In an opinion yesterday resolving a motion alleging that JP Morgan’s corporate representatives were not sufficiently prepared for depositions, Judge Francis observed that the common practice of objecting to the scope of a Rule 30(b)(6) notice is improper, and that the proper course is to move for a protective order:
Rather than resolving the issue of the scope of the 30(b)(6) deposition in advance, both sides proceeded as if they did not need to negotiate with each other or seek the Court’s assistance. In this, the defendants were more in the wrong. The weight of the authority holds that a party believing it has received a flawed 30(b)(6) notice may not merely rest upon its objections, but must move for a protective order . . . . This principle applies not only to objections that go to the notice in its entirety, but also to those that define the scope of the 30(b)(6) deposition.
Judge Francis noted, however, that “the issue is not free from doubt; at least one court takes the position that some objections to a 30(b)(6) notice may be adjudicated on a motion to compel, thus shifting the burden of going forward to the requesting party.” Accordingly, for purposes of this case at least, he did not deem JP Morgan to have waived its objections, and considered the application on the merits. None of the cases Judge Francis cited on either side of the issue were from other judges in the Southern District.