RULE 30. DEPOSITIONS UPON ORAL EXAMINATION

Obsolete Date: 3/1/2011

(a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. 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 30 days after service of the summons and complaint upon any defendant or service made under Rule 4(e), but leave is not required

(1) if a defendant has served a notice of taking depositions or otherwise sought discovery, or

(2) if special notice is given as provided in subdivision (b)(2).

The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

(b) Notice of Examination--General Requirements--Special Notice--Non-stenographic Recording--Production of Documents and Things--Deposition of Organization--Deposition by Telephone.

(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice must state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. 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 in the notice.

(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice

(A) states that the person to be examined is about to go out of this State and will be unavailable for examination unless the deposition is taken before expiration of the 30-day period, and

(B) sets forth facts to support the statement.

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 11apply to the certification.

If a party shows that when the party was served with notice under this 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 depositions 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 Cross-Examination--Record of Examination--Oath--Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the North Dakota Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and personally, or by someone acting under the officer's direction and in the officer's presence, shall 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). If 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 parties.

All objections made 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, must be noted by the officer upon the deposition. Evidence objected to must be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which 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. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

(e) Submission to Witness--Changes--Signing. When the 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. Any changes in form or substance which the witness desires to make must be entered upon the deposition by the officer with a statement of 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.

(f) Certification; Copies.

(1) The officer shall certify on the deposition the witness was duly sworn by the officer and the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court, the officer shall securely seal the original transcript of the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly deliver or send the transcript 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.

Documents and things produced for inspection during the examination of the witness, upon the request of a party, must be marked for identification and annexed to the deposition, and may be inspected and copied by any party, but if the person producing the materials desires to retain them the person may

(A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or

(B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the person noticing the deposition, pending final disposition of the case.

(2) Upon payment of reasonable charges therefor, the office shall furnish a copy of the deposition to any party or to the deponent.

(g) Failure to Attend or to Serve 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.