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ANALYSIS: Meet-and-Confer Mandate Has Minor Effect on Motions

Jan. 24, 2023, 10:00 AM

The meet-and-confer amendment to Federal Rule of Civil Procedure 30(b)(6) might be reducing motion practice, according to federal court dockets, but only gradually. And attorneys surveyed by Bloomberg Law didn’t notice much of a change in the number of motions relating to the rule. Is the new requirement—stating that attorneys must meet and confer about Rule 30(b)(6) topics in written notices—serving its intended purpose of avoiding disagreements over those topics? Only time will tell.

Federal dockets data show a decrease in Rule 30(b)(6) motions to compel and motions for protective orders over the last four years.

The number of motions dropped from 2020 to 2021, but only very slightly after the amendment’s December 2020 effective date: from 389 in 2020 to 380 in 2021. Last year the downward trend continued with 337 motions, but didn’t plummet sharply, which may explain why most attorneys said that they noticed no change.

As discussed in my previous analysis, most respondents (71%) to Bloomberg Law’s State of Practice Survey last spring said they were seeing the same number of 30(b)(6) disputes after the amendment as before. And in the same survey, a similar percentage (68%) said that they’d seen no change in motion practice (i.e., no change in the number of disputes getting resolved before court intervention).

One-fifth of the responding attorneys said that they’d seen a slight decrease, but only a handful (2%) said motions had notably decreased. Some respondents even reported a slight (6%) or notable (2%) increase.

Though motions were already on their way down before the amendment, falling more between 2019 (471) and 2020 (389) than they did after the amendment, this may have been a result of the general litigation slowdown in 2020 due to Covid-19. So it’s hard to say whether the meet-and-confer requirement can truly be credited with the decrease in 2021 and 2022.

However, given that 2021 saw the remote rescheduling of many depositions put off in 2020, an uptick in disputes may have been otherwise expected—so perhaps the downward trend holding in 2021 means meeting and conferring is doing its job.

It may take time to see the effects, but so far it’s unclear whether the meet-and-confer amendment will really influence how many Rule 30(b)(6) deposition notices eventually give rise to motions.

Bloomberg Law subscribers can find related content on our new Discovery practice page, our Depositions & Disputes topic page, and our Practical Guidance on best practices for a meet and confer and for handling discovery disputes generally.

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