Minnesota depositions: the noticing party picks in person or remote, and objecting is uphill

Minnesota is one of the few states to write the in-person-versus-remote argument into the rule, and it resolves it firmly in favor of whoever noticed the deposition. If you want the other format, the burden is yours.

The election, and how to fight it

Rule 30.02 requires the notice to make the choice:

The notice shall further state whether the deposition shall be conducted in person or by remote technology.

Then it sets out what happens if someone disagrees:

1) A party or party-deponent may object to the noticing party's election of an in person or remote-technology deposition. A party objecting to the noticing party's election must meet and confer in good faith with the noticing party promptly after objecting. If, after the meet-and-confer, the parties are unable to resolve their dispute, the objecting party may bring in a motion for a protective order before the court in which the action is pending. The court shall not sustain the objection unless the objecting party demonstrates good cause that the noticing party's election should be overruled.

Four steps, in order, and the last one is the point.

The standard is the whole story. This is not a balancing exercise between two reasonable preferences; the noticing party's choice stands unless the objector affirmatively shows good cause to displace it. A general preference for meeting witnesses in person, or a general preference for saving travel, is unlikely to be enough on its own.

Non-parties get the same route, with one difference. A non-party deponent may also object, and "[a]n objecting non-party has the same obligation as an objecting party to meet and confer in good faith with the noticing party" before involving the court. Where they cannot agree, it is the noticing party who moves for an order — so a non-party's objection puts the motion burden on the party who wants the deposition.

That asymmetry is worth knowing from both sides. A non-party who objects and confers in good faith has done what the rule asks; the next filing is somebody else's.

When you may start

Rule 30.01 allows a deposition "[a]fter service of the summons" of "any person, including a party," and attendance of non-parties "may be compelled by subpoena as provided in Rule 45."

Minnesota's subpoena rule has features that matter when the deponent is a stranger to the case — the sanction for using a subpoena without notifying every party, the county-based travel limit, and the right of a non-party professional to be paid for preparation time. See Minnesota subpoenas.

The notice

Rule 30.02 requires written notice to every other party stating the time and place, the deponent's name and address if known, and — as above — the format. Where the name is unknown, a general description sufficient to identify the person or the class or group they belong to will do.

Objections during the deposition

Rule 30(c) keeps the deposition moving whatever is objected to:

All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings shall be noted by the officer upon the deposition; but the examination shall proceed, with the testimony being taken subject to the objections.

The design is the same everywhere it appears: note it and carry on. The objection is preserved, the answer is given, and the admissibility question is decided later by the court rather than at the table.

Minnesota states no separate limit on instructing a witness not to answer, so the ground for any such instruction has to come from the protective-order provisions in Rule 26 and the general law of privilege. Where a witness is instructed not to answer and you disagree, the Minnesota motion to compel discovery is the remedy.

Stopping or limiting a deposition

Rule 30.04 gives a choice of two courts:

At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition

The standard is the same wherever this provision appears — bad faith, or conduct that unreasonably annoys, embarrasses or oppresses the deponent or a party. It is not a remedy for a deposition that is merely long or hostile. Either the trial court or the district where the deposition is happening — useful where the witness and the case are far apart.

Deposing an organization

Rule 30.02 allows a party to name a corporation, partnership, association or governmental agency as the deponent and describe with reasonable particularity the matters for examination, with the organization designating those who will testify on its behalf.

The format election above applies to that deposition like any other, so a notice for an organizational deposition must state whether it will be in person or by remote technology — and an organization that objects has the same obligations as any other party-deponent: object, meet and confer promptly, and then demonstrate good cause. Where multiple designees are involved, settling the format once for all of them is usually easier than litigating it designee by designee.

A short checklist

Noticing one:

1. State the format in the notice. The rule requires it, and the choice is yours to make.
2. Expect to keep your choice unless the objector shows good cause.
3. Confer in good faith if someone objects; the rule requires it of them, and a court will look at both sides.
4. Be ready to move yourself if a non-party objects — the motion falls to you.
5. Check the subpoena rules before deposing a non-party.

Objecting:

1. Object promptly, then meet and confer promptly. The sequence is prescribed.
2. Build a good-cause record — a specific reason this witness, this case, this format.
3. Move in the court where the action is pending, not elsewhere.
4. If you are a non-party, confer and stop. The next move is the noticing party's.
5. Remember the standard. The objection fails unless you affirmatively demonstrate good cause.

Where these rules live

• Minn. R. Civ. P. 26 — General Provisions Governing Discovery
• Minn. R. Civ. P. 28 — Persons Before Whom Depositions May Be Taken
• Minn. R. Civ. P. 30 — Depositions Upon Oral Examination
• Minn. R. Civ. P. 32 — Use of Depositions in Court Proceedings
• Minn. R. Civ. P. 45 — Subpoena
• Minnesota subpoenas
• Minnesota motion to compel discovery

This page explains what the rules say. It isn't legal advice, and what amounts to good cause for overruling a format election is developed in case law this site doesn't cover.