On Friday, the Court unsealed an interesting Judge Bryson opinion on 30(b)(6) depositions.
As we've noted, Rule 30(b)(6) now parties to meet-and-confer prior to the deposition to resolve the scope of the testimony. But the rules leaves out the exact parameters of how and when parties object, and what happens when they do.
Judge Bryson's opinion addresses an instance where a responding party objected to a 30(b)(6) notice, designated witnesses on only portions of the noticed topics, and offered to meet-and-confer (an offer the noticing party never accepted).
As promised, the deponent was prepared to testify on only a portion of the topics. The noticing party took the deposition, and then moved for costs and fees for lack of preparation. They argued that the responding party had to either fully prepare its witness or seek a protective order.
The Court agreed that, generally, a party must produce a witness on topics absent a protective order:
Mr. Wang is correct that courts have found that objecting to a topic does not excuse a party’s obligation to produce a witness to testify regarding that topic, and that in that situation the party should move for a protective order rather than failing to produce the witness to be deposed.
Xin Wang v. Injective Labs Inc., C.A. No. 22-943, at 9 (D. Del. Nov. 12, 2024).
The Court disagreed, however, that a responding party needs to move for a protective order under these circumstances, i.e., where they objected and asked for a meet-and-confer, but the other side never responded:
In this case, however, Injective was not required to seek a protective order when Mr. Wang failed to respond to Injective’s objection to the scope of the deposition topics and its offer to meet and confer on that subject. Rule 26(c)(1) of the Federal Rules of Civil Procedure requires a party to confer with the opposing party in good faith, or attempt to confer, before seeking a protective order from the court. Similarly, Rule 30(b)(6) requires that the parties confer in good faith about the matters for examination either before or after the notice is served.
It is undisputed that Injective did not move a protective order regarding Mr. Wang’s Rule 30(b)(6) notice. But Injective has represented, and Mr. Wang has not disputed, that Injective provided its objections and proposed narrowing of the topics to Mr. Wang’s counsel with a request to meet and confer, and that Mr. Wang neither accepted nor explicitly rejected the request to negotiate over the scope of the topics. Under those circumstances, it was reasonable for Injective to believe that a protective order either was not necessary (if Mr. Wang was willing to accept Injective’s proposal regarding narrowing the topics for the Rule 30(b)(6) deposition) or premature under at least Rule 26(c)(1) and Rule 30(b)(6) of the Federal Rules of Civil Procedure (given that the parties had not conferred about any disputes regarding the topics). The rules sensibly discourage parties from running to the court over every dispute during discovery. Instead, the parties are required to work in good faith to attempt to resolve disputes, or at least narrow and distill disputes, before raising them with the court.
To be sure, it would have been prudent for Injective to further engage with Mr. Wang’s counsel when Injective did not hear back from counsel about Injective’s proposed narrowing of the deposition topics. Doing so might have enabled Injective to determine whether there was a need to move for a protective order. But the blame does not fall principally on Injective’s shoulders. If Mr. Wang was unsatisfied with Injective’s proposed narrowing of the deposition topics, he had an obligation under Rule 30(b)(6) to confer with Injective and attempt to reach agreement.
Id. The Court denied the request for sanctions.
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