A proposed amendment to Fed. R. Civ. P. 30(b)(6) is drawing fire from the defense bar and their clients. Here is the proposed amendment: FRCP 30(b)(6).

Here is the Lawyers for Civil Justice’s comment: Lawyers for Civil Justice Comment.

Lawyers for Civil Justice is a national coalition of corporations, law firms and defense trial lawyer organizations. Based on their comments, it’s a group that thinks discovery is about gamesmanship and keep-away instead of exchanging relevant information.

The current problem with Rule 30(b)(6) in practice is companies and their lawyers often do not prepare the 30(b)(6) witness for the deposition. This results in the questioner getting a lot of “I don’t know” answers.

The witness does not know because he wasn’t adequately prepared or the plaintiff didn’t give fair notice of the topic. The corporation does know. The 30(b)(6) witnesses’ job is to provide the information the company knows, regardless of whether the witness knew it.

And it doesn’t have to be that hard. There have been times when defending 30(b)(6) depositions where I ask for a recess and tell the witness the answer so they can say it on the record. What did the plaintiff lawyer say? Thank you.

Instead of preparing or going and finding out, many defense lawyers stand pat on “I don’t know.” In my opinion, that’s a mistake that could rise to the level of malpractice if “I don’t know” gets broken off in the company at trial. If the topic was fairly noticed, the defense lawyer might should interject that we’ll work on getting an answer for you.

Something is needed to address the problem. The proposed amendment takes a crack at it.

The LCJ comment is kind of stupid. It asserts that the amendment allows plaintiff lawyers to have a say in the identity of 30(b)(6) designees. It doesn’t.

It argues that what is really needed is a 10 topic limit to 30(b)(6) depositions. It’s not.

I list a lot of 30(b)(6) topics to help the company prepare witnesses for the deposition. I can give you 5 topics. But good luck preparing your witnesses for my questions. Limiting to 10 topics will make the problem of unprepared witnesses worse.

I can’t help but think that what these people really want is to abolish Rule 30(b)(6). Make it impossible to pin a company down.

A lawsuit is supposed to be about resolving a dispute between the parties. But many lawyers–particularly East Coast big firm lawyers–think litigation is a game of keep-away chess.

They don’t want to cooperate in discovery because, how can they win the case in discovery by turning over the evidence? Much better to resist providing information that should be included in mandatory disclosures.

Better yet, object to every single interrogatory and request for production. Yes, objecting to the request for production asking for your trial exhibits looks stupid and screams insecurity. But that’s how many lawyers under the age of 60 were trained. Tell them it’s stupid and they look at you like you said the Earth is flat.

It doesn’t matter if the amendment is enacted or not. The gamesmanship in litigation has become too ingrained in the profession to stop. And it slowly gets worse.

It doesn’t help that at least one side’s attorneys have a financial interest in gamesmanship, since it increases attorney fees.