Related Practices

Minnesota’s Amended Rule 30.02 Embraces the Era of Remote Depositions

January 8, 2025

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Minnesota Rule of Civil Procedure 30.02 has been amended to expressly authorize parties to conduct depositions via remote technology and require a party seeking to take a deposition to elect between deposing in-person or remotely, effective January 1, 2025.[1] This change reflects the trend towards remote litigation practice and remote work in the legal profession.

Before the amendment, the rule permitted telephonic depositions only by stipulation of the parties or motion to the court, and Rule 30.02 did not address remote depositions by videoconferencing technology at all.[2] This added complexity to an increasingly digital discovery process, and it was out of sync with the increasingly remote practice of litigation.[3]

Under the new rule, the deposition notice must state whether the deposition will be conducted in person or by remote technology.[4] The amended rule permits either party to record a remote deposition using the recording technology of the video conferencing platform (e.g., Zoom, Google Meet, or Microsoft Teams) and does not require that a certified videographer enable the recording.[5] The rule also authorizes the use of virtual or filtered background features but prohibits the sound or visual distortion of the appearance or demeanor of deponents or attorneys.[6]

The amended rule establishes the noticing party’s election as the presumptive method for conducting the noticed deposition, but an objecting party may rebut the election upon a showing of good cause. Under the amended rule, if a party or party-deponent objects to the election of remote or in-person deposition, the parties must “promptly” meet and confer.[7] If a party objects and the dispute is not resolved through the meet-and-confer, the objecting party may move for a protective order.[8] If the objector is a non-party deponent, the noticing party may move to compel if the dispute cannot be resolved.[9] In either case, the rule requires the court to rule in favor of the noticing party’s election unless the objecting party shows good cause to overrule that election.[10]

Electing a remote deposition does not alter existing notice requirements. Notice must still be given in writing and must specify the deponent's name and address, the deposition’s location, and the recording method, and depositions must still be conducted before an officer appointed or designated under Rule 28.[11] The rule specifies that a deposition taken by remote technology is taken in the district and place where the deponent is to answer questions.[12]

The new rule ensures Minnesota courts are aligned with the expectations of parties and attorneys in the state and across the country. The Minnesota General Rules of Practice have already been amended to address the use of remote technology.[13] In a September 2022 report, the American Bar Association found that 88% of surveyed attorneys favored courts allowing remote depositions.[14] In a January 2024 report, Thomson Reuters found that clients consider efficient processes to be the most significant part of their cost-control strategies with in-house and outside counsel.[15] Remote depositions can improve efficiency by reducing time expended on less-productive tasks like aligning schedules and traveling, resulting in cost savings passed along to clients.

The ABA has cautioned that attorneys have an ethical obligation to understand the technology used in remote depositions, underscoring the importance of adopting a legal framework that identifies what technology can be used (e.g., videoconferencing platforms) and how.[16] In this regard, although Minnesota’s rule change goes a long way to conform with current deposition practices, it is not as specific as some jurisdictions. For example, under Washington’s rules of civil procedure, a remote deponent is expressly prohibited from referring to “any notes or any electronic or other means used for communication, such as e-mail and messaging.” [17] Minnesota’s amended Rule 30.02 does not address the use of other features of remote technology, such as private messages through the chat feature on a videoconferencing platform, email or other electronic communications, or reference to notes during a remote deposition. Given the absence of such guidance in the Minnesota rules, parties may wish to stipulate to a remote deposition protocol. This could include such measures as requiring mobile phones be turned off, chat features be disabled, all parties and attorneys remain on camera, and the deponent’s hands to remain visible.[18]

The COVID-19 pandemic accelerated the use of remote depositions out of necessity, but it is clear that remote depositions are here to stay. While not appropriate in every case, remote depositions can be an effective and efficient litigation tool. Minnesota’s amendment to Rule 30.02 embraces the digital shift in legal practice and aligns with preferences of many attorneys and clients, enhancing flexibility and accessibility while maintaining procedure integrity.

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[1] See Ord. Promulgating Amends. to the Rules of Civ. P., No. ADM04-8001 (Minn. Nov. 1, 2024).

[2] See Minn. R. Civ. P. 30.02(a) (eff. Jul. 1, 2022 to Dec. 31, 2024).

[3] Minn. R. Civ. P. 30.02(g) (eff. Jul. 1, 2022 to Dec. 31, 2024) (“The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means.”).

[4] Minn. R. Civ. P. 30.02(a) (eff. Jan. 1, 2025) (“The notice shall further state whether the deposition shall be conducted in person or by remote technology.”).

[5] Minn. R. Civ. P. 30.02(c)-(d) (eff. Jan. 1, 2025) (“A deposition conducted via remote technology may be recorded via a recording technology provided by the same recording technology, as an additional recording method.”).

[6] Minn. R. Civ. P. 30.02(d) (eff. Jan. 1, 2025) (“A deposition conducted via remote technology may be recorded via a recording technology provided by the same remote technology, as an additional recording method. … The appearance or demeanor of deponents or attorneys shall not be distorted … but a background filter or other virtual background may be enabled in a deposition conducted via videoconferencing technology.”).

[7] [7] Minn. R. Civ. P. 30.02(a)((2) (eff. Jan. 1, 2025) (“An objecting non-party has the same obligation as an objecting party to meet and confer in good faith with the noticing party prior to intervention by the court.”).

[8] Minn. R. Civ. P. 30.02(a)(1) (eff. Jan. 1, 2025) (“If, after the meet-and-confer, the parties are unable to resolve their dispute, the objecting party may bring a motion for a protective order before the court in which the action is pending.”).

[9] Minn. R. Civ. P. 30.02(a)(2) (eff. Jan. 1, 2025) (“If the objecting non-party deponent and the noticing party are unable to resolve their dispute, the noticing party may move for an order to compel the deposition consistent with the noticing party's election.”).

[10] Minn. R. Civ. P. 30.02(a) (eff. Jan. 1, 2025) (“The court shall not sustain the objection unless the objecting party demonstrates good cause that the noticing party's election should be overruled. … The court shall grant the motion unless the objecting non-party deponent demonstrates good cause that the noticing party's election should be overruled.”).

[11] Minn. R. Civ. P. 30.02(a), (d) (eff. Jan. 1, 2025) (“A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the name and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs.”).

[12] Minn. R. Civ. P. 30.02(g) (eff. Jan. 1, 2025) (“[A] deposition taken by remote technology is taken in the district and at the place where the deponent is to answer questions.”).

[13] See Ord. Promulgating Amends. to the Minn. Gen. Rules of P. for the Dist. Courts, No. ADM09-8009 (Minn. Aug. 24, 2023).

[14] Roberta Liebenberg & Stephanie Scharf, 2022 Practice Forward Report: Where Does the Legal Profession Go from Here? Lawyers Tell Us How and Where They Want to Work, at 29, Am. Bar. Assoc., Sep. 28, 2022.

[15] James Jones, et al., 2024 Report on the State of the US Legal Market: The Challenge of Targeting the Right Markets with the Right Offerings, at 22, Thomson Reuters, Jan. 3, 2024.

[16] Lynde Shely, et al., Formal Opinion 508: The Ethics of Witness Preparation, at 9, Am. Bar Assoc. Standing Com. on Ethics and Professional Responsibility, Aug. 5, 2023.

[17] Wash. R. Civ. Proc. 30(h)(7(C) (eff. Oct. 1, 2024) (“During the deposition … the deponent shall not refer to any notes or any electronic or other means used for communication, such as e-mail and messaging.”).

[18] Shelly, et al., , at 8, f. 35(citing Ngai v. Old Navy, No. CIV.A. 07-5653(KSH)(PS), 2009 WL 2391282 (D.N.J. July 31, 2009)) (citing a case where defense counsel texted witness during remote deposition and “plaintiff’s counsel noted that the deponent and defense counsel were only visible from the ‘chest up’ and that she was unable to observe defense counsel’s hands during the deposition”).