RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

Effective Date: 3/1/2011

(a) Within the United States.

(1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before:
(A) an officer authorized to administer oaths either by North Dakota or federal law or by the law in the place of examination;
(B) a person appointed by the court where the action is pending to administer oaths and take testimony; 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. A deposition may be taken in a foreign country:

(1) under an applicable treaty or convention;
(2) under a letter of request, whether or not captioned a "letter rogatory"; or
(3) on notice, before a person authorized to administer oaths either by North Dakota or federal law or by the law in the place of examination; or
(4) before a person commissioned by the court to administer any necessary oath and take testimony.

(c) Letter of Request or Commission.

(1) In General. A letter of request, a commission, or both may be issued:
(A) on appropriate terms after an application and notice of it, and
(B) without a showing that taking the deposition in another manner is impracticable or inconvenient.
(2) Form of Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty of 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 obtained 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 these rules.

(d) Disqualification. A deposition must not be taken before a person who is any party's relative, employee, or attorney; who is related to or employed by any party's attorney; 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 derived 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.

CROSS REFERENCE: N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure) and N.D.R.Civ.P. 32 (Use of Depositions in Court Proceedings).

Effective Date Obsolete Date
03/01/2011 View
03/01/1990 03/01/2011 View