Rule 30.02(f) of the Minnesota Rules of Civil Procedure governs depositions of corporations or organizations. It provides for a notice of deposition to an “entity” rather than an individual. An entity can include a corporation, partnership, association or governmental body. An entity that is not a party to the lawsuit can be deposed by service of a subpoena. The Rule was amended effective July 1, 2022, and it now requires the party who notices the “entity” deposition to confer with the organization that is to be deposed about the matters for examination. This meeting, or discussion, must take place either before or promptly after the notice of deposition or subpoena is served. This is a notable procedural change to the Rule, and will require additional work on the part of the noticing party and the entity subject to the notice or subpoena.
Purpose of Rule 30.02(f) Amendment
The purpose of the amendment is to bring Rule 30.02(f) into conformity with the corresponding federal rule, Fed. R. Civ. P. 30(b)(6). The amendment applies to all cases pending in Minnesota state court on, or filed on or after, July 1, 2022.
Rule 30.02(f), as amended, provides:
(f) Notice or Subpoena Directed to an Organization
In its notice or subpoena, a party may name as the deponent a public or private corporation, or a partnership, an association, or a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf,; and it may set out, the matters on which each person designated will testify. Before or promptly after the notice or A subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a non-party organization of its duty to confer with the serving party and to make such a designation. The persons so designated must testify about information known or reasonably available to the organization. This paragraph (f) does not preclude a deposition by any other procedure allowed by these rules.
(Deletions are indicated by a line drawn through the words and additions are indicated by a line drawn under the words.)
Two New Obligations
The amendment imposes two new obligations on the party noticing the deposition: (1) the noticing party must confer in good faith with the entity about the matters for examination; and (2) if the noticing party wishes to depose a non-party, which would be accomplished through service of a subpoena, the subpoena must advise the non-party of the duty to confer with the noticing party about the matters for examination. The deposition notice or subpoena still must advise the entity of its obligation to designate a person or persons to testify about information known or reasonably available to the entity. The Rule still requires that the notice identify the subjects of the deposition with reasonable particularity. The person designated to testify on behalf of the entity still must testify about information known or reasonably available to the entity.
From a practice standpoint, the amendment places additional requirements on the party noticing the corporate designee deposition as well as the entity who is served with the deposition notice or subpoena. Counsel noticing a Rule 30.02(f) deposition, therefore, should build in additional time to ensure that they can “confer” with the entity that is receiving the notice of deposition or the subpoena. The “confer” requirement is built-in to alleviate discovery disputes and force those topics that are subject to legitimate objection to the surface. The noticing party may start to think about the Rule 30.02(f) notice (or subpoena) as an opening offer, like in a negotiation. The noticing party and the entity should be able to reach an agreement on a reasonable set of topics for the deposition. What is yet to be seen is whether the amendment to the Rule creates more motion practice because the two entities are now required to “confer” about the topics that are the subject of the examination.
If you have any questions about the amendment to Minn. R. Civ. P. 30.02(f), please contact one of the litigation attorneys at Lommen Abdo, P.A.