RULE 30.1. UNIFORM AUDIO-VISUAL DEPOSITION RULE
(a) Authorization of audio-visual deposition.
(1) Any deposition upon oral examination may be recorded by audio-visual means without a stenographic record. Any party may make at his own expense a simultaneous stenographic or audio record of the deposition. Upon his request and at his own expense, any party is entitled to an audio or audio-visual recording.
(2) The audio-visual recording is an official record of the deposition. A transcript prepared in accordance with Rule 30(c) is also an official record of the deposition.
(3) On motion the court, for good cause, may order the party taking, or who took, a deposition by audio-visual recording to furnish, at his expense, a transcript of the deposition.
(b) Use. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.
(c) Notice. The notice for taking an audio-visual deposition and the subpoena for attendance at that deposition must state that the deposition will be recorded by audio-visual means.
(d) Procedure. The following procedure must be observed in recording an audio-visual deposition:
(1) Opening of deposition. The deposition must begin with an oral or written statement on camera which includes:
(A) the operator's name and business address;
(B) the name and business address of the operator's employer;
(C) the date, time, and place of the deposition;
(D) the caption of the case;
(E) the name of the witness;
(F) the party on whose behalf the deposition if being taken; and
(G) any stipulations by the parties.
(2) Counsel. Counsel shall identify themselves on camera.
(3) Oath. The oath must be administered to the witness on camera.
(4) Multiple units. If the length of a deposition requires the use of more than one recording unit, the end of each unit and the beginning of each succeeding unit must be announced on camera.
(5) Closing of deposition. At the conclusion of a deposition, a statement must be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulations made by counsel concerning the custody of the audio-visual recording and exhibits or other pertinent matters.
(6) Index. Depositions must be indexed by a time generator or other method specified by the supreme court.
(7) Objections. An objection must be made as in the case of stenographic depositions.
(8) Editing. If the court issues an editing order, the original audio-visual recording may not be altered.
(9) Delivery. Unless otherwise stipulated by the parties, the operator shall deliver, mail, or ship to the party noticing the audio-visual deposition the original audio-visual recording of a deposition, any copy edited pursuant to an order of the court, and any exhibits. If mailed or shipped, the deposition, and any exhibits, must be sent via registered or certified mail or a traceable third-party commercial delivery service.
(e) Costs. The reasonable expense of recording, editing, and using an audio-visual deposition may be taxed as costs.
Rule 30.1 was adopted, effective January 1, 1980; amended effective March 1, 1986; March 1, 1999.
Rule 30.1 is substantially the same as the Uniform Audio-Visual Deposition Rule as drafted by the National Conference of Commissioners on Uniform State Laws.
The taking of depositions by other than stenographic means has previously been allowed by Rule 30(b)(4) pursuant to court order. However, as stated in the official comment to the Uniform Rule:
"This Rule (1) does not require a court order for the taking of an audio-visual deposition; (2) sets out uniform standards for recording, preserving, filing, and using the depositions rather than leaving it to individual orders; and (3) specifically designates the audio-visual recording as an official record of the deposition.
"The provisions for audio-visual depositions contained in this Rule supplement, and are in addition to, the general provisions applicable to the taking and use of depositions."
Subdivision (a)(2), as indicated in the official comment.
"Provides that the audio-visual recording is an official record of the deposition. If a typewritten transcript is prepared *** (as prescribed by Rule 30(c)) it too is an official record of the deposition. Both can be used by the parties for briefing, argument, and appeal. In the event of conflict between the two records, the court would have to resolve the disparity, just as it might now, if the witness contended the stenographic transcription was inaccurate. Because the audio-visual recording is an exact recording, it would normally be relied upon to resolve any disparity; but, in rare circumstances, perhaps the stenographic transcription might be adopted by the court as a better recording."
Subdivision (a)(3) allows the court to order the proponent of the deposition to bear the expense of preparing a typewritten transcript when "good cause" is shown. The transcript could either be prepared simultaneously with the audio-visual recording or at a later time from the audio portion of the audio-visual recording.
The use of an audio-visual deposition, as stated in subdivision (b), is the same as for a stenographic deposition, which is found in Rule 32. The official comment suggests other uses and some advantages of this type of deposition:
"This Rule does not expand the use of depositions; however, as is true with other depositions, the parties may wish to stipulate the use of an audio-visual deposition in a situation where its use is not authorized hereby. In such an event, an audio-visual recording is superior to the reading of a stenographic deposition, because it provides an exact visual and audio recording of the testimony. It has many of the attributes of live testimony and will be advantageous for taking of medical and other expert testimony where both delay and cost may be minimized substantially by an audio-visual recording."
Subdivision (d)(9) was amended, effective March 1, 1986, to reflect the 1986 amendment to N.D.R.Civ.P. 5(d)(1), which limited the situations when discovery materials may be filed. Subdivision (d)(9) was amended, effective March 1, 1999, to allow an audio-visual deposition to be sent via a commercial delivery service offering a traceable means of shipping similar to registered or certified mail.
The official comment to subdivision (d) expanded on several areas:
"In paragraph (6) indexing is by 'time generator or other method ***' in anticipation that yet better techniques for indexing may be developed.
"Paragraph (7) provides that objections will be handled in the same manner as for stenographic depositions. However, the Special Committee anticipates that, for ease of editing of objections and testimony ordered to be struck, the parties may frequently wish to stipulate that objections may be made immediately after the answer.
"The Rule does not set out alternative methods of editing because improving technology may develop better techniques than those presently employed. Various techniques are currently used for editing, including (1) preparation of an edited copy omitting testimony that has been struck and (2) suppressing the audio, or audio-visual, display of any portion of the testimony struck. The integrity of the recording, regardless of the editing technique employed, requires that the original recording remain unaltered and thus paragraph (8) so provides.
"No provisions are included for retention and storage of the recording by the clerk of court or its return at the conclusion of the proceedings. Local rules can best make provision for those matters. If the clerk of court has display equipment that cannot erase, free accessibility under his supervision would be appropriate. If not, controls should be developed by local rule or court order to preserve the integrity of the recording from inadvertent, or intentional, erasing or destruction of the recording. The videotape itself is reusable and normally should be returned to the party supplying it when the case is concluded."
Sources: Joint Procedure Committee Minutes of January 29-30, 1998, page 19; November 29-30, 1984, pages 29-31; October 18, 1984, page 17; April 26-27, 1979, pages 1-4; January 25-26, 1979, pages 7-10; December 7-8, 1978, page 2; Uniform Audio-Visual Deposition Rule.
Cross Reference: Rules 27 (Depositions Before Action or Pending Appeal), 28 (Persons
Before Whom Depositions May Be Taken), 29 (Stipulations Regarding Discovery
Procedure), 30 (Depositions Upon Oral Examination), 31 (Depositions of Witnesses Upon
Written Questions), and 32 (Use of Depositions in Court Proceedings), N.D.R.Civ.P.