Experienced practitioners know that, pursuant to the plain language of Fed. R. Civ. P. 30(d)(1), depositions are ordinarily limited to seven-hours.[1] This limitation was introduced in the 2000 Amendments to the Federal Rules of Civil Procedure, on the grounds that “overlong depositions can result in undue costs and delays in some circumstances.”[2] However, this immediately raised the question of whether a Fed. R. Civ. P. 30(b)(6) deposition is also limited to seven hours total, or seven hours per designee.
The Advisory Committee on the Rules of Civil Procedure addressed this particular question in its 2000 Amendment Note: “[f]or purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition.”[3] This amendment directly replaced the 1993 Amendment to Fed. R. Civ. P. 30, which provided that a 30(b)(6) deposition should be “treated as a single deposition even though more than one person may be designated to testify.”[4]
Thus, it would seem that the Federal Rules of Civil Procedure clearly provide for seven hours per designee, right? And surely the Minnesota Rules of Civil Procedure provide the same? Wrong.
Federal 30(b)(6) Timing
District Courts in the Eighth Circuit have almost uniformly ruled that a Fed. R. Civ. P. 30(b)(6) deposition is limited to seven hours period. In Brinkman v. Sprinkler Fitters Local #417, the U.S. District Court for the District of Minnesota issued a potentially incongruent order. In that case, the defendant objected to the plaintiff’s 30(b)(6) notice on the grounds that it covered too many topics.[5] The Brinkman court, after narrowing the topics for deposition, specified that plaintiff would be limited to the one day, seven-hour rule of 30(d)(1).[6] Brinkman is not the only District of Minnesota case to limit a 30(b)(6) deposition to one day.[7] Indeed, only one District of Minnesota case, In re Medtronic, Inc. Implantable Defibrillator Prod. Liab. Litig., has even suggested that a Fed. R. Civ. P. 30(b)(6) deposition may last more than seven hours, although this was in the context of a multi-district litigation so its persuasiveness is unclear.[8]
In fact, only one district court in the Eighth Circuit has clearly adopted the Advisory Committee’s 2000 Amendment Note. In American Home Assur. Co. v. Greater Omaha Packing Co., Inc., 2013 WL 1875997 (D. Neb.) the U.S. District Court for the District of Nebraska ruled that “seven hours per 30(b)(6) representative . . . . is the baseline from which the Court will consider any further limitations or expansions of time.”[9] The American Home Assur. Co. court further clarified that the “30(b)(6) as-a-single-deposition rule” applies to the total deposition count, not the hour count within a deposition.[10]
While American Home Assur. Co. is a compelling interpretation of the clear Advisory Committee on the Rules of Civil Procedure’s Notes, and should be the operative rule, District of Minnesota courts have chosen to take a different tact. This incentivizes defending attorneys to designate multiple designees to slow down the progress of the deposition in an attempt to run out the clock. Given this, attorneys taking depositions in the District of Minnesota would be well-advised to first consult with opposing counsel to see if they may be amenable to extended deposition time.
Should this fail, counsel should seek to notify and work with the court well in advance of the intended deposition timeline to avoid delays. In support of the “separate depositions” approach, attorneys should refer to and rely on the procedural history of the 2000 Amendment when making their arguments.[11] Attorneys should also attempt to argue for an extension based on Fed. R. Civ. P. 30(d)(1), which requires courts to allow additional time if needed to fairly examine the deponent.
In any event, attorneys taking depositions in the District of Minnesota should not assume that they will receive more than seven hours total for a Fed. R. Civ. P. 30(b)(6) deposition. Plan accordingly.
State 30.02(f) Timing
Minnesota Rule of Civil Procedure 30 mostly mirrors Fed. R. Civ. P. 30. Specifically, Minn. R. Civ. P. 30.02(f), Minnesota’s 30(b)(6) equivalent, shares nearly identical language with Fed. R. Civ. P. 30(b)(6) in requiring an organization to select “one or more officers, directors, . . . managing agents,” or others to testify on its behalf.
However, while Minn. R. Civ. P. 30.04(b) presumptively limits depositions to one seven-hour day, neither the text of that Rule nor the Advisory Committee Comment provide a definitive stance on whether Minnesota adopted the “separate deposition per designee”. Instead, the Advisory Committee Comment states: “[t]his amendment is identical to the change in Fed. R. Civ. P. 30(d)(2) [now 30(d)(1)] made in 2000.”[12] The 1999 Comment expresses the same general sentiment that spawned the Fed. R. Civ. P. amendments, namely decreasing the discovery burden and focusing depositions, but does not address the “separate depositions” approach. Given the Minnesota Rules of Civil Procedureare meant to track with the Federal Rules of Civil Procedure, it is likely that Minnesota courts would follow their Federal counterparts in rejecting the “separate depositions” approach. Unfortunately, there is almost no precedent to guide Minnesota lawyers.
A Minnesota court has only addressed the 30.02(f) timing issue once. In Johnson v. Wright, the plaintiff served a single deposition notice for thirteen different entities with the deposition to be held simultaneously.[13] Importantly, the plaintiff filed this notice on the last day of discovery; due to concern over the timeliness of the request (and possibly as a penalty to plaintiff’s tardiness), the court limited the duration of the deposition to the 30.04(b) limit of seven-hours.[14] However, given the strange procedural timing of plaintiff’s deposition notice, Johnson is of limited precedential value.
Thus, the advice for Minnesota state attorneys is the same for District of Minnesota attorneys. Work ahead of time to ensure you will have ample time to conduct the deposition. If opposing counsel is unwilling to work with you, attorneys should refer the court to the Advisory Committee’s desire to mimic the Fed. R. Civ. P. 2000 amendment to push for additional time. Again, if a court does not take the “separate depositions” approach, Minn. R. Civ. P. 30.04(b) also specifies that a court must allow additional time if needed for a fair examination. Ultimately, attorneys taking a Minn. R. Civ. P. 30.02(f) deposition should assume they will only receive seven hours total, regardless of the number of designees put forward by the deposed entity
If you have been served with a Fed. R. Civ. P. 30(b)(6) or Minn. R. Civ. P. 30.02(f) deposition notice, the experienced attorneys at Eckland & Blando can guide you through your rights and options.
[1] Research and drafting assistance providing by Tommy Harshaw.
[2] Committee Notes on Rules — 2000 Amendment to Fed. R. Civ. P. 30
[3] Committee Notes on Rules — 2000 Amendment to Fed. R. Civ. P. 30
[4] Committee Notes of Rules – 1993 Amendment to Fed. R. Civ. P. 30.
[5] Brinkman v. Sprinkler Fitters Local #417, Case No. 19-cv-2981 (KMM/TNL), 2022 WL 420881 (D. Minn. 2022)
[6] Id. at *9.
[7] See, e.g., Inline Packaging, LLC v. Graphic Packaging Int’l, Inc., No. 15-CV-3183 (ADM/LIB), 2018 WL 9919939, at *12 (D. Minn. Jan. 23, 2018); Carlson, Inc. v. Int’l Bus. Machs. Corp., No. 10-3410 (JNE/TNL), 2011 WL 13135645 (D. Minn. Nov. 7, 2011).
[8] No. CIV 05MD1726 JMR/AJB, 2007 WL 846642, at *2 (D. Minn. Mar. 6, 2007)
[9] Id.
[10] Id.
[11] The Advisory Committee Draft Minutes from April of 1999 cites specific concern for 30(b)(6) multi-designation as being the driving force behind the Advisory Committee Note. See Draft Minutes, Civil Rules Advisory Committee, April, 1999 at 21.
[12] Advisory Committee Comment—2006 Amendment to Minnesota Rules of Civil Procedure, Rule 30.04.
[13] Johnson v. Wright, No. 27-CV-20-2012, 2021 WL 7630245, at *4 (Minn. Dist. Ct. 2021)
[14] Id.