Public Justice Backs Rules Committee’s Balanced Approach to Rule 30(b)(6)
By Ellen Noble
Seneca Falls Fellow
If you want to ask a human being important questions, you can just ask the person directly, and they answer for themselves. But how do you question a corporation? I know a lot of corporate lawyers think corporations are “just like” people, with First Amendment rights, privacy rights, and so forth. But it’s harder to get answers from a corporation if you can’t find the right person to ask.
Fortunately for people involved in litigation, for decades this problem has been addressed by Rule 30(b)(6) of the Federal Rules of Civil Procedure. If someone injured by a corporation’s conduct wants to learn about how the corporation operates and makes decisions, and what it knows about a problem, you can serve a Rule 30(b)(6) deposition notice, and the corporation has to identify the right person or persons to address various topics.
So, naturally, people who don’t want corporations to ever be responsible for the harm they do hate Rule 30(b)(6). And after an intensive lobbying campaign from corporate lawyers, in May 2017, a Civil Rules Advisory subcommittee set out for discussion a set of proposals to “reform” Rule 30(b)(6). Along with a number of allies at AAJ, civil rights and consumer advocates and many, many others, we at Public Justice joined in sounding the alarm and filed comments strongly opposing the proposals.
For now, it looks like the Rules Committee really listened to and heard those of us who represent people who’ve been harmed by illegal corporate conduct. Instead of adopting the defense bar’s radical proposals, the Committee’s proposed amendment reflects a cautious, balanced approach that preserves the power of Rule 30(b)(6). The amendment eschews proposals that would have let corporations walk away from the testimony of their designated representatives or otherwise sharply limit the rule, and adds only one new amendment – a duty confer about the number and description of matters for examination and the identity of each designated witness.
Public Justice has filed comments in support of the amendment, with a few minor changes.
A Decade Long Battle in Defense of Rule 30(b)(6)
Before Rule 30(b)(6) was adopted, it was standard for corporations to hide the ball about what they knew. Lawyers representing injured persons often struggled to identify the right corporate officers to depose, and then if they did depose individual corporate officers, witnesses often disclaimed knowledge about the topic at hand and insisted that a different employee had the relevant information. This sort of abusive tactic increased the cost of discovering the truth in many cases, and sometimes, let corporations who had broken the law and hurt people nonetheless dodge liability all together. And if a case did get to trial, corporations would often ambush the plaintiff with new evidence never before disclosed.
To stop defendants from hiding behind their corporate structures, Rule 30(b)(6) was adopted. The Rule requires a corporation to designate a person (or multiple people) to testify on its behalf about information known or reasonably available to the corporation. For the last fifty years, the Rule has served its purpose, leveling the playing field for individuals going up against large, powerful organizations.
But over the last ten years, advocates for corporate immunity from the law have launched an orchestrated attack on Rule 30(b)(6), repeatedly requesting that the Civil Rules Advisory Committee consider harmful amendments. Several of the proposals that were suggested in 2017 would have dramatically weakened the Rule. Along with many allies, we filed comments arguing that new limits on Rule 30(b)(6) depositions would harm efficiency, exacerbate the problems of asymmetrical information, and most importantly, undermine the very purpose of the rule. Fortunately, the Committee is not proceeding with any of those proposals.
Proposed Amendment Preserves Purpose of Rule 30(b)(6)
In August, the Rules Committee circulated its proposed amendment for public comment. The amendment preserves the power and flexibility of Rule 30(b)(6), making discovery both fairer and more efficient.
In our comment on this proposal, filed on January 24, 2019, we explain how several areas of our own public interest work here at Public Justice illustrate how the preservation of Rule 30(b)(6) is essential to protecting the rights of people harmed by illegal conduct by corporations and institutions. We offer illustrations of how we rely on Rule 30(b)(6) depositions to protect farmers from anticompetitive and exploitative labor practices, consumers from deceptive advertising, local communities from polluted waterways, and sexual assault survivors from deliberately indifferent schools.
With that said, we do propose a few minor changes. We recommend the Committee remove the duty to confer about the number of topics for examination. It’s the substantive description of matters—not the number of topics—that define the scope of a deposition. The Committee should also clarify, in the Committee Note, that the duty to confer may be a single conference or a series of discussions, and it’s not an excuse to slow or stall the discovery process. Most parties already confer about 30(b)(6) depositions. The Rule should simply codify those good practices.
While it looks like the Committee has chosen to take a cautious, balanced approach that preserves the value of Rule 30(b)(6), it’s not time to take a sigh of relief just yet.
Defense attorneys are fighting hard for the Committee to return to their radical proposals that would weaken Rule 30(b)(6) and resurrect the gamesmanship that gives corporations a unique litigation advantage against any individual plaintiff. We’re in the final leg of the race, and it’s time to sprint to the finish line.
So now would be a great time for you to act! We encourage our members to submit their own comments in support of the proposed amendment or against continued calls for a procedure for pre-deposition objections, one-size-fits-all notice requirements, and limits on the number of topics, and the number and duration of depositions.
The comment period ends on February 15th.