(a) Use of Using Depositions.
(1) In General.
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
At a hearing or trial, all or part of a deposition may be used against a party on these conditions:
(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Rules of Evidence if the deponent were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
(1) (2) Impeachment and Other Uses.
Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the North Dakota Rules of Evidence.
A party may use a deposition to contradict or impeach the testimony given by the deponent as a witness or for any other purpose allowed by the Rules of Evidence.
(2) (3) Deposition of Party, Agent, or Designee.
The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, superintendent or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.
An opposing party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).
(3) (4) Unavailable Witness.
The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds that:
(A) that the witness is dead; or
(B) that the witness is at a greater distance more than 100 miles from the place of hearing or trial or hearing, or is out of outside the state, unless it appears that the absence of the witness witness’s absence was procured by the party offering the deposition; or
(C) that the witness is unable to cannot attend or testify because of age, illness, infirmity, or imprisonment; or
(D) that the party offering the deposition has been unable to could not procure the witness’s attendance of the witness by subpoena; or
(E) upon application on motion and notice, that such exceptional circumstances exist as to make it desirable, – in the interest of justice and with due regard to the importance of presenting the live testimony of witnesses orally in open court, – to allow permit the deposition to be used.
(5) Limitations on Use.
A deposition taken without leave of court upon notice under Rule 30(a)(2) may not be used against a party who demonstrates that, when served with the notice, it was unable through the exercise of diligence to obtain counsel to represent it at the taking of the deposition; nor may a deposition be used against a party who, having received less than 11 days notice of a deposition, has promptly upon receiving such notice filed a motion for a protective order under Rule 26(c)(2) requesting that the deposition not be held or be held at a different time or place and such motion is pending at the time the deposition is held.
(A) Deposition Taken on Short Notice. A deposition must not be used against a party who, having received less than 14 days notice of the deposition, promptly moved for a protective order under Rule 26 (c)(2) requesting that it not be taken or be taken at a different time or place – and this motion was still pending when the deposition was taken.
(B) Party Could Not Obtain an Attorney. A deposition taken without leave of court under the special notice provision of Rule 30(a)(2)(A)(ii) must not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent the party at the deposition.
(4) (6) Using Part of a Deposition.
If only a part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
If a party offers in evidence only part of a deposition, an opposing party may require the offeror to introduce other parts that in fairness may be considered with the part introduced, and any other party may itself introduce any other parts.
(7) Substituting a Party.
Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken;
Substituting a party under Rule 25 does not affect the right to use a deposition previously taken.
(8) Deposition in Earlier Action.
and, if an action has been brought in any court of this state or of any other state in the United States and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor. A deposition previously taken may also be used as permitted by the North Dakota Rules of Evidence.
A deposition lawfully taken and, if required, filed in any federal- or state- court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Rules of Evidence.
(b) Objections to admissibility Admissibility.
Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
Subject to Rules 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.
(c) Form of presentation Presentation.
Except as otherwise directed by the court, a party using deposition testimony under this rule may use it in stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the court and the other parties with a transcript of the portions being used. On request of any party in a case tried before a jury, deposition testimony offered other than for impeachment purposes must be presented in nonstenographic form, if available, unless the court for good cause orders otherwise.
Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may also provide the court with the testimony in nontranscript form. On any party’s request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise.
(d) Effect of errors and irregularities in depositions Waiver of Objections.
(1) As to To the Notice.
All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.
(2) As to disqualification of officer To the Officer’s Qualification.
An objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made:
(A) before the deposition begins; or
(B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
(3) As to taking of To the Taking of the Deposition.
(A) Objection to Competence, Relevance, or Materiality.
An objection to the competency of a witness or to the competency, relevancy, or materiality of testimony is not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
An objection to the deponent’s competence – or to the competence, relevance, or materiality of the testimony – is not waived by a failure to make the objection before or during the deposition, unless the ground for the objection might have been corrected at that time.
(B) Objection to an Error or Irregularity.
Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
An objection to an error or irregularity at an oral examination is waived if:
(i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition.
(C) Objection to a Written Question.
An objection to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized.
An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within seven days after being served with it.
(4) As to completion and return of To Completing and Returning the Deposition.
An error and irregularity in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 is waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after the defect is, or with due diligence might have been, ascertained.
An objection as to how the officer transcribed the testimony – or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition – is waived unless a motion to suppress is made promptly after the defect or irregularity becomes known or, with reasonable diligence, could have been known.
Rule 32 was amended, effective January 1, 1980; July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996;_____________________.
Subparagraph (a)(5)(A) was amended, effective ______________, to increase the time to limit the use of a deposition against a party from less than 11 days to less than 14 days.
Subparagraph (d)(3)(C) was amended, effective ______________, to increase the time for waiver of an objection to a written question from five to seven days.
Rule 32 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes of ______________; January 29-30, 2009, pages 27-28; April 27-28, 1995, pages 7-8; January 26-27, 1995, page 16; April 20, 1989, page 2; December 3, 1987, page 11; November 30, 1984, pages 31-32; October 19, 1984, page 20; December 11-12, 1980, pages 2-3; October 30-31, 1980, pages 16-19; November 29-30, 1979, pages 6-7; April 26-27, 1979, pages 15-17; Rule Fed.R.Civ.P, 32, FRCivP.
Cross Reference: Rules N.D.R.Civ.P. 25 (Substitution of Parties), N.D.R.Civ.P. 28 (Persons Before Whom Depositions May Be Taken), N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedures), N.D.R.Civ.P. 30 (Depositions Upon Oral Examination), and N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written Questions), N.D.R.Civ.P.; Rules N.D.R.Ev. 106 (Remainder of or Related Writings of Recorded Statements), N.D.R.Ev. 607 (Who May Impeach), N.D.R.Ev. 611 (Mode and Order of Interrogation and Presentation), N.D.R.Ev. 603 (Prior Statements of Witnesses), and N.D.R.Ev. 804 (Hearsay Exceptions: Declarant Unavailable), N.D.R.Ev.