Update (November 16, 2016): Unlike the Minnesota Supreme Court’s decision discussed below, drawing a sharp distinction between “discovery depositions” and “depositions to preserve trial testimony,” the linked decision in the Sorin v. St. Jude lawsuit (discussed previously here) makes clear that “there is no difference between discovery depositions and deposition for use at trial” as far as the federal court for the District of Minnesota is concerned (Decision at p. 6). “Accordingly, if a party wishes to take a deposition prior to trial, standard discovery rules apply, including compliance with the pretrial scheduling order.”
This is great news for lawyers with time on their hands and unfortunate news for clients because the rule drives up the expense of discovery. The rule forces parties to take depositions that otherwise could be made contingent on later developments in a lawsuit (like postponing depositions until after a decision on summary judgment).
Men whipsawing lumber for boat building, Yukon Valley, ca. 1896
Update (Dec. 20, 2013): (under the headline, Snagged By the Litigation Whipsaw: Bank on Settlement or Prepare for Trial?): Minnesota civil litigators (and trial court judges) take heed: “We conclude that a deposition to preserve trial testimony of an unavailable, out-of-state witness is not covered by a general discovery deadline in a scheduling order.”
[T] he district court should consider all of the relevant evidence to determine whether good cause for denying a deposition request is established, including the following factors: (1) the primary purpose for taking the deposition (i.e., whether it is truly for preserving trial testimony or is a pretext for conducting late discovery); (2) the materiality and importance of the deposition testimony to the deposing party’s argument; (3) the potential for unfair prejudice to the opposing party; and (4) the amount of time remaining before the date set for trial.
Update (May 17, 2013): Mark Steffenson argued before the Minnesota Supreme Court for appellant Custom Conveyor Corporation, the issue being the trial court’s denial of CCC’s request to conduct trial depositions in advance of trial. “There are occasions when the unfortunate, the unforeseen happens. A good example is what happened here….” (A witness at trial got ill. Some testimony was taken by trial deposition.)
Steffenson takes the position that a party can take a trial deposition at any time without leave of court. Scheduling orders, Steffenson argues, play no part in trial depositions. If another party has a problem with an 11th hour trial deposition, the burden should be on this party to come to court and move for a protective order or move to quash.
Shouldn’t the Minnesota Supreme Court apply a “just cause” burden on the party seeking discovery outside the discovery period?
Others on the Court (Justice G. Barry Anderson), with personal injury experience, where “late-in-the-process” depositions of medical experts, for example, are taken in the days or weeks before trial. This is commonplace. Can it really be that an injured plaintiff MUST go to court to get permission to take such an expert trial deposition (of his own expert)?
Paul Shoemaker argued for respondent T/C Monorail. Shoemaker emphasized that the Nevada witnesses never had agreed to testify in Minnesota. Shoemaker emphasized that there has been no offer of proof as to what testimony they would have offered.
This looks to be a close case with some on the Court interested in respecting trial court’s control over its docket and others with a greater concern for pragmatic considerations such as pretrial depositions for experts who, often, simply cannot be available on call over weeks or months of trial.
Update (January 23, 2013): This past week, the Minnesota Supreme Court granted the petition for review for the case described below. Maybe the Supreme Court will see the merit in the position gently advocated below, suggesting that there is a benefit to distinguishing “trial depositions” and “discovery depositions.”
Original Post (October 29, 2012): Whipsaw (verb): to beset or victimize in two opposite ways at once, by a two-phase operation, or by the collusive action of two opponents, as in, “Wage earners were whipsawed by inflation and high taxes.”
When the stakes of civil litigation are less than, say, $200-300,000, which is the case for the huge majority of business disputes, business litigators and their clients are whipsawed between preparing for trial, a statistically remote risk and, with fees and costs that can exceed the amount of money at stake, and conserving client resources, positioning the case for negotiated resolution or settlement.
What does this mean concretely? It means that civil litigants will often procrastinate in litigation in the hope that the case will settle (as the vast majority do) so they will not have to incur needless expense of motion practice and trial preparation in a case that is highly likely to settle ultimately.
But, of course, sometimes the remote risk materializes — the case is headed for trial — and sometimes a litigant is behind the eight-ball, having not prepared.
This would seem to have been the case for Custom Conveyor Corporation, which tangled with T/C American Monorail in connection with the construction of four steel hoppers to be fabricated for a project in Las Vegas, Nevada. (The product provided by T/C American was apparently unacceptable and the dispute was over who, under the parties’ contract, was responsible for that.)
CCC probably did not envision a jury trial in Sherburne County, Minnesota before Judge Mary A. Yunker, over the $300,000 contract gone bad. Probably, it decided to go through fact discovery without taking some depositions to save some money. Then, as trial approached, it seems to have realized too late that some additional witnesses would be necessary.
The Minnesota Court of Appeals, in a published opinion last week, held that:
Although neither the Minnesota Supreme Court nor this court has addressed the precise issue raised here, we have rejected any distinction between discovery depositions and trial depositions in the context of evidentiary rulings….The same reasoning applies here, and we conclude that the district court did not abuse its discretion by applying the discovery deadline to Custom Conveyor’s request to conduct trial depositions….Because neither Minnesota’s rules nor its caselaw recognizes a distinction between discovery and trial depositions, because federal caselaw recognizing such a distinction is distinguishable and lacking persuasive value, and because Custom Conveyor did not show good cause for amending the scheduling order, we conclude that the district court did not abuse its discretion by denying Custom Conveyor’s requests for trial depositions.
This might be an unfortunate holding in the context of many commercial disputes because it arguably interferes with a moderate middle-of-the-road solution of the whipsaw problem: a sort of two-stage litigation process that might otherwise organically evolve. The parties would first engage in basic discovery — key document exchanges, key depositions — then take a run at settlement (or summary adjudication) and then, if there is true impasse, a second stage of “prepare for trial” discovery ensues.
Instead, as civil trial schedules are generally devised in Minnesota, there is 6-12 months of “fact discovery” followed, essentially, by 3-6 months for dispositive motion briefing, arguing, and deciding, and then, after that, if no one wins on a motion for summary judgment, the case is set for t rial and no more discovery is allowed.
As a consequence of having the “fact discovery period” firmly enforced, then, civil litigants are forced either to expend resources to prepare for trials that are rarely going to happen or risk trials without full preparation.