Howard Norsetter, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1731

Howard Norsetter,
Appellant,

vs.

Minnesota Twins, LLC,
Respondent.

Filed August 24, 2020
Affirmed in part, reversed in part, and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CV-18-17629

Steven E. Uhr, Bloomington, Minnesota (for appellant)

Jason R. Asmus, Danielle W. Fitzsimmons, Taft Stettinius & Hollister LLP, Minneapolis,
Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Talent scout Howard Norsetter sued the Minnesota Twins alleging age
discrimination after the ball club eliminated his scouting position in Australia and did not
consider him for open scouting positions in the United States. The district court granted
the Twins’ motion for summary judgment, reasoning that the club had a legitimate,
nondiscriminatory reason for terminating Norsetter and that Norsetter could not show that
2
the reason was a pretext for age discrimination. Norsetter argues on appeal that the district
court abused its discretion by limiting discovery and that it misapplied the law when it
granted the Twins summary judgment. We affirm in part and reverse in part the district
court’s discovery decisions and remand for further discovery , and we therefore reverse
summary judgment.
FACTS
Howard Norsetter, a United States citizen who has maintained permanent residence
in Australia since 1984, began working as a scout for Minnesota Twins LLC, in 1990. The
Twins employed Norsetter through a series of renewed, one-year contracts. The Twins last
renewed his contract in September 2016 for a term to expire on December 31, 2017. Its
decision not to renew is at the heart of this litigation.
Norsetter’s scouting duties included evaluating athletes and making
recommendations on whether the team should sign them. He developed relationships with
players, parents, coaches, and agents, and he established contacts worldwide. He scouted
in Australia and also regularly traveled to different countries to evaluate athletes, including
Japan, Korea, Taiwan, South Africa, and all over Europe. From 2006 until the team
discharged him in 201 7, Norsetter also served as the team’s m inor-league international
supervisor. In that post, he continued his scouting duties and supervised employees in
different parts of the world.
In September 2017, some of the Twins’ upper-level managers met to discuss
changing the team’s international scouting strategy. The meetings included the Twins’
general manager Thaddeus Levine, executive vice president Derek Falvey, and director of
3
player personnel Michael Radcliff. Levine had sent an email to most members of the group
in August 2017 discussing the Twins’ “Scouting Philosophy” and “Scouting Personnel”
for the following year. Levine’s email revealed that he wanted to reduce the Twins’
presence in the Australia scouting market and increase the team’s effort in Latin America.
The email listed Norsetter and three other international scouts as “[e]mployees with whom
we recommend parting ways.” Radcliff, who was also Norsetter’s direct supervisor,
emailed in response advocating against discharging Norsetter. He said he believed that they
should discuss a “different application of [Norsetter’s] skill set,” which “would probably
need to include [a] move.”
Radcliff informed Norsetter that it was uncertain whether his contract would be
renewed. Norsetter told Radcliff he wanted to remain with the Twins. He said that he was
willing to take a substantial pay cut and limit his efforts to Australia alone. After Radcliff
explained that the Twins did not want to focus on Australia, Norsetter said that he would
be willing to relocate to the United States and to hold any other position with the Twins.
When the managers met in September 2017, Radcliff advocated for keeping Norsetter, but
he could not persuade the others. The Twins informed Norsetter that the organization
would not renew his contract. Its notification letter indicated that the Twins had made a
“business decision” to eli minate Norsetter’s position of minor- league international
supervisor. It did not consider Norsetter for other scouting positions.
After the organization discharged Norsetter, it hired eight new scouts in autumn
2017 for scouting positions within the United States. These domestic scouts were mostly
4
in their 30s and 40s, but two were at least 45 years old. Norsetter was 59 years old when
the Twins terminated his employment.
Norsetter sued the Twins, alleging that the organization discriminated against him
on the basis of age in violation of the Minnesota Human Rights Act. His civil complaint
alleged that the Twins’ decisions to discharge him and not to consider him for other
positions were motivated by his age and that the Twins’ explanation for his dismissal was
a pretext for discrimination. The district court appointed a special master to hear and decide
all discovery matters.
The Twins moved for summa ry judgment , arguing that the undisputed facts
established that the Twins’ choice to discharge Norsetter was a legitimate business decision
not motivated by his age. The district court granted the Twins’ motion and ordered the
lawsuit dismissed. It determined that Norsetter made a prima facie case of age
discrimination but that the Twins had given a legitimate, nondiscriminatory reason for
terminating Norsetter and that Norsetter failed to show that the reason was a pretext for
discrimination.
Norsetter appeals.
D E C I S I O N
Norsetter challenges the district court’s summary-judgment decision. He maintains
that the district court improperly limited his discovery and that, despite the improper limits,
he presented evidence sufficient to survive summary judgment. We affirm some of the
district court’s discovery decisions but reverse others, therefore reversing summary
judgment and remanding the case to the district court to permit further discovery. Once
5
that discovery is complete, the parties will be in a better position to decide whether to
pursue summary judgment. We offer no opinion on the merits of the district court’s
summary-judgment decision.
The Twins’ interrogatory answers complied with rule 33.01(d).
Norsetter argues that some of the Twins’ interrogatory answers do not comply with
Minnesota Rule of Civil Procedure 33.01(d) because they do not contain the proper
declaration language. The district court rejected this argument. The issue requires us to
interpret a rule of civil procedure, a task we undertake de novo. See State v. Lugo,
887 N.W.2d 476, 482 (Minn. 2016).
Norsetter argues that the Twins’ interrogatory answers were deficient under the
controlling rule of civil procedure because they failed to include language stating that the
respondent declared under perjury that everything stated in the interrogatory answer is true.
Norsetter misunderstands the rule:
Answers to interrogatories shall be stated fully in
writing and shall be signed under oath or penalty of perjury by
the party served . . . .
All answers signed under penalty of perjury must have
the signature affixed immediately below a declaration using
substantially the following language: “I declare under penalty
of perjury that everything I have stated in this document is true
and correct.”
Minn. R. Civ. P. 33.01(d). The rule expressly authorizes answers that are either “signed
under oath or penalty of perjury,” not that are signed under oath and penalty of perjury. Id.
(emphasis added). Apparent from the rule’s plain language, only answers signed under
penalty of perjury require the supposedly missing declaration language. This makes sense
6
as there is no need to include the declaration language for an oath because, by definition,
an oath has the legal effect of subjecting a person to the penalty of perjury for false
statements. Black’s Law Dictionary 1239 (10 th ed. 2014) (defining oath). The Twins’
interrogatory answers were signed under oath because they were notarized. Every notary
public has the power to administer oaths, Minn. Stat. § 359.04 (2018), and an oath may be
administered in writing by including the language, “Subscribed and sworn to before me,”
Minn. Stat. § 358.09 (2018). The Twins’ answers were notarized and included this
language. Norsetter fails to show that the Twins’ interrogatory answers were legally
deficient or that the district court improperly considered them for summary judgment.
Norsetter forfeited any right to challenge the appointment of the special master by failing
to object on the record.
Norsetter argues that the district court erred by appointing a special master to
address discovery matters. The district court appointed the special master “to hear and rule
on all discovery issues.” A district court may appoint a special master for limited purposes,
including to “address pretrial and post-trial matters that cannot be addressed effectively
and timely by an available district judge.” Minn. R. Civ. P. 53.01(a)(3). We review the
appointment of a special master for an abuse of discretion. See Brickner v. One Land Dev.
Co., 742 N.W.2d 706, 712 (Minn. App. 2007) (determining that the district court made
“appropriate use of the skills of a special master”), review denied (Minn. Mar. 18, 2008).
Norsetter forfeited his right to challenge the appointment of the special master
because he participated in the proceedings before the special master without objection. “A
party may not consent to a legal proceeding by participating in it and later challenge the
7
validity of the procedure.” N. States Power Co. v. Gas Servs., Inc. , 690 N.W.2d 362, 366
(Minn. App. 2004); see also Bohles v. Boland, 47 N.W. 155, 155 (Minn. 1890) (holding
that a party’s appearance before a referee amounts to consent to use of the referee). The
district court’s March 25, 2019 order appointing the special master indicates that the parties
had agreed to the appointment during a March 6 telephone conference. Norsetter
maintained at oral argument on appeal that he objected to the appointment during the phone
conference, but the record does not contain a transcript or summary of the phone
conference and reveals no objection at any time. As they say, if it’s not in the record, it
didn’t happen. By failing to object, Norsetter implicitly consented to the use of the special
master to decide all discovery issues, and he cannot challenge that appointment on appeal.
The district court correctly determined that Norsetter could not serve a subpoena duces
tecum on the MLB by personally serving the Twins.
Norsetter argues that the district court improperly denied his motion to compel
Major League Baseball (the MLB) to comply with a subpoena duces tecum . Norsetter
served a subpoena in April 2019, demanding that the MLB produce documents relating to
potential age discri mination among other MLB clubs. But rather than serve the MLB,
Norsetter served the subpoena “on the Minnesota Twins, LLC, a member and agent of
Major League Baseball.” After counsel for the Twins informed the MLB about the service,
a representative of the MLB commissioner wrote to Norsetter’s counsel saying that neither
the Twins nor the organization’s representatives were agents of the MLB and that,
therefore, the MLB had not been served process. Norsetter still did not serve the MLB, and
he instead moved the district court to compel the MLB to comply with the subpoena. The
8
special master determined that Norsetter’s attempted service was ineffectual because
service on the Twins was not effective service on the MLB.
Norsetter argues on appeal that the district court should have compelled the MLB
to comply based on the rules of civil procedure. A subpoena that commands production of
documents “must be served on the subject of the subpoena.” Minn. R. Civ. P. 45.02(a). We
interpret and review the application of the rules of civil procedure de novo. In re Skyline
Materials, Ltd., 8 35 N.W.2d 472, 474 (Minn. 2013). Our review leads us to affirm the
district court’s decision denying Norsetter’s motion to compel.
Consistent with how the parties describe the arrangement, we have previously
described the MLB as an unincorporated association consisting of 30 baseball teams,
including the Twins as a member. Metro. Sports Facilities Comm’n v. Minn. Twins P’ship,
638 N.W.2d 214, 218 (Minn. App. 2002), review denied (Minn. Feb. 4, 2002). Rule 45
does not address how to serve a subpoena on an unincorporated association. Norsetter
argues that, because a summons may be served on a partnership or association by delivering
a copy to a member of the partnership or association, see Minn. R. Civ. P. 4.03(b), by the
same method a party may s erve an association with a subpoena. But the rules do not say
so. The rules for service of a summons and service of a subpoena are indeed parallel in
some respects, such as indicating who may do the serving. See Lewis v. Contracting Nw.,
Inc., 413 N.W.2d 154, 156 (Minn. App. 1987) (observing that both a summons and a
subpoena may be served by any nonparty age 18 or older). But they plainly differ as to the
person upon whom service must be made. Rule 45.02(a) requires that subpoenas be served
specifically “on the subject of the subpoena, ” while rule 4 does not use that limiting
9
language. It instead contemplates service of a summons on an individual, on a partnership
or association, on the state, or on a corporation. Minn. R. Civ. P. 4.03(a)–(e). We construe
rule 45.02(a) as indicating that a party must serve a subpoena duces tecum directly on the
person or entity who must comply with the subpoena, not on one of its agents or members.
This literal construction is most practical here, because any of the documents Norsetter
sought would most logically be maintained by the MLB and other teams within the league,
not the Twins. Because Norsetter did not serve the subpoena duces tecum on the MLB—
the subject of the subpoena—the district court properly denied his motion to compel the
MLB to comply.
The district court improperly granted a blanket protective order preventing Norsetter
from deposing three Twins officers.
Norsetter challenges the district c ourt’s granting of a protective order preventing
him from deposing three Twins officers. Norsetter sought to depose Twins owner Bill
Pohlad, owner and executive chairperson Jim Pohlad, and president and CEO Dave St.
Peter. The Twins sought to prevent Norsetter from deposing any of these officers, arguing
that they deserve special protection because they are senior executives lacking firsthand
knowledge of the Twins’ employment practices generally or Norsetter’s employment
specifically. The district court pr ovisionally granted the Twins’ motion for a protective
order “until less burdensome avenues of obtaining information relevant to [Norsetter’s]
termination have been exhausted, and evidence exists that the deponents have information
regarding [Norsetter’s] termination.” The special master later determined that Norsetter

10
had not met that burden. This court reviews a district court’s decision granting or denying
a protective order for an abuse of discretion. In re Paul W. Abbott Co., 767 N.W.2d 14, 18
(Minn. 2009).
Regarding discovery, the district court “may make any order which justice requires
to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense.” Minn. R. Civ. P. 26.03(a). The district court has “broad discretion to fashion
protective orders and to order discovery only on specified terms and conditions.” Erickson
v. MacArthur, 414 N.W.2d 406, 409 (Minn. 1987). The Twins organization argues that the
protective order was proper because district courts commonly give special consideration to
prevent the deposition s of high-level corporate officers. The parties cite no Minnesota
precedent adopting that approach, but at least in unpublished orders, the federal district
court in Minnesota seems to have recognized it. See Bombardier Recreational Prods., Inc.
v. Arctic Cat, Inc., No. 12-cv -2706, 2014 WL 5685463, at *2 (D. Minn. Sept. 24, 2014)
(“[C]ourts are wary of allowing parties to depose high-level executives where the deposing
party fails to establish that the executive has some unique knowledge relevant and critical
to the case at hand.”); Cardenas v. Prudential Ins. Co. of Am., No. Civ. 99-1421, 2003 WL
21293757, at *2 (D. Minn. May 16, 2003) (denying party’s motion to compel the
depositions of top executives because the party could not show that the executives
“possess[ed] any information that could not be obtained from lower level employees or
other sources”). But even in so recognizing the approach, the court appreciated that, under
the federal rules, “a party seeking to prevent a deposition carries a heavy burden” and that
11
“it is very unusual for a court to prohibit the taking of a deposition altogether absent
extraordinary circumstances.” Bombardier, 2014 WL 5685463, at *3 (quotation omitted).
We begin with the limitation embodied in the state rule, which is that the district
court may prevent a deposition to protect a person specifically from “annoyance,
embarrassment, oppression, or undue burden or expense.” Minn. R. Civ. P. 26.03(a). The
rule does not suggest any general elite-executive protection or indicate that a protective
order for an organization’s “high-ranking” individuals can rest on anything less than what
must be shown to justif y a protective order for anyone else. And even in the face of the
broad discretion we afford the district court on this matter, see Erickson, 414 N.W.2d at
409, we do not believe that the Twins have made a showing for the blanket protection
afforded here.
It appears that the individuals might have information relevant to the lawsuit.
Norsetter sought to depose the officers to obtain information about several of the issues,
including the Twins’ reasons for discharging him and not considering him for other
scouting positions, changes in the Twins’ scouting strategy, and the Twins’ general policies
on discrimination and training. They are only one level above the other high-level
managers—executive vice president Derek Falvey and general manager Thaddeus
Levine—who say they made the decision to discharge Norsetter and to shift the Twins’
international scouting strategy. Given that developing scouting strategy for a n MLB team
is presumably one of its major business decisions, and given the close proximity between
the three intended deponents and the alleged decision-makers here, any of the three might
reasonably have information relevant to Norsetter’s allegations. Broadly preventing
12
Norsetter from deposing them on the notion that they were too far up and removed from
the litigation issues appears unsupported on relevancy grounds.
Under these circumstances, the Twins have not persuasively explained why it was
proper for the district court to place the burden on Norsetter to make some additional
showing that the officers had relevant information not available elsewhere. On balance
against the likely relevance of their testimony, we also see nothing in the record supporting
the implied premise that deposing any of them would result unreasonably in their
annoyance, embarrassment, oppression, or undue burden or expense. The Twins cite no
evidence and offer no compelling argument leading us to suppose that deposing the three
officers would have resulted in any of these improper effects. And for his part, Norsetter
offered to allay even the theoretical concerns by limiting the depositions to one hour each.
The district court abused its discretion by generally prohibiting the depositions altogether.
We reverse the district court’s grant of the protective order barring the depositions of Bill
Pohlad, Jim Pohlad, and Dave St. Peter, and we remand for further discovery. On remand,
the district court must permit the depositions but may, in its discretion, impose limits that
balance any rule 26.03(a) concerns against Norsetter’s right to discover relevant evidence.
The district court erred by denying Norsetter’s request to compel discovery of all emails
between him, Falvey, and Levine.
Norsetter argues that the district court erred by denying his request to compel
discovery for additional emails between him, Falvey, and Levine. We review the district
court’s decision regarding discovery requests for an abuse of discretion. Connolly v.
Comm’r of Pub. Safety, 373 N.W.2d 352, 354 (Minn. App. 1985). Norsetter requested that
13
the Twins disclose “[a]ll emails between Norsetter [and] Falvey and between Norsetter and
Levine.” The Twins declined to produce all the emails but instead produced emails
resulting from a limited search applying the following search parameters: any variation of
Norsetter’s name (Howard or Howie or Norsetter) combined with a term related to
termination (eliminat* or terminat* or renew*). The special master rejected Norsetter’s
request to search for additional emails, finding that it would be “disproportionate.”
Notwithstanding the district court’s broad discretion in discovery disputes, see id.,
we reverse the district court’s decision allowing the Twins to limit their disclosure. A party
“may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case.” Minn. R. Civ. P. 26.02(b).
Falvey and Levine made the decision to terminate Norsetter, and they were at the center of
the Twins’ alleged change in international scouting philosophy that led to the elimination
of Norsetter’s position. Emails between either of them and Norsetter might be highly
relevant to the claims or defenses. The Twins do not explain why only emails that contain
“eliminate,” “terminate,” or “renew” would produce relevant evidence. It is not difficult to
imagine myriad other terms that might also lead to relevant evidence. And the Twins do
not argue that emails broadened to Norsetter’s request would be cumulative or that the
information could be obtained from other sources. See Minn. R. Civ. P. 26.02(b)(3)(i)
(allowing the district court to limit discovery that is “unreasonably cumulative or
duplicative”).
We conclude that t he district court abused its discretion by allowing the Twins to
limit discovery of emails in the manner that occurred here. We therefore reverse and
14
remand for the district court to compel discovery of all emails between Norsetter and
Falvey, and between Norsetter and Levine.
The district court erred by denying Norsetter’s request to compel production of the eight
domestic scouts’ resumes.
Norsetter argues finally that the district court improperly denied his request to
compel the Twins to produce the resumes of the eight domestic scouts who were hired in
the fall of 2017. Norsetter requested the resumes of scouts hired since the beginning of
2016 that the Twins believed were more qualified than he was. The special master denied
the request because the Twins had not hired an international scout since Norsetter was
terminated in September 2017, implying that the information so ught was not relevant
because the scouts hired in 2017 were domestic scouts. On appeal, Norsetter contends that
the district court should have compelled the Twins to produce the resumes of the eight
domestic scouts hired in 2017.
The scouts’ resumes directly bear on Norsetter’s claims. To make a prima facie case
of age discrimination—and therefore survive summary judgment—Norsetter had to show,
among other things, that he was d enied employment opportunities and that those
opportunities remained open or were given to other people with his qualifications. See
Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 323– 24 (Minn. 1995). Norsetter
presented evidence that the Twins knew he was willing to relocate to the United States,
that he sought any open position with the organization, and that he was willing to take a
pay cut to continue. The Twins therefore knew that he was a candidate for any of the open
scouting positions. Norsetter attempted to meet his burden regarding relative qualifications
15
and age by showing that he was qualified for open scouting positions and that the Twins
did not consider him for those spots, instead hiring others who were considerably younger
than he was. The resumes of those hires would obviously bear on the issue. The Twins
implicitly ad mit the relevance of this evidence. They do so by arguing on appeal that
Norsetter’s failure to present evidence that the Twins filled the domestic scouting positions
with younger and less qualified scouts requires us to hold that he cannot survive summary
judgment. We reverse the district court’s decision and instruct that, on remand, the district
court must compel the Twins to produce the resumes of the domestic scouts hired after
Norsetter indicated his desire to continue his employment with the Twins.
Conclusion
We reverse in part the district court’s discovery determinations, and we remand for
further discovery. We clarify that our remand is narrow, limited to instructing the district
court to reopen discovery only on thos e matters leading to our reversal. Because being
improperly denied discovery may have prevented Norsetter from obtaining evidence on
issues bearing on the district court’s summary -judgment analysis, we reverse summary
judgment as premature without addressing the merits. After the parties conduct additional
discovery on remand, either party may decide anew whether to seek summary judgment.
Affirmed in part, reversed in part, and remanded.