Revised Minnesota pretrial discovery rules, which took effect Jan. 1, now encourage remote depositions by allowing them to be set by notice alone. Former practice required either a court order or stipulation.
The changes are included in a package of rule amendments approved by the Minnesota Supreme Court late last year.
Rule 30.02 of the Minnesota Rules of Court eliminates the need for prior court approval of a remote deposition. New language leaves that choice to the party noticing the deposition. The rule provides that each deposition notice “shall … state whether the deposition shall be conducted in person or by remote technology.” A party objecting to a remote deposition may file for a protective order. However, per Rule 30.02(a)(1) and (2):
The court shall not sustain the objection unless the objecting party demonstrates good cause that the noticing party’s election should be overruled.
A party objecting to an in-person deposition has the same right to request a protective order, and the same burden to demonstrate “good cause” for a remote deposition instead.
The rule changes in Minnesota and Washington align with developments in modern civil litigation practice across the country, where courts and lawyers are increasingly reliant on technology to advance cases as efficiently as possible.
Elsewhere, Rule 30.02(b) eliminates the need for a dedicated videographer in cases in which a video recording of the remote deposition is desired. A video recording generated by Zoom, or by any other remote deposition platform used to facilitate the deposition, will be sufficient. The new rule contemplates that the party taking the deposition will enable the recording and will “promptly provide” the recording to any party upon request.
New language in Rule 30.02(g) appears intended to save the new deposition procedure from unintended consequences: “[A] deposition taken by remote technology is governed by all other rules governing the taking of depositions unless the nature of the remote-technology deposition makes compliance impossible or unnecessary.” The commentary accompanying the rules changes is silent on what types of circumstances this might apply to.
Clearly, however, Minnesota’s new approach to deposition practice will empower litigators by giving them the ability to decide whether to conduct a deposition remotely or in person. This choice is presumptively the way the deposition will be conducted. The rule’s requirement that objectors demonstrate “good cause” in order to disturb a party’s choice of deposition format is another way that the new rule encourages litigators to manage their cases as they see fit.
Very recently, the Washington Supreme Court also revised its rules to allow remote depositions to be conducted without prior court approval. Unlike Minnesota’s new rules, however, Washington’s rule on remote depositions gives objectors a very short window to file for a protective order — just three days. The new Washington rules also guide judges’ determination of whether a party’s election of deposition format is appropriate by encouraging them to consider a non-exhaustive list of factors, including: the role of the witness, the complexity of the litigation, and whether the objecting party will be prejudiced by remote testimony.
The rule changes in Minnesota and Washington align with developments in modern civil litigation practice across the country, where courts and lawyers are increasingly reliant on technology to advance cases as efficiently as possible. Other jurisdictions are sure to follow their lead.
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