District of Maryland’s Proposed Amendment to Discovery Guideline 5

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The United States District Court for the District of Maryland has proposed an amendment so that Discovery Guideline 5 will conform to amendments to Fed.R.Civ.P. 30(b)(6).  I chaired a subcommittee of the Federal Court Bench Bar Committee which submitted a proposed amendment to the Court for its consideration.  Subcommittee members included Phil Andrews, Tom Barnard, Jim Bartlett, Howard Feldman, Alicia Shelton, and Peggy Ward.

The proposed amendment to Appendix A is:

Guideline 5: Designation by an Organization of Someone to Testify on Its Behalf

a.  Fed.R.Civ.P. 30(b)(6) deposition notice or subpoena to a public or private corporation, partnership, association, governmental agency, or other entity should describe with reasonable particularity the matters for examination. The serving party should consider listing the matters for examination in a manner that groups related topics together.

b.  Before or promptly after serving a notice or subpoena pursuant to Fed.R.Civ.P. 30(b)(6), the serving party and the organization to be deposed must confer in good faith about the matters for examination.

c.  A subpoena to a nonparty organization must advise the nonparty organization of its duty to confer with the serving party and to designate each person who will testify.

d.  Depending on the circumstances of the case and content of the conference, the participants should consider engaging in more than one conference.

e.  The purpose of the description of matters for examination and conference(s) should be to focus the examination and preparation of the designated witness or witnesses.

f.  In the good faith conference or conferences pursuant to subsections (b) and (d), the parties should discuss the description of the matters for examination and whether they have been described with reasonable particularity, as well as any objections to those descriptions. In addition to any other relevant factors, the parties may consider the nature, business, size, and complexity of the organization being asked to testify, and should consider the proportionality factors in Fed.R.Civ.P. 26(b).

g.  The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf. The parties may choose to discuss the identity or identities of the designee or designees who will testify if the parties deem it reasonable and appropriate to voluntarily do so. The choice of designee or designees should remain with the organization designating the witness.  The named organization should identify the specific topics or groups of topics on which each designated witness will testify. The designating organization should make a diligent inquiry to determine which individual(s) is (are) best suited to testify.

h.  In many circumstances, it may be reasonable for the named organization to make a subsection (g) designation only after a subsection (b) conference or conferences.

i.  If the parties are unable to resolve a dispute or disputes under subsection (f), the parties may consider presenting the dispute or disputes to the Court prior to the deposition.

j.  Guideline 5 does not preclude a deposition by any other procedure allowed by the Federal Rules of Civil Procedure.

k.  Guideline 5 does not apply to a deposition under Fed.R.Civ.P. 31(a)(4).