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Over 135 leading companies and organizations have signed a letter opposing a proposed change to the federal court rules that govern depositions.

The proposal would require both parties to confer over deposition topics, including the identity of each person the company designates to testify on its behalf. The judicial advisory committee on federal rules is considering the amendment at a public hearing in Washington, D.C., on Friday.

The change “would provoke time-consuming and costly new discovery disputes as counsel and courts struggle to square the change with the well-settled and well-grounded law,” the letter states.

Alex Dahl, general counsel to Lawyers for Civil Justice, worked with in-house counsel at some of the companies to help draft the letter. Dahl's group is a national coalition of defense trial lawyer organizations, law firms and corporations.

Dahl said in an interview, “Right now the law is well settled that the corporation has the right to choose the witness that speaks on its behalf in a deposition. [The proposal] opens up witness selection to gamesmanship,” by allowing the other party to weigh in on who represents the company.

He called the proposed rule, known as Federal Rule of Civil Procedure 30(b)(6), vague as to the timing involved because it imposes a duty to confer that continues indefinitely.

“Suppose I choose 'Cindy' as my witness, and you as the opposing party don't want that choice,” Dahl explained. “How long do we have to talk about it before we've satisfied the rule's obligation to confer? And what if I don't change my mind; when does the obligation stop?”

It's not that his organization opposes changing the rule, he said. “We just think the committee should change it to solve other problems, to help the parties focus on topics to be covered and to have a meaningful conference to understand what the deposition is really going to be about.”

Lawyers for Civil Justice joins a host of other organizations, defense counsel and corporate law firms opposing the rule change. Among the 138 signers of the letter were American Airlines Inc., Bank of America Corp., Exxon Mobil Corp., Ford Motor Co., General Electric Co., General Motors Co. and Novartis Pharmaceuticals Corp.

“But it's not really a plaintiff versus defendant thing,” Dahl said. “Corporations file suits too and are plaintiffs too. These are rules that our corporate members think should be fair to both sides.”

Not surprisingly other lawyers and groups, such as the National Consumer Law Center and the National Association of Consumer Advocates, have taken an opposite view. Their comment letter argued that the proposal “represents a reasonable change that would facilitate fact-finding, preserve parties' resources and promote judicial economy.”

The National Association of Manufacturers drafted its own comment letter Thursday, signed by Graham Owens, the group's director of legal and regulatory policy.

Owens told Corporate Counsel, “Manufacturers have been talking about the abuse of this rule for years, and it is certainly good to see that the advisory committee understands the need for change. The proposed changes, however, would only make things worse on all sides.”

Owens explained that what's needed is “real reform that addresses the underlying problem with [these] depositions—the lack of clarity as to the scope and use of the rule.”

His group's recommendation is to withdraw the proposal and explore more meaningful fixes that would address the root causes of disputes during the process.

Two in-house counsel from the Ford said in their separate comment letter that the proposal gives rise to a whole new category of discovery abuses and disputes.

In a blunt assessment, assistant general counsel Beth Rose and counsel Brittany Schultz wrote, “Pretending these depositions involve the sincere pursuit of truth belies numerous specific experiences … Creating rules, as the committee proposes to do, that ignore the tactical leverage sought and exploited by the propounding party would solve nothing.”