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NRCP Rule 30
RULE 30. DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. Subject to
the limitations of Rule 26(a), any party may take the testimony of any person,
including a party, by deposition upon oral examination. Leave of court, granted
with or without notice, must be obtained only if either party seeks to take a
deposition prior to the expiration of 30 days after service of the summons and
complaint upon any defendant or service made under Rule 4(e), except that leave
is not required (1) if a defendant has served a notice of taking deposition or
otherwise sought discovery, or (2) if special notice is given as provided in
subdivision (b)(2) of this rule. The attendance of witnesses may be compelled
by subpoena as provided in Rule 45. The deposition of a person confined in
prison may be taken only by leave of court on such terms as the court prescribes.
(b) Notice of Examination: General Requirements;
Special Notice; Non-Stenographic Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone.
(1) A party desiring to take the deposition of any
person upon oral examination shall give reasonable notice, not less than 15
days, in writing to every other party to the action. The notice shall state the
time 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 him or the particular class or group to
which he belongs. If a subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced as set forth in the
subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a
deposition by any party if the notice (A) states that the person to be examined
is about to go out of the State, and will be unavailable for examination unless
his deposition is taken before expiration of the 30-day period, and (B) sets
forth facts to support the statement. The party’s attorney shall sign the
notice, and his signature constitutes a certification by him that to the best
of his knowledge, information, and belief the statement and supporting facts
are true. The sanctions provided by Rule 11 are applicable to the certification.
If a party shows that when he was served with notice
under this subdivision (b)(2) he was unable through the exercise of diligence
to obtain counsel to represent him at the taking of the deposition, the
deposition may not be used against him.
(3) The court may for cause shown enlarge or shorten
the time for taking the deposition.
(4) The parties may stipulate in writing or the court
may upon motion order that the testimony at a deposition be recorded by other
than stenographic means. The stipulation or order shall designate the person
before whom the deposition shall be taken, the manner of recording, preserving,
and filing the deposition, and may include other provisions to assure that the
recorded testimony will be accurate and trustworthy. A party may arrange to
have a stenographic transcription made at his or her own expense. Any
objections under subdivision (c), any changes made by the witness, his or her
signature identifying the deposition as his or her own, or the statement of the
officer that is required if the witness does not sign as provided in
subdivision (e), and the certification of the officer required by subdivision
(f), shall be set forth in a writing to accompany a deposition recorded by
non-stenographic means.
(5) The notice to a party deponent may be accompanied
by a request made in compliance with Rule 34 for the production of documents
and tangible things at the taking of the deposition. The procedure of Rule 34
shall apply to the request.
(6) A party may in his notice name as the deponent a
public or private corporation or a partnership or association or governmental
agency and designate with reasonable particularity the matters on which
examination is requested. The organization so named shall produce one or more
officers, directors, or managing agents, or other persons who have knowledge of
the matters on which the examination was requested, and who consent to testify
on its behalf. The persons so produced shall testify as to matters known or
reasonably available to the organization. This subdivision (b)(6) does not
preclude taking a deposition by any other procedure authorized in these rules.
(7) The parties may stipulate, or the court may upon
noticed motion order that a deposition be taken by telephone. For the purpose
of these rules, a deposition taken by telephone is taken at the place where the
deponent is to answer the questions propounded. Unless otherwise stipulated by
the parties: (A) the party taking the deposition shall arrange for the presence
of the officer before whom the deposition will take place; (B) the officer
shall be physically present at the place of the deposition; and (C) the party
taking the deposition shall make the necessary telephone connections at the
time scheduled for the deposition. Nothing in this paragraph shall prevent a
party from being physically present at the place of the deposition, at the
party’s own expense.
(c) Examination and Cross-Examination; Record of
Examination; Oath; Objections. Examination and cross-examination of
witnesses may proceed as permitted at the trial under the provisions of Rule
43(b). The officer before whom the deposition is to be taken shall put the
witness on oath and shall personally, or by someone acting under his direction
and in his presence, record the testimony of the witness. The testimony shall
be taken stenographically or recorded by any other means ordered in accordance
with subdivision (b)(4) of this rule. If requested by one of the parties, the
testimony shall be transcribed. All objections made at the time of the
examination to the qualifications of the officer taking the deposition, or to
the manner of taking it, or to the evidence presented, or to the conduct of any
party, and any other objection to the proceedings, shall be noted by the
officer upon the deposition. Evidence objected to shall be taken subject to the
objections. A witness may not be instructed to refuse to answer a question
except on the ground of privilege. In lieu of participating in the oral
examination, parties may serve written questions in a sealed envelope on the
party taking the deposition and he shall transmit them to the officer, who
shall propound them to the witness and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. At
any time during the taking of the deposition, on motion of a party or of the
deponent and upon a showing that the examination is being conducted in bad
faith or in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the court in which the action is pending may order the
officer conducting the examination to cease forthwith from taking the
deposition, or may limit the scope and manner of the taking of the deposition
as provided in Rule 26(c). If the order made terminates the examination, it
shall be resumed thereafter only upon the order of the court in which the action
is pending. Upon demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make a motion for an
order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred
in relation to the motion.
(e) Submission to Witness; Changes; Signing. When
the testimony is fully transcribed the officer shall send written notice to the
witness and to all parties who were in attendance at the deposition that the
original transcript of the testimony is available for reading and signing. For
30 days following this notice, the witness, either in person or by a signed
letter to the officer, may change an answer to any question, and may either
approve the transcript of the deposition by signing it, or refuse to approve
the transcript by not signing it. The officer shall indicate on the original
any action taken by the witness, or the failure of the witness to contact the
officer. If the deposition is not signed by the witness it may be used as fully
as though signed unless on a motion to suppress under Rule 32(d)(4) the court
holds that the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
(f) Certification by Officer; Exhibits; Copies;
Notice of Filing.
(1) The officer shall certify on the deposition that
the witness was duly sworn by him and that the deposition is a true record of
the testimony given by the witness. He shall then securely seal the deposition
in an envelope indorsed with the title of the action and marked “Deposition of
[here insert name of witness]” and shall send it to the party who took the
deposition. He shall also notify all parties in attendance at the deposition of
any changes made by the witness.
Documents and things produced for inspection during the
examination of the witness, shall, upon the request of a party, be marked for
identification and annexed to and returned with the deposition, and may be
inspected and copied by any party, except that (A) the person producing the
materials may substitute copies to be marked for identification, if he affords
to all parties fair opportunity to verify the copies by comparison with the
originals, and (B) if the person producing the materials requests their return,
the officer shall mark them, give each party an opportunity to inspect and copy
them, and return them to the person producing them, and the materials may then
be used in the same manner as if annexed to and returned with the deposition.
Any party may move for an order that the original be annexed to and returned
with the deposition to the court, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition to any party or to the deponent.
(g) Failure to Attend or to Serve Subpoena;
Expenses.
(1) If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another party attends in
person or by attorney pursuant to the notice, the court shall order the party
giving the notice to pay to such other party the reasonable expenses incurred
by him and his attorney in attending, including reasonable attorney’s fees,
unless good cause be shown.
(2) If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him and the witness
because of such failure does not attend, and if another party attends in person
or by attorney because he expects the deposition of that witness to be taken,
the court shall order the party giving the notice to pay such other party the
reasonable expenses incurred by him and his attorney in attending, including
reasonable attorney’s fees, unless good cause be shown.
(h) Expert Witness Fees.
(1) A party desiring to depose any expert who is to be
asked to express an opinion, shall pay the reasonable and customary hourly or
daily fee for the actual time consumed in the examination of that expert by the
party noticing the deposition. If any other attending party desires to question
the witness, that party shall be responsible for the expert’s fee for the
actual time consumed in that party’s examination. If requested by the expert
before the date of the deposition, the party taking the deposition of an expert
shall tender the expert’s fee based on the anticipated length of that party’s
examination of the witness. If the deposition of the expert takes longer than
anticipated, any party responsible for any additional fee shall pay the balance
of that expert’s fee within 30 days of receipt of a statement from the expert.
Any party identifying an expert whom that party expects to call at trial is
responsible for any fee charged by the expert for preparing for the deposition
and for traveling to the place of the deposition, as well as for any travel
expenses of the expert.
(2) If a party desiring to take the deposition of an
expert witness pursuant to this subdivision deems that the hourly or daily fee
of that expert for providing deposition testimony is unreasonable, that party
may move for an order setting the compensation of that expert. This motion
shall be accompanied by an affidavit stating facts showing a reasonable and
good faith attempt at an informal resolution of any issue presented by the
motion. Notice of this motion shall be given to the expert. The court shall set
the fee of the expert for providing deposition testimony if it determines that
the fee demanded by that expert is unreasonable. The court may impose a
sanction pursuant to Rule 37 against any party who does not prevail, and in
favor of any party who does prevail, on a motion to set expert witness fee,
providing the prevailing party has engaged in a reasonable and good faith
attempt at an informal resolution of any issues presented by the motion.
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