was going on, and at that point, are they speaking 

13 about the common policy or are they speaking about 

14 their individual management decision? 

15 You have to be able to tell at those points 

16 whether they're speaking on behalf of the entire 

17 corporation or in their role as an employee who may or 

18 may not have done a good job. And so that's one of 

19 the reasons why we do still make that distinction. 

20 But you're absolutely right that the law does say that 

21 those should be similar.

22 So if we think they'll make a good 30(b)(1) 

23 deponent, and there's still space left, we might 

24 sometimes offer up the name simply because we think 
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1 that it might be appropriate for them to also be 

2 deposed in their fact capacity.

3 JUDGE JORDAN: What if you think that 

4 they're likely, after they're deposed in their 

5 30(b)(6) capacity, that there's some fair prospect 

6 that the other side's going to say, "Now I want to 

7 talk to this person in some more depth," wouldn't you 

8 have the same efficiency point that would make you 

9 want to raise that with the other side?

10 MR. TRASK: I actually appreciate the 

11 question, because that more specifically says what I 

12 just said. If I'm saying that I think they're 

13 probably an appropriate 30(b)(1), it means that I 

14 assume that after their 30(b)(6) testimony I'd be 

15 seeing a notice anyway.

16 JUDGE JORDAN: And so the question then 

17 becomes why is holding that information something that 

18 -- why shouldn't the rule suggest to people, or not 

19 just suggest, but tell people, "Look, it won't always 

20 be the case that you've got a thoughtful and 

21 cooperative professional like Mr. Trask on the other 

22 side," you might have somebody who's just going to 

23 make you fly from St. Louis to San Francisco for a 

24 30(b)(6) and not tell you who's going to show up 
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1 there, and it's somebody who, in fact, everybody knows 

2 or should know is going to be a 30(b)(1)?

3 Just make them tell it in advance, and that 

4 way it improves efficiency across the board, because 

5 then even if the defense lawyer chooses not to be 

6 forthcoming, it's going to come out because they're 

7 required to put it out there.

8 MR. TRASK: My answer to that one, and it's 

9 one that I've seen on behalf of my clients, and I've 

10 heard it in the room today, is that stuff happens. If 

11 I actually disclose a witness who's going to be 

12 noticed only for 30(b)(6) and are not yet noticed as a 

13 30(b)(1) witness, and then they get sick, they have a 

14 heart attack, they quit under the pressure -- I 

15 haven't had that one happen but I've had colleagues 

16 have it happen to them -- in that case, I've just 

17 noticed up somebody who's now going to get a 30(b)(1) 

18 notice even though they're in a hospital bed, they'd 

19 rather quit their job than testify for whatever 

20 reason, and there was no need to put their name out in 

21 the first place. In addition, sometimes I get accused 

22 of gamesmanship if I offer up one name and then switch 

23 the name later on.

24 So my policy after that, my practice at 
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1 least, is once I've had the meet and confer with the 

2 other side, I will immediately sit down and type up a 

3 letter to the other side that commemorates what we 

4 talked about. I do this for one of two reasons. 

5 Either there's already been a dispute and I want to 

6 make sure that I've papered that dispute so that if it 

7 goes in front of a judge, we can talk immediately 

8 about what was actually said and not said at the time. 

9 And I assume my letter will prompt a response letter 

10 if they thought I got anything wrong. Or there's been 

11 no dispute. I don't want one coming up later, and so 

12 I do the exact same thing.

13 But in either case, I try to make sure that 

14 that's papered, and then we go about preparing our 

15 witnesses. I would say in my experience, and I mean, 

16 topics have varying levels of specificity, but rule of 

17 thumb is for every topic I see, I assume there's going 

18 to be between a half an hour and an hour of testimony, 

19 and I presume I need to prep for twice that long, in 

20 between finding documents, going over them with a 

21 potential deponent.

22 It might be fewer if they're also testifying 

23 based on personal knowledge, but if they're not 

24 testifying based on personal knowledge, I absolutely 
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1 want that much time for them to learn the topic 

2 properly.

3 PROF. MARCUS: So I take it, then, you favor 

4 conferring about at least the topics before.

5 MR. TRASK: Yes. I'm not sure if there's a 

6 requirement for the Rule 30(b)(6) to specifically 

7 require conferral, because in my mind --

8 PROF. MARCUS: But this amendment does say 

9 that.

10 MR. TRASK: Right, I know it does, and so I 

11 don't think there's a harm in conferral. I'm not 

12 absolutely certain it's necessary. I know that 

13 sometimes the committee goes with a do no harm 

14 approach, and sometimes they go with a codified best 

15 practices approach, and to my mind there's a reason 

16 you're all sitting on that committee and I'm not, so I 

17 defer to you on that portion of it. But I wouldn't 

18 have a problem with something that says meeting and 

19 conferring about the topics and their number and 

20 complexity.

21 JUDGE BATES: Mr. Trask, we need to move on 

22 to the next witness.

23 MR. TRASK: Absolutely. Absolutely. Thank 

24 you very much.
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1 JUDGE BATES: So thank you very much. We 

2 appreciate it.

3 Our next witness is Ira Rheingold.

4 MR. RHEINGOLD: Good afternoon. My name's 

5 Ira Rheingold. I'm speaking on behalf of the National 

6 Association of Consumer Advocates, which is my 

7 organization, and my colleagues at the National 

8 Consumer Law Center. NACA's an organization of 

9 consumer lawyers, both private and Legal Aid attorneys 

10 from across the country, and National Consumer Law 

11 Center is dedicated to the representation of low12 income consumers.

13 As I prepared for -- I know it's late in the 

14 day, so I'll try to keep this fairly brief, and I'll 

15 make my points fairly short, and be happy to answer 

16 any questions you might have. As I prepared for the 

17 testimony today, I surveyed our membership. I'm a 

18 former Legal Aid attorney, and I've had experience, 

19 but it's been a while since I've been in a federal 

20 courtroom, but our lawyers are in federal courts every 

21 single day. And I asked them what was the issue 

22 around 30(b)(6) that concerned them the most.

23 Now, I'll point out that universally, they 

24 believe 30(b)(6) is the most important part of the 
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1 discovery process, that for the work that they do, 

2 getting in there early, finding out the parameters of 

3 the case, setting up the rest of the discovery, the 

4 30(b)(6) process is the most important part. They 

5 also indicated that for the most part, it's really 

6 working well, and we're very supportive of the 

7 proposals you've offered here as well.

8 The one issue that came up time and again 

9 was simply going to a 30(b)(6) deposition and not 

10 having a prepared witness on the other side, whether 

11 they were known or not known ahead of time, going into 

12 a deposition and the person simply being unable to 

13 answer the questions that had been dealt with 

14 beforehand.

15 JUDGE JORDAN: How often does that arise?

16 MR. RHEINGOLD: Fairly frequently. I mean, 

17 I can't give you a percentage of it, but I know for 

18 the type of cases our folks do, if there was one 

19 constant complaint, it may happen one out of five 

20 times, one out of 10 times. It depends on sort of the 

21 nature of the cases.

22 Our folks are dealing with typical cases, 

23 maybe something under the Fair Credit Reporting Act, 

24 or a debt collection issue, or a mortgage servicing 
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1 issue, a predatory loan. Sometimes these are very 

2 large companies. Sometimes they're small companies. 

3 But oftentimes, they find that when they step into 

4 that 30(b)(6) deposition, it's a big disappointment in 

5 terms of trying to get the proper response. That's 

6 why I think --

7 MS. WITT: Mr. Rheingold --

8 MR. RHEINGOLD: Sure.

9 MS. WITT: -- your comments tie the issue of 

10 preparedness to the identification of the witness --

11 MR. RHEINGOLD: Exactly.

12 MS. WITT: -- and the bandying problem.

13 MR. RHEINGOLD: Exactly.

14 MS. WITT: Is it really an identification 

15 issue, though? Can't there be unprepared witnesses 

16 who look like the right witness? How are they 

17 necessarily so linked?

18 MR. RHEINGOLD: I think that's a fair 

19 comment. I think that's fair. I think that the 

20 notion of meeting and conferring and discussing the 

21 identity may get past some of those issues. Saying 

22 this is what the topic we're looking at -- I mean, you 

23 may not actually resolve that problem. But at least 

24 having the meet and confer process, at least having a 
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1 discussion about the identity of the witness, you may 

2 be able to narrow down the questions you're wanting to 

3 ask and the information that you want to get from that 

4 person.

5 So when you have that conversation, you make 

6 it pretty clear who the person you want is and what 

7 information they need to provide, and you hope that in 

8 that conversation you actually identify the right 

9 person for your party. You're right, you may identify 

10 somebody. You may agree to that person. The person 

11 who shows up simply isn't prepared to make it, and 

12 then it just makes things that much more difficult, 

13 because you may have to go do another 30(b)(6). You 

14 may have to go to court and say, wait a second. This 

15 is a completely unresponsive witness.

16 So yeah, that's accurate, but I think, 

17 again, what we're trying to do is build a system 

18 that's collegial, that makes people sit down and 

19 simply talk to each other, and that there are no 

20 surprises in this game. I think from the perspective 

21 of attorneys who represent consumers of modest means, 

22 who are dealing with a real asymmetry of both 

23 information and resources, anything that we can do to 

24 sort of not waste people's time, so that they can go 
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1 to -- they can do this, and they can do it well, they 

2 can do it effectively, get the information they need 

3 and move on, is a good idea.

4 And again, I think having the meet and 

5 confer process, having a discussion about topics, 

6 having a discussion about identity, again, we're not

7 -- I mean, we may know from past experiences, I mean, 

8 again, the other idea about identity is our community 

9 can talk with each other, right? 

10 JUDGE BATES: Would a --

11 MR. RHEINGOLD: I'm sorry.

12 JUDGE BATES: Would a presumptive limit on 

13 the number of topics for a 30(b)(6) deposition 

14 adversely affect the people in your organizations who 

15 litigate these cases?

16 MR. RHEINGOLD: I think it's a really silly 

17 idea, to be perfectly honest with you. I think the 

18 notion of creating a presumption of numbers really 

19 sort of just makes -- just turns it into a game. I 

20 mean, some of these cases that we have are complex. 

21 Some of the cases are not complex. It depends on the 

22 nature of the case. There are folks that will bring 

23 class actions based on what they discover in a smaller 

24 case.
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1 So I think when we talk about presumption of 

2 numbers, what I hear is, "Well, if we say there's 25" 

3 -- I think my colleague Mr. Bland earlier made a 

4 really good point, that if we say you need five, or

5 you need 10, or you need 25, you're going to squeeze 

6 your questions into that presumptive number that 

7 you've created.

8 If you want topics that are distinct and 

9 effective and narrow in scope, then having that number 

10 sort of defeats that purpose, because if you say you 

11 need 25, then you're going to create 25, and you're 

12 going to squeeze everything else in that you need to 

13 have into that box.

14 JUDGE BATES: All right. Anything else?

15 MR. RHEINGOLD: That's all I've got.

16 JUDGE BATES: All right. Thank you very 

17 much. We appreciate it. 

18 MR. RHEINGOLD: Thank you.

19 JUDGE BATES: Next, Thomas Pirtle.

20 MR. PIRTLE: I'd like to thank the committee 

21 for the opportunity to address the committee on this 

22 very important subject. My name's Tom Pirtle. I'm 

23 from Houston, Texas. I have a law firm that is 

24 engaged in plaintiffs' work almost exclusively. I've 
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1 got a handful of defense clients, but I'm a 

2 plaintiffs' lawyer.

3 I have litigated from the very beginning of 

4 my career drug and device cases, starting back with 

5 breast implants and moving all the way into 

6 transvaginal mesh, drugs from fen-phen to proton pump 

7 inhibitors today. I also do individual cases and some 

8 catastrophic injury cases. And I would like to say 

9 first, having done a lot of this work both inside of 

10 MDLs and out, the 30(b)(6) system is working, at least 

11 from my perspective.

12 And by way of best practices, I think it's 

13 an excellent idea for there to be a meet and confer. 

14 I mean, we have to do that in an MDL. Every time, the 

15 judge would look at us and say, "Why wouldn't you be 

16 talking about this?" So we talk about the subjects, 

17 and I can't remember a time when I didn't have the 

18 identity of the witness disclosed to me.

19 And I just got through taking a 30(b)(6) 

20 deposition on the way up here. I knew who the witness 

21 was, and the reason why they -- and that was in a 

22 proton pump inhibitor case, but the reason why the 

23 other side disclosed it is the witness is -- we want 

24 to move -- we want to be efficient. We've got a 
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1 limited number of hours and we've got a lot of 

2 clients. So we disclose back and forth --

3 PROF. MARCUS: How long before the 

4 deposition do you ordinarily find out who is going to 

5 be the witness?

6 MR. PIRTLE: Now, it'll vary, to be honest 

7 with you, but they'll get it as soon as it's 

8 convenient, and you've got about a week or so to 

9 peruse around. And you know, sometimes I do find that 

10 these people have testified as corporate 

11 representatives before in earlier cases, which would 

12 be very important to know that when I'm taking a 

13 deposition for several thousand people. I want to 

14 know that. I'm getting that information.

15 PROF. MARCUS: But seven days is enough, as 

16 far as you're concerned.

17 MR. PIRTLE: At least on the identity, to 

18 check out the transcript.

19 PROF. MARCUS: Yeah, that's what I mean.

20 MR. PIRTLE: Yeah. Yeah. Yes, sir. Sorry. 

21 Professor. The other thing is this idea --

22 JUDGE ERICKSEN: So if seven days is enough 

23 for the professor, if part of the purpose is to take 

24 30(b)(1) questions at the same time, then wouldn't you 
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1 say that seven days in advance -- do you think that's 

2 enough time to prepare the witness who has been 

3 identified to answer 30(b)(1)-type questions? And how 

4 do you have a time limit for the disclosure of the 

5 witness without somehow getting into the question of a 

6 time limit before the 30(b)(6) that notice has to be 

7 given? And then we're into a whole structured 

8 program.

9 So if you have a thought about how we could 

10 just carve out that one part of a schedule without 

11 opening the Pandora's box of a whole bunch of --

12 MR. PIRTLE: We normally have a -- Your 

13 Honor, we normally have a fairly large lead time on 

14 our depos, at least in these kind of cases, so you 

15 know, we're negotiating where the site is, and you 

16 know, who's going to be there, and this, that, and the 

17 other. But Mr. Blizzard had said something about 30 

18 days. I don't have a problem with 30 days myself.

19 JUDGE BATES: Do you think 30 days is 

20 required under Rule 30(b)(1) right now with the term 

21 "reasonable notice?"

22 MR. PIRTLE: Your Honor Bates, I'm not going 

23 to go so far to say that 30 days is reasonable notice, 

24 because there's case law out there that says shorter 
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1 period of times are reasonable notice. But so I think 

2 a shorter time can be reasonable notice, but 30 days 

3 is reasonable. And I don't like the idea of any 

4 limits on the number of subjects.

5 JUDGE BATES: Why not?

6 MR. PIRTLE: The main reason is cases vary. 

7 You know, I will do something as simple as a case 

8 where someone got injured and maybe lost their leg. 

9 Twenty-five might be fine. If I'm doing a commercial 

10 case where I'm pursuing a corporation against a 

11 corporation, which I also do, for theft of trade 

12 secrets, 25's a starting point. And then we're going 

13 to -- the bigger case is going to be always going back 

14 to the judge, back to the magistrate.

15 I think that if somebody's abusing the 

16 system, and the person who's being abused brings it up 

17 to the federal judge, that judge will handle it. I 

18 wouldn't want to be on the receiving end of abuse of 

19 discovery standing in front of the judges that I have 

20 to practice in front of, and I think most reasonable 

21 lawyers feel the same way.

22 I don't want to be governed by the 

23 exception. You know, I want to be governed by the 

24 vast number of lawyers out there whose practice is to 
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1 do the right thing. Thank you.

2 JUDGE BATES: Thank you very much, Mr. 

3 Pirtle. We appreciate it.

4 Brittany Schultz is next.

5 MS. SCHULTZ: Good afternoon, may it please 

6 the committee. My name is Brittany Schultz. I'm 

7 counsel at Ford Motor Company. I am in the litigation 

8 and regulatory group, and I have significant 

9 responsibilities for discovery. Before joining Ford 

10 Motor Company, I was a trial lawyer for 13 years, 

11 where I defended and requested 30(b)(6) depositions. 

12 Thank you for the opportunity to testify today.

13 Ford is a defendant, Ford is a plaintiff, 

14 and Ford is a recipient of subpoenas for corporate 

15 witness depositions. Ford prosecutes cases, and Ford 

16 defends cases, and it has and will continue to be on 

17 both sides. Ford's litigation experience is diverse 

18 and extensive and includes commercial disputes, 

19 antitrust matters, class actions, intellectual 

20 property, consumer and product liability cases, and 

21 employment litigation, and many, many more.

22 In short, the proposed rule hinders and does 

23 not help the legal process and ignores the practical 

24 realities of real-life litigation on both sides, for 
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1 the plaintiff and the defendant, as Ford sits.

2 JUDGE BATES: Do you favor a presumptive 

3 numerical limit on the number of topics?

4 MS. SCHULTZ: Yes.

5 JUDGE BATES: Would one number cover all the 

6 different kinds of cases that you've just explained 

7 that Ford faces or brings?

8 MS. SCHULTZ: The presumptive limit that 

9 Ford suggested in its prior submissions and comments 

10 to this committee is 10, and what is really important

11 about that number is that the presumptive limit could 

12 be reduced, because maybe 10 is too many, or the 

13 presumptive limit could be added to, because the 

14 number is too low.

15 I completely agree that you need to meet the 

16 needs of the case and the spirit of Rule 26, 

17 proportionality and what is needed for that case, 

18 which is why the presumptive limit is merely 

19 presumptive. You can ask the --

20 JUDGE JORDAN: But it would involve the 

21 Court, right, Ms. Schultz? By setting a limit, people 

22 will gear to the limit, and then it's not as simple as 

23 saying it could go down, it could go up. It could go 

24 down or go up only by involving the Court, if one side 
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1 or the other is unwilling to negotiate, right?

2 MS. SCHULTZ: I agree that if the other side 

3 isn't willing to negotiate, you would need Court 

4 assistance in that process. In my experience, with 

5 good lawyers and reasonable lawyers, that meet and 

6 confer process results in a resolution that's 

7 favorable to all.

8 JUDGE BATES: Wouldn't it do so even without 

9 a presumptive limit, though?

10 MS. SCHULTZ: No.

11 JUDGE BATES: Why not?

12 MS. SCHULTZ: The Court isn't --

13 JUDGE BATES: Isn't it doing so now?

14 MS. SCHULTZ: No. The Court role is in dire 

15 need of structure and a guidepost. Lawyers need a 

16 guidepost to help focus the needs of the case. That 

17 goes to the heart of the proportionality 

18 considerations that were mandated in 2015. Where you 

19 have focus and you need to look at the needs of your 

20 case, that results in topics that are reasonably 

21 tailored to the needs of the case. As one district 

22 court judge --

23 JUDGE JORDAN: Does that actually advance 

24 your argument or impede it? Because when you talk 
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1 about proportionality, you're necessarily talking 

2 about gearing something on an individual basis to the 

3 specific case. A presumptive limit is just a -- it's 

4 a number. It's just picked out of the air and said to 

5 be presumptive. How does that advance 

6 proportionality?

7 MS. SCHULTZ: Because it helps the parties 

8 focus. If you know there is a guidepost, presumably 

9 10, or interrogatories, which I know you don't like 

10 that example, presumably 25, or a page limit, 

11 presumably 50 pages, you know you've got a bogey. 

12 That bogey can be shifted depending on the needs of 

13 the case, and you can move that bogey by stipulation. 

14 You can move that bogey by court intervention. You 

15 should have to show some reason why you need to move 

16 that bogey.

17 Ten may be too many for the typical case, 

18 and it might need to be three. It could need to be 

19 25. But that's the flexibility that a presumption 

20 gives, because you can ask with leave of the Court or 

21 you can talk to your opponent about what matters for 

22 that case.

23 PROF. MARCUS: A presumption introduces 

24 flexibility that was not there before?
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1 MS. SCHULTZ: It absolutely does, because it 

2 provides a guidepost, and it provides a way to have a 

3 common theme where parties can go to for a starting 

4 point. Otherwise, where it stands right now, of 

5 unlimited, that breeds actually very broad discovery 

6 requests, because many lawyers don't know what they 

7 don't want to give up, because they're afraid to say I 

8 only want a certain limited number.

9 Case in point, deposition notice that I 

10 received just a couple days ago, which had over 150 

11 topics. I receive a request something along the lines 

12 of this, and by the way, this is not a snowball. This 

13 happens frequently, frequently at Ford Motor Company. 

14 The topic is "all information relating to any and all 

15 documents regarding your history." I can guarantee 

16 you we met and conferred on this topic. Didn't want 

17 to confer. I said what I wanted, and that's what's 

18 going to happen.

19 Without some guidepost of limitation, 

20 presumptively --

21 PROF. MARCUS: There you are. I mean, 

22 that's one request.

23 MS. SCHULTZ: Right. There's 155 just like 

24 this one.
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1 PROF. MARCUS: That's hard to imagine.

2 MR. SELLERS: Can I just interrupt? 

3 JUDGE BATES: Yeah, go ahead.

4 MR. SELLERS: I'm sorry. Wouldn't it have 

5 been more effective if instead of worrying about the 

6 limits on the number, if the negotiation over that 

7 request being so broad, and that it would be much more 

8 effective if it were narrowed considerably, even if it 

9 was broken up into five requests, but at least the 

10 company would have a much clearer idea of what's being 

11 requested?

12 MS. SCHULTZ: I think having a starting 

13 point of a presumptive limit will help the requesting 

14 party, as it helps when Ford crafts its own deposition 

15 notices, to figure out, "What do I really need to try 

16 my case?" Jury instructions don't have 155 separate 

17 things to tell the jury on guiding them on what to do. 

18 They're targeted. They're purposeful.

19 And that's what a 30(b)(6) deposition needs, 

20 and that's what this committee needs to help the 

21 lawyers do, so we don't continue to receive 150-plus, 

22 30-plus deposition topics.

23 And what I heard today -- and I know I'm 

24 over time. What I heard today is that won't that 
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1 breed more or broader topics. The answer is no. Ford 

2 is seeing already exceedingly broad topics. How could 

3 you make it worse?

4 PROF. MARCUS: So you're saying, if I'm 

5 understanding this correctly, that it really doesn't 

6 matter if you give people a lot of room to maneuver, 

7 they're still going to have horribly over broad 

8 topics, and therefore a presumptive limit will fix the 

9 problem?

10 MS. SCHULTZ: I think it will.

11 PROF. MARCUS: Have I followed that?

12 MS. SCHULTZ: I think it will definitely 

13 help fix the problem, because it gives a roadmap of 

14 how to get somewhere that embraces the proportionality 

15 rules. Without having some guidepost that says you 

16 need to focus on your case, on what's important in 

17 your case, what you need to try your case, instead of, 

18 "Tell me the entire corporate history and all 

19 documents relating to it," there's nothing for the 

20 lawyers to do except for move through minutiae and 

21 mountains of discovery disputes.

22 I actually had several other comments, but I 

23 know I'm out of time.

24 JUDGE BATES: Well, I take it that your 
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1 view, unlike a couple of witnesses that we heard from 

2 a few minutes ago, is that 30(b)(6) is not working 

3 well.

4 MS. SCHULTZ: It's not working well with 

5 respect to having a basic, common-sense procedure on 

6 what to do when a dispute arises. And with all due 

7 respect, a meet and confer doesn't get you there. 

8 Great, you conferred, but now what, once you reach an 

9 impasse? The rule is silent as to what to do next and 

10 what to confer about. What is this procedure that the 

11 parties are supposed to do?

12 And what happens when adversaries start 

13 accusing each other of, "You are not meeting and 

14 conferring in good faith?" Does that create a 

15 springboard for motion practice because you think the 

16 other side didn't do its job meeting and conferring?

17 And by the way, who makes the call when the 

18 meet and confer is over? The rule does not say. I've 

19 had many opportunities where I've engaged before and 

20 after Ford Motor Company where I don't think the other 

21 side conferred in good faith, and I didn't think the 

22 conferring session was over, but they said, "We're 

23 done." But the rule doesn't address the real-life 

24 situations of that, that oftentimes meet and confer is 
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1 check the box. So this rule needs --

2 PROF. MARCUS: So if there's a 10 --

3 MS. SCHULTZ: -- to go farther.

4 PROF. MARCUS: If there's a 10-topic limit, 

5 will that answer these questions you just raised about 

6 when the meet and confer is done?

7 MS. SCHULTZ: I sure do think it'll help 

8 narrow the scope of disputes. And after those 10 

9 topics go forward, let's say the deposition goes 

10 forward, and that other side says, "Great. I got my 

11 testimony on these 10 topics. I'm still missing A, B, 

12 and C," that is either perfect for a further meet and 

13 confer to stipulate to additional testimony, or if the 

14 other side is unreasonable, or says no, then that's a 

15 perfect springboard to bring to the magistrate's 

16 attention or to the Article III judge's attention to 

17 say, "This is why I need more. This is what I can 

18 show you as to why I need more," and then there's a 

19 mechanism to get there.

20 And you get there by providing some basic 

21 procedure on how to do that, like an objection 

22 procedure, or whoever has to bring the motion for 

23 protective order, motion to compel. I'm not sure I 

24 care about that, but I need somebody to tell me how to 
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1 do that and when to do that, and this rule does not 

2 say.

3 JUDGE BATES: All right. Thank you very 

4 much, Ms. Schultz.

5 MS. SCHULTZ: Thank you very much.

6 JUDGE BATES: We appreciate it. 

7 And now for the caboose, Terry O'Neill.

8 MS. O'NEILL: Good afternoon. I'm Terry 

9 O'Neill. I'm the executive director of the National 

10 Employment Lawyers Association. We advance employee 

11 rights and serve lawyers who advocate for equality and 

12 justice in the American workplace. We have 4,000 

13 members. We have 69 circuit, state, and local 

14 affiliates, and the vast majority, over 70 percent, of 

15 NELA's members, are either sole practitioners or they 

16 are in firms of four or fewer lawyers.

17 I really want to emphasize that, because the 

18 reality is that for my members, the members of my 

19 organization, there is a huge disparity between the 

20 resources on the plaintiff's side and on the defense 

21 side, and a very large disparity in the information. 

22 In employment discrimination cases, in wage theft 

23 cases, it's the employer who has the vast bulk of the 

24 information that the plaintiff needs in order to make 
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1 their case.

2 PROF. MARCUS: Can I ask you --

3 MS. O'NEILL: Yeah, yeah.

4 PROF. MARCUS: -- about something that this 

5 committee was involved in promoting -- that's maybe 

6 the wrong word. Judge John Koeltl, a former member of 

7 this committee, with the assistance of lawyers on both 

8 sides of the V, ended up with what we call protocols 

9 for discovery in individual employment discrimination. 

10 Are you familiar with those?

11 MS. O'NEILL: I am not.

12 PROF. MARCUS: Okay.

13 MS. O'NEILL: I am not, so I apologize.

14 PROF. MARCUS: Okay.

15 MS. O'NEILL: I became executive director of 

16 this organization one year ago, and I should say I 

17 personally have not litigated. I am an executive 

18 leader --

19 PROF. MARCUS: Okay.

20 MS. O'NEILL: -- of a nonprofit 

21 organization. I am an attorney and have been a law 

22 professor but have not litigated.

23 I wanted to point out the disparities in 

24 resources and information because that is the context 
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1 in which I hope the committee will consider this 

2 proposal around the notice and objection sort of 

3 process that the defense bar has brought forward.

4 So under the current system, if the defense 

5 attorney thinks that the notice for the deposition is 

6 too broad, then a protective order is available. The 

7 proposal from the defense bar is to flip the burden, 

8 permitting the corporation to continue withholding 

9 information unless and until the plaintiff counsel 

10 seeks to compel the information.

11 PROF. MARCUS: I'm sorry to interrupt again, 

12 but am I right in understanding that you are speaking 

13 now about something that is not in our package and --

14 MS. O'NEILL: Yes. I'm worried about it. 

15 PROF. MARCUS: Are you --

16 MS. O'NEILL: It has been proposed, yeah.

17 PROF. MARCUS: Well, yes. Do you have 

18 problems with what is in our package?

19 MS. O'NEILL: No. We do support what's in 

20 the package. The comments that we provided were very

21 supportive of it. We think they are balanced. We 

22 think that a requirement for meeting and conferring 

23 both with respect to the topics and with respect to 

24 the identity of the witness make a lot of sense. It's 
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1 a best practice anyway.

2 JUDGE BATES: Wouldn't requiring that the 

3 parties confer as to the identity of the witness 

4 inevitably lead into discussions about topics that are 

5 really up to the organization to determine, the 

6 propriety of the witness, the knowledge of the 

7 witness, who the best witness is? Wouldn't it 

8 inevitably get into subjects that really shouldn't be 

9 explored?

10 MS. O'NEILL: No more than meeting and 

11 conferring on the topics gets into having the defense 

12 counsel able to influence the plaintiff lawyer about 

13 what it is they want to ask for. So I frankly don't 

14 think that that is a problem. If there's a fear that 

15 there is some kind of slippery slope, that somehow the 

16 plaintiff lawyer will be able to influence who the 

17 designee is, or somehow the defense lawyer will be 

18 able to influence what the topics look like, we just 

19 haven't had a problem with that.

20 JUDGE ERICKSEN: So would you have a problem 

21 if the current language was changed such that instead 

22 of "identity of each person the organization," that 

23 read "the number of persons the organization will 

24 designate to testify?"
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1 MS. O'NEILL: No, I think the identity of 

2 the person is important. It serves efficiency values. 

3 A number of people have testified to that, that if 

4 you know who the person is, you can go through the 

5 documents that have already been produced and see.

6 JUDGE BATES: But isn't that taken care of 

7 by disclosure of the identity, as opposed to 

8 conferring with respect to the identity?

9 MS. O'NEILL: Yes. So disclosure of the 

10 identity, I think, is important. Conferring about the 

11 identity makes sense. It's not clear to me -- well, 

12 let me put it this way. If there's a requirement to 

13 meet and confer about the topics, and shape the 

14 topics, and narrow the topics, and make sure that 

15 they're the right topics, I don't understand why there 

16 wouldn't be a requirement to meet and confer similarly 

17 to make sure that the designee is going to be 

18 adequately prepared.

19 PROF. MARCUS: How do you make sure that the 

20 designee will be adequately prepared?

21 MS. O'NEILL: You go find out what that 

22 designee -- who the designee is, and have a 

23 conversation about it, right? 

24 JUDGE BATES: Before the deposition?
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1 MS. O'NEILL: Sure. If it's A, "So who is 

2 your designee?" "Well, we're probably going to use A. 

3 This person has testified before in similar 

4 litigation." And yes, and that does happen.

5 PROF. MARCUS: So you'd expect --

6 JUDGE BATES: Okay, we --

7 PROF. MARCUS: -- the conference to include 

8 a pitch for the witness that you would be able to 

9 accept or reject as the requesting party?

10 MS. O'NEILL: No, I think what the 

11 plaintiffs do is talk to the defense -- the proponent 

12 talks to the recipient lawyer about whether the 

13 proposed designee is the right person to answer the 

14 questions that need to be asked. That's a 

15 conversation about both topic and who can actually 

16 speak to the topic, so it's really a combined thing.

17 I don't think it makes any sense to separate 

18 them out and say, "No, we won't have a conversation 

19 about this part of what's going to happen at the 

20 deposition. We will only have a conversation about 

21 that part about what's going to happen at the 

22 deposition."

23 JUDGE JORDAN: Doesn't that actually invite 

24 the problem that we've been hearing about from the 
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1 defense side, which is it puts you in the posture of 

2 saying who their voice should be? And it also puts 

3 them in a position where if they disclose that 

4 information to you, and they decline to pick the 

5 person you want, they're inviting a 30(b)(1) notice 

6 deposition for somebody that might not otherwise have 

7 been pulled into the litigation maw. 

8 MS. O'NEILL: So I think two things the rule 

9 makes very clear -- the draft of the rule makes very 

10 clear that it's up to the corporation itself to say 

11 who the designee will be, so I really do think that 

12 speaks to that. I get that the --

13 JUDGE JORDAN: If it's true that it's up to 

14 the corporation, and they say, "It's up to us, and 

15 it's in our exclusive right to say it," then there's 

16 no need to meet and confer, because there's really 

17 nothing that the other side has to say that's worth 

18 anything to us in making that designation. All it 

19 does is invite them to invade our attorney-client 

20 privilege, to invade our work product, and to maybe 

21 start noticing depositions of people who we've 

22 identified but change our mind later.

23 MS. O'NEILL: Right.

24 JUDGE JORDAN: What's the answer to those 
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1 concerns?

2 MS. O'NEILL: There's a difference between 

3 having a voice and having a veto. Having a voice and 

4 having a conversation to allow a more efficient and 

5 inexpensive way of shaping that deposition makes a lot 

6 of sense. But having a voice means having a 

7 conversation about it. That is not a veto. That is 

8 not even close to the same as the proponent party 

9 saying, "No, I don't want that to be the witness. 

10 That can't be the witness. I'm going to go make your 

11 life miserable because I don't want that for the 

12 witness." 

13 When that happens, there are protective 

14 orders. There are things that the receiving 

15 organization can do about it, right? So there was 

16 another part to your question, though, that -- and I 

17 can't remember. 

18 JUDGE BATES: Well, here's another question.

19 MS. O'NEILL: Yes.

20 JUDGE BATES: Would a reasonable numerical 

21 limit on the number of topics adversely affect your 

22 organization's cases?

23 MS. O'NEILL: Yes.

24 JUDGE BATES: Why?
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1 MS. O'NEILL: Yes, because some of our cases 

2 are wage theft cases that may involve many thousands 

3 of employees, and then you get to how do you count 

4 topics. It's not so much -- I don't think the problem 

5 that people are having is how to define the topics. 

6 It's really how are they counting. The topic is we 

7 want to ask about what are the policies, the 

8 employment policies, in five different plants for this 

9 one defendant. Is that five topics or is it one 

10 topic? 

11 I think it gets to be extremely contentious, 

12 and besides that, in order to comply with the 

13 proportionality idea, the proportionality rules, the 

14 spirit of proportionality and the spirit of efficiency 

15 in litigation, it makes sense to talk about what the 

16 topics are. It does not make sense to talk about 

17 numbers as much as it makes sense to talk about what 

18 they are.

19 Putting a number limit on it simply allows 

20 parties to not confer about the important things, 

21 which is this is what I need, this is the information 

22 I'm going to need from you so that I can figure out 

23 whether my client has a case for employment 

24 discrimination.
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1 JUDGE BATES: All right. Ms. O'Neill, thank 

2 you very much. We appreciate your testimony.

3 And with that --

4 MS. O'NEILL: Thank you.

5 JUDGE BATES: -- we have succeeded in 

6 hearing from 50-some witnesses today, and that 

7 completes this second public hearing on proposed 

8 amendments to Rule 30(b)(6), and we are adjourned for 

9 the day. Thank you all again very, very much for your 

10 patience and the quality of your testimony.

11 (Whereupon, at 4:45 p.m., the hearing in the 

12 above-entitled matter was concluded.)
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REPORTER'S CERTIFICATE

DOCKET NO.: N/A

CASE TITLE: Advisory Committee Meeting on the Rules 

of Civil Procedure

HEARING DATE: February 8, 2019

LOCATION: Washington, DC

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before the Administrative Office of the 

U.S. Courts.

Date: February 8, 2019

David Jones

Official Reporter

Heritage Reporting Corporation

Suite 206

1220 L Street, N.W.

Washington, D.C. 20005-4018