RULE 30. DEPOSITIONS
UPON BY ORAL EXAMINATION
depositions a Deposition
May Be Taken.
(1) Without Leave. After commencement of the action,
any a party may take the
testimony of , by oral questions, depose any person, including a party,
by deposition upon
oral examination except as provided in Rule 30 (a)(2). A non-party
may be compelled by subpoena under Rule 45.
(2) With Leave.
(A) By Plaintiff. The plaintiff must obtain leave of court,
granted with or without notice,
must be obtained only if the plaintiff seeks to take a deposition prior to
the expiration of
thirty less than 30 days after service of the summons and complaint
upon any on a
defendant or service made under Rule 4(e) , but leave . Leave is
not required if: (1) if (i) a defendant has served a
deposition notice of taking depositions or otherwise
sought discovery , ; or (2) if (ii) special notice is given
as provided in subdivision under Rule
30(b)( 2 7). The attendance of witnesses may be compelled by
subpoena as provided in Rule 45.
(B) Of Prisoner.
The A party
must obtain leave of court to take the deposition of a
person confined in prison may be taken only by leave of court on such terms as the
prescribes. The court may specify terms for the deposition.
(3) Court's Discretion. The court for cause shown may enlarge or shorten the time for taking the deposition. The court may regulate at its discretion the time and order of taking depositions as will best serve the convenience of the parties and witnesses and the interests of justice.
(b) Notice of
recording-Production of documents and things-Deposition of organization-Deposition by
telephone the Deposition; Other Formal Requirements.
(1) Notice in General. A party
desiring to take
the deposition of any who wants to
depose a person upon oral examination shall by oral questions
must give reasonable
written notice in writing to every other party to the
action. The notice must state the time
and place for taking of the deposition and, if known,
the deponent's name and address of
each person to be examined, if known, and, if . If the name is
not known, unknown, the
notice must provide a general description sufficient to identify the person or the particular
class or group to which the person belongs.
(2) Producing Documents. If a subpoena duces tecum is to
be served on
the person to be
examined, the description of the material to be produced as set forth in the subpoena must
be attached to or included a non-party deponent, the materials designated for
as set out in the subpoena, must be listed in the notice or in an attachment.
The notice to a
party deponent may be accompanied by a request complying with Rule 34 to produce
documents and tangible things at the deposition.
(3) Method of Recording.
(A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.
(B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.
(4) By Remote Means. The parties may stipulate - or the court may on motion order - that a deposition be taken by telephone or other remote means.
(5) Officer's Duties.
(A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer may be present where the parties stipulate or the court orders. The officer must begin the deposition with an on-the-record statement that includes:
(i) the officer's name and business address;
(ii) the date, time, and place of the deposition;
(iii) the deponent's name;
(iv) the officer's administration of the oath or affirmation to the deponent; and
(v) the identity of all persons present.
(B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques.
(C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.
(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
(2) (7) Special Notice.
Leave A plaintiff seeking to depose a person is not required to
obtain leave of court is not required for the taking of a deposition by
plaintiff under Rule
30(a)(2)(A) if the deposition notice:
(A) states that the
person to be examined
deponent is about to go out of this leave the
state and will be unavailable for examination unless the a
deposition unless it is taken
before expiration of the thirty-day 30-day period ,
(B) sets forth facts to support the statement
The is signed by the
plaintiff's attorney shall sign the notice. The attorney's
signature constitutes a certification that to the best of the attorney's knowledge,
information, and belief the statement and supporting facts are true. The sanctions
provided by Rule 11 apply to the certification.
If a party shows that, when the party was served with a
subdivision (b)(2) the party was unable through the exercise of diligence to obtain
counsel to represent the party at the taking of the deposition, the
deposition may not be
used against the party. (3) The court for cause shown may enlarge or shorten the
time for taking the deposition.
The court may regulate at its discretion the time and order of taking depositions as will
best serve the convenience of the parties and witnesses and the interests of
justice. (4) The court upon motion may order that the testimony at
a deposition be recorded by
other than stenographic or audio-visual means, in which event the order must designate
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. If the
order is made, a party may nevertheless arrange to have a stenographic transcription made
at the party's own expense. Any objections under subdivision (c), any changes made by
the witness, the witness' signature identifying the depositions as the witness' 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) must be set
forth in 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 applies to the
request. (6) In the party's notice and in a subpoena, a party may
name as the deponent a public or
private corporation or a partnership or association or governmental agency and describe
with reasonable particularity the matters on which examination is requested. In that event,
the organization so named must designate one or more officers, directors, or managing
agents, or other persons who consent to testify on its behalf, and may set forth, for each
person designated, the matters on which the person will testify. A subpoena must advise a
nonparty organization of its duty to make such a designation. A person so designated
shall testify as to matters known or reasonably available to the organization. This
subdivision does not preclude taking a deposition by any other procedure authorized in
these rules. (7) The parties may stipulate in writing or the court upon
motion may order that a
deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1),
37(b)(1) and 45(d), a deposition taken by telephone is taken in the district and at the place
where the deponent is to answer propounded questions.
(c) Examination and
-; Record of the
Examination -; Oath-Objections;
(1) Examination and Cross-Examination.
Examination The examination and cross-examination of
witnesses may a deponent proceed as permitted at
the they would at trial
under the North Dakota Rules of Evidence. The After putting the
deponent under oath or
affirmation, the officer before whom the deposition is to be taken shall put the
oath and personally, or by someone acting under the officer's direction and in the officer's
presence, shall must record the testimony of the witness. The
testimony must be taken
stenographically or recorded by audio-visual means or any other means ordered in
accordance with subdivision (b)(4) by the method designated under Rule
requested by one of the parties, the testimony must be transcribed. The court may order
the cost of transcription paid by one or some of, or apportioned among, the
All objections made
An objection 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 objections to the
proceedings, - whether to evidence, to a party's conduct, to the officer's
the manner of taking the deposition, or to any other aspect of the deposition - must be
noted by the officer upon the deposition. Evidence objected to must be
on the record, but
the examination still proceeds; the testimony is taken subject to the
objection. An objection must be stated concisely in a nonargumentative and
nonsuggestive manner. A person may instruct a deponent not to answer only when
necessary to preserve a privilege, to enforce a limitation ordered by the court, or to
present a motion under Rule 30(d)(3).
(3) Participating Through Written Questions.
lieu Instead of participating in the oral
examination, parties a party may serve written questions in a
sealed envelope on the party
taking noticing the deposition, and the
party taking the deposition shall transmit who must
deliver them to the officer , who shall propound them to the
witness. The officer must ask
the deponent those questions and record the answers verbatim.
(d) Sanction; Motion to Terminate or Limit
(1) Sanction. The court may impose an appropriate sanction - including the reasonable expenses and attorney's fees incurred by any party - on a person who impedes, delays, or frustrates the fair examination of the deponent.
(2) Motion to Terminate or Limit.
(A) Grounds. At any time during
the taking of
the a deposition, on motion of the
deponent or a party or of the deponent and upon a showing that the
move to terminate it on the ground that it is being conducted in bad faith or in
manner as that unreasonably to annoy, embarrass, or
oppress annoys, embarrasses, or
oppresses the deponent or party ,. The motion may be
filed in the court in which where
the action is pending or the court in the district where the deposition is
being taken. If the
objecting deponent or party so demands, the deposition must be suspended for the time
necessary to obtain an order.
(B) Order. The court may order
conducting the examination to cease
forthwith from taking the deposition, that the deposition be terminated or
may limit the its
scope and manner of the taking of the deposition as provided in Rule
26(c). If the order
made terminates the examination, it terminated, the deposition may be
only upon the only by order of the court in which
where the action is pending. Upon
demand of the objecting party or deponent, the taking of the deposition must be
suspended for the time necessary to make a motion for an order.
(C) Award of Expenses.
of Rule 37 (a)(4) apply applies to the award of
expenses incurred in relation to the motion.
Submission to Review by
(1) Review; Statement of Changes.
testimony is fully transcribed, the
deposition must be submitted to the witness for examination and must be read to or by the
witness, unless the examination and reading are waived by the witness and by the
parties.On request by the deponent or a party made before the deposition is
the deponent must be allowed 30 days after being notified by the officer that the
transcript or recording is available in which:
(A) to review the transcript or recording; and
Any if there are
changes in form or substance which the witness desires to make
must be entered upon the deposition by the officer with, to sign a statement
of listing the
changes and the reasons given by the witness for making them.
The deposition must then
be signed by the witness, unless the parties by stipulation waive the signing or the witness
is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness
within 30 days after its submission to the witness, the officer shall sign it and state on the
record the fact of the waiver or of the illness or absence of the witness or the fact of the
refusal to sign together with the reason, if any, given therefor; and the deposition may
then be used as fully as though signed unless on a motion to suppress under Rule 32(d)(4)
the court holds the reasons given for the refusal to sign require rejection of the deposition
in whole or in part.
(2) Changes Indicated in the Officer's Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period. If the deposition is not signed by the deponent within 30 days after its submission to the deponent, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the deponent or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 32(d)(4) the court holds the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(f) Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing.
(1) Certification and Delivery. The officer
shall must certify on the deposition
that the witness deponent was duly sworn by
the officer and that the deposition is a true
record of accurately records the deponent's testimony
given by the witness. The
certificate must accompany the record of the deposition. Unless the court orders
otherwise ordered by the court, the officer shall
securely must seal the original transcript
of the deposition in an envelope indorsed with or
package bearing the title of the action
and marked "Deposition of (here insert name of witness) [deponent's
name]" and shall
must promptly deliver or send the
transcript it by registered or certified mail or a
traceable third-party commercial delivery service to the party noticing the deposition,
who must be identified on the record or attorney who arranged for the transcript
recording. The party or attorney must store it under conditions that will protect it
loss, destruction, tampering, or deterioration.
(2) Documents and Tangible Things.
(A) Originals and Copies. Documents and tangible
things produced for inspection
the examination of the witness, upon the a deposition must, on
a party's request of
a party, must be marked for identification and
annexed attached to the deposition , and
may be inspected and copied by any. Any party may inspect and copy
them , but if. If the
person producing the materials desires to retain them who produced
them wants to keep
the originals, the person may:
A i) offer copies to be
marked for identification and annexed, attached to the
deposition, and to serve thereafter then used as
originals if the person affords to - after
giving all parties a fair opportunity to verify the copies by
comparison comparing them
with the originals ,; or
B ii) offer the originals
to be marked for identification, after giving to each party an
give all parties a fair opportunity to inspect and copy them,
the originals - in which event
the materials may then be used in the same manner as if annexed
originals may be used as
if attached to the deposition.
(B) Order Regarding the Originals. Any party may move for
an order that the
annexed to and returned with the deposition to the person noticing originals be
to the deposition , pending final disposition of the
2 3) Upon payment of
reasonable charges therefor, the officer shall furnish a copy of
the deposition to any party or to the deponent. Unless otherwise stipulated or
the court, the officer must retain the stenographic notes of a deposition taken
stenographically or a copy of the recording of a deposition taken by another method.
When paid reasonable charges, the officer must furnish a copy of the transcript or
recording to any party or the deponent.
(g) Failure to Attend a Deposition or
to Serve a Subpoena -;
Expenses. (1) If a party giving 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 may order the party giving the notice to pay to the other party the reasonable
expenses incurred by that party and that party's attorney in attending, including
reasonable attorney's fees. (2) If the party giving the notice of the taking of a
deposition of a witness fails to serve a
subpoena upon the witness and because of the failure the witness does not attend and
another party attends in person or by attorney because that party expects the deposition of
that witness to be taken, the court may order the party giving the notice to pay to the other
party the reasonable expenses incurred by that party and that party's attorney in attending,
including reasonable attorney's fees.
A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney's fees, if the noticing party failed to:
(1) attend and proceed with the deposition; or
(2) serve a subpoena on a nonparty deponent, who consequently did not attend.
Rule 30 was amended, effective January 1, 1980; July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1999; March 1, 2000; March 1, 2011.
Rule 30 was amended, effective March 1, 1999, to allow an original deposition transcript to be shipped via a commercial delivery service offering a traceable means of shipping similar to registered or certified mail.
Rule 30 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.
Rule 30 was amended, effective March 1, 2011, to incorporate the procedures from former Rule 30.1 for taking audio-visual depositions.
Subdivision (d) was amended, effective March 1, 2011, to provide for sanctions against a party who impedes, delays or frustrates a deposition.
Subdivision (e) was amended, effective March 1, 2011, to eliminate the requirement that the deponent review and sign the deposition. Instead, a deponent or party may review the deposition and submit a statement of changes on request.
Sources: Joint Procedure Committee
Minutes of January 29-30, 2009, pages 20-26;
September 24-25, 1998, page 16; January 29-30, 1998, page 19; April 27-28, 1995, pages
5-7; April 20, 1989, page 2; December 3, 1987, page 11; November 30, 1984, pages 27-29;
October 18, 1984, page 11; December 11-12, 1980, pages 1, 5-6; October 30-31,
1980, pages 11-16; November 29-30, 1979, pages 5-6; April 26-27, 1979, pages 9-14;
Rule Fed.R.Civ.P. 30 ,
Affected: Superseded: N.D.R.C. 1943
§§ 31-0507, 31-0509, 31-0511, 31-0512, 31-0513,
31-0514, 31-0515, 31-0516, 31-0517, 31-0520, 31-0521, 31-0707, 31-0708, 31-0710, 31-0711,
Rules N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction - Process
Service), N.D.R.Civ.P. 26 (General Provisions Governing Discovery),
(Depositions Before Action or Pending Appeal), N.D.R.Civ.P. 28 (Persons Before
Depositions May be Taken), N.D.R.Civ.P. 29 (Stipulations Regarding Discovery
Procedure), N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written Questions),
N.D.R.Civ.P. 32 (Use of Depositions in Court Proceedings), N.D.R.Civ.P. 34
of Documents and Things and Entry Upon Land for Inspection and Other Purposes),
N.D.R.Civ.P. 37 (Failure to Make Discovery - Sanctions), and
(Subpoena), N.D.R.Civ.P.; Rule N.D.R.Ev. 611 (Mode and
Order of Interrogation and
Presentation) , N.D.R.Ev.