RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
(a) Within the United States.
(1) In General. Within the United States or
within a territory or insular possession
subject to the United States jurisdiction of the
United States, depositions a deposition
must be taken before;
(A) an officer authorized to administer oaths either
the laws of this state North
Dakota or of the United States federal law or
of the by the law in the place where the
examination is held, or ;
before a person appointed by the
court in which where the action is pending . A
person so appointed has power to administer oaths and take testimony .
also be taken before ; or
(C) a person commissioned by the court or under a letter of request under subdivisions (b) and (c).
(2) Definition of "Officer." The term "officer" as used in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29.
(b) In foreign countries.
(1) In General.
deposition may be taken in a foreign country: (1) (A) under
a an applicable treaty or convention , or
; (2) (B) under a letter of
request, (whether or not captioned a "letter
rogatory" ), or ; (3) (C) on notice, before a
person authorized to administer oaths either by North Dakota
or federal law or by the law in the place where the of
examination is held, either by the
law thereof or by the law of the United States, ; or (4) (D) before a person
commissioned by the court , and a person so commissioned has
the power by virtue of the commission to administer any necessary oath and take
Commission or letter Letter of
Request or Commission.
(1) In General. A
commission or a
letter of request, a commission, or both must may be
(A) on appropriate terms after an
application and notice , of it; and
on terms that are just and appropriate. It is
not requisite to the issuance of a
commission or a letter of request without a showing that
the taking of the deposition in
any other another matter is impracticable or
inconvenient ; and both a commission and a
letter of request may be issued in proper cases.
(2) Form of Request, Notice, or Commission.
notice or commission may designate
the person before whom the deposition is to be taken either by name or descriptive title.
A letter of request may be addressed "To the Appropriate Authority in [here name the
state or country]." When a letter of request or any other device is used
under according to
a treaty or convention, it must be captioned in the form prescribed by that treaty or
convention. A letter of request may be addressed "To the Appropriate Authority in [name
of state or country]." A deposition notice or a commission must designate by name or
descriptive title the person before whom the deposition is to be taken,
(3) Letter of Request - Admitting Evidence. Evidence
a foreign country
under a commission or in response to a letter of request need not be excluded merely
because it is not a verbatim transcript, because the testimony was not taken under oath, or
because of any similar departure from the requirements for depositions taken under
No A deposition may must
not be taken before a person
who is a any party's relative, employee, or attorney
or counsel of any of the parties, or ;
who is a relative or employee of that related to or employed by any
party's attorney or
counsel, ; or who is financially interested in the action.
Rule 28 was amended, effective March 1, 1990; March 1, 1996; March 1, 2011.
Rule 28 is
identical to Rule 28, FRCivP,
except for the addition to subdivision (a) of a
reference to persons authorized to administer oaths by the laws of this state and the second
to the last sentence which makes clear that depositions may be taken before a person
commissioned by the court or under a letter of request in the United States as well as in
foreign countries; and separation of subdivision (b) into two parts. After the division of
subdivision (b) into two parts, it is now clear that a commission or letter of request may be
issued for use in the United States and in foreign countries. The new subdivision (c) specifies
the procedure for issue of a commission or letter of request. A minor change was made to
indicate that the letter should be addressed to the appropriate authority in a state or country.
Also, the last sentence of subdivision (c) provides that only evidence obtained in a foreign
country under these procedures need not be excluded because of the listed
from Fed.R.Civ.P. 28.
Rule 28 was amended, effective March 1, 2011, 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.
Subdivision (b) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Subdivisions (b) and (c) were amended, effective March 1, 1996, to follow the 1993 federal amendment. A substantive change is not intended by the switch in terminology from "letter rogatory" to "letter of request."
Sources: Joint Procedure Committee Minutes of September 25, 2008, pages 22-23; January 26-27, 1995, page 12; April 20, 1989, page 2; December 3, 1987, page 11; October 30-31, 1980, pages 10-11; September 18-19, 1980, page 13; March 27-28, 1980, pages 4-5; January 17-18, 1980, page 3; November 29-30, 1979, page 5.
Affected: Superseded: N.D.R.C. 1943
§§ 31-0503, 31-0504, 31-0505, 31-0705, 31-0706.
Cross Reference: N.D.R.Civ.P.
Rules 29 (Stipulations Regarding Discovery Procedure) and
N.D.R.Civ.P. 32 (Use of Depositions in Court Proceedings) ,