Proposed Corporate Depositions Rule Eased After Objections (1)

A committee of the federal court system’s policy arm recommended on Tuesday that draft rules language opposed by companies like Bank of America and Comcast requiring that litigants disclose more specifics prior to corporate depositions be dropped.

The Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States instead recommended at a meeting a less prescriptive approach for promoting civility between parties and improving efficiency.

Committee Chairman Senior Judge David G. Campbell of the U.S. District Court for the District of Arizona said “getting the parties to talk before the deposition” will result in better prepared witnesses and resolve some of the most frequent complaints he receives about the deposition process, which result from a lack of communication.

The proposed amendment to Federal Rule of Civil Procedure 30(b)(6) presented by the Advisory Committee on Civil Rules removed draft language requiring that the parties confer on the “number and description” of matters to be discussed, and on the identity of those who will testify for the company.

The new recommendation would require that before or promptly after service of a notice or subpoena to an organization, the parties must “confer in good faith” about the matters for examination in a deposition.

The Judicial Conference will decide in September whether to adopt the changes, which were approved by the standing committee by voice vote. If adopted, they could become effective as soon as Dec. 1, 2020.

Gregory P. Joseph, who is the founder of Joseph Hage Aaronson and a former president of the American College of Trial Lawyers, opposed the deleted provisions.

Adding a requirement for parties to confer about the number and description of topics would have been “pointless” because that’s “already required before any party can seek relief from” the court, Joseph, who emphasized that he thinks “extremely highly” of the rulemaking process and those involved, said in an e-mail.

Further, requiring parties to confer about the identity of persons who will be designated to testify would have been “counterproductive,” Joseph said.

“The noticing party is not entitled to interfere with the responding party’s right to designate whomever it chooses, or even to chime in on it,” Joseph said. The issue is whether witnesses “are properly prepared, not who they are.”

Nearly 140 companies, including Bank of America and Comcast Corp., opposed the proposal in a February letter to the committee for similar reasons.

But Public Justice P.C., a national nonprofit legal advocacy group, supported most of it.

It “preserves the fundamental purpose of the Rule: to ensure organizations receive no special advantages that enable them to avoid or delay legitimate discovery,” Public Justice said in comments to the proposed amendment.

Requiring parties to confer about the identity of an entity’s witness “helps ensure the organization is choosing an appropriate witness and makes the process more efficient,” Public Justice said.

However, Public Justice said the proposed duty to confer about the number of topics should be removed. Counsel seeking discovery could simply make each topic broader than necessary to get around that number, making it a “meaningless guidepost,” the group said.

The committee also recommended approval of proposed amendments to Federal Rules of Appellate Procedure 35 and 40.

These propose that responses to petitions for hearing or rehearing en banc, or a panel rehearing, have the same word limit as for the petitions themselves, 3,900 words.

A proposed amendment to Federal Rule of Evidence 404(b), which would impose additional requirements on the prosecution and protect defendants, was also recommended for approval.

The amendment would require prosecutors to give written notice of evidence of “any other crime, wrong, or act” that they intend to offer, with an explanation of why the evidence should be allowed.