By David Hricik
30(b)(6) depositions are part of the toolkit of any competent patent litigator. The proposed change would, I think, help with some questions about the rule, but leave others unresolved. The proposed amendment to Rule 30(b)(6) is below, with the proposed new language not in italics:
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must [proposal deletes the present word “then”] designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify. A subpoena must advise a nonparty organization of its duty to make this designation and to confer with the serving party. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
While I appreciate the idea behind the change — to foster cooperation by requiring conferring about the topics and so on — the case law about the use of Rule 30(b)(6) demonstrate to me that a lot more could be done to eliminate problems. (E.g., can you instruct a witness not to answer if the question is outside the scope of the notice.) If they’re going to amend it, I would hope for more is one way of stating it.
You can find more about the proposals, which include changes related to petitions at the appellate level for panel rehearing and rehearing en banc, here (to save you time, 30(b)(6) starts on page 31).