RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

Effective Date: 3/1/1990

Obsolete Date: 3/1/2011

(a) Within the United States. Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions must be taken before an officer authorized to administer oaths by the laws of this state or of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. Depositions may also be taken before a person commissioned by the court or under a letter of request under subdivisions (b) and (c). The term officer as used in Rules 30, 31, and 32 includes a person appointed by the court or designated by the parties under Rule 29.

(b) In Foreign Countries. Depositions may be taken in a foreign country (1) under a treaty or convention, or (2) under a letter of request (whether or not captioned a letter rogatory), or (3) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States, or (4) 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 testimony.

(c) Commission or Letter of Request. A commission or a letter of request must be issued on application and notice, and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases. A 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 a treaty or convention, it must be captioned in the form prescribed by that treaty of convention. Evidence obtained in 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 any similar departure from the requirements for depositions taken under these rules.

(d) Disqualification for Interest. No deposition may be taken before a person who is a relative, employee, or attorney or counsel of any of the parties, or who is a relative or employee of that 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 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