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RULE 30. DEPOSITIONS UPON ORAL EXAMINATION

July 25, 2011

RULE 30.01: 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 4.05, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in Rule 30.02(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. [As amended July 1, 1979.]

RULE 30.02: 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 notice in writing to every other party to the action. The notice shall be served on the other parties at least five days beforehand when the deposition is to be taken in the county in which suit is pending. When the deposition is to be taken out of the county, at least seven days’ notice shall be given. The notice shall 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 designation of the materials to be produced as set forth in the subpoena shall 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 the state of Tennessee and will be unavailable for examination unless the person’s 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, and this 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 are applicable to the certification.

If a party shows that when served with notice under this subdivision (2) the party was unable through the exercise of diligence to obtain counsel to represent him or her at the taking of the deposition, the deposition may not be used against the party.

(3) The court may for cause shown enlarge or shorten the time for taking the deposition.

(4) (A) The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the stipulation or order shall 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. A party may arrange to have a stenographic transcription made at the party’s own expense. Any objections under Rule 30.03; any changes made by the witness and his or her signature identifying the deposition as the witness’s own, or the statement of the officer that is required if the witness does not sign, as provided in Rule 30.05; and the certification of the officer required by Rule 30.06 shall be set forth in writing to accompany a deposition recorded by other than stenographic means.

(B) Notwithstanding paragraph (A), any deposition may be recorded by audio-visual means without a stenographic record. Any party may make at the party’s own expense a simultaneous stenographic or audio record of the deposition. Upon a party’s request and own expense, any party is entitled to an audio or audio-visual copy of the audio-visual recording. The audio-visual recording is an official record of the deposition. A transcript prepared by a court reporter is also an official record of the deposition. On motion the court, for good cause, may order the party taking, or who took a deposition by audio-visual recording to furnish, at the party’s expense, a transcript of the deposition. Any lawyer or lawyer’s agent can operate the equipment.

An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.

The notice for taking an audio-visual deposition and the subpoena for attendance at that deposition must state that the deposition will be recorded by audio-visual means and whether a simultaneous record will be made.

The following procedure must be observed in recording an audio-visual deposition:

(i) The deposition must begin with an oral or written statement on camera which includes:

(a) The operator’s name and business address;

(b) The name and business address of the operator’s employer;

(c) The date, time and place of the deposition;

(d) The caption of the case;

(e) The name of the witness;

(f) The party on whose behalf the deposition is being taken; and

(g) Any stipulations by the parties.

(ii) Counsel shall identify themselves on camera.

(iii) The oath must be administered to the witness on camera.

(iv) If the length of a deposition requires the use or more than one recording unit, the end of each unit and the beginning of each succeeding unit must be announced on camera.

(v) At the conclusion of a deposition, a statement must be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulations made by counsel concerning the custody of the audio-visual recording and exhibits or other pertinent matters.

(vi) Depositions must be indexed by a visible time recording device that displays hours, minutes and seconds.

(vii) An objection must be made as in the case of stenographic depositions.

(viii) If the court issues an editing order, the original audio-visual recording must not be altered.

(ix) Unless otherwise stipulated by the parties, the original audio-visual recording of a deposition, any copy edited pursuant to an order of the court, and exhibits must be filed forthwith with the clerk of the court.

(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 shall apply to the request.

(6) A party may in the party’s notice and in a subpoena 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 shall 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 shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (6) does not preclude taking a deposition by any other procedure authorized in these rules.

(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. Nothing herein shall preclude any party from being represented in person or by counsel at the site of the deponent. [As amended July 1, 1979, and by orders entered January 31, 1984, effective August 20, 1984, and January 23, 1986, effective August 1, 1986; and by order entered January 18, 1996, effective July 1, 1996.]

RULE 30.03: EXAMINATION AND CROSS-EXAMINATION; RECORD OF EXAMINATION; OATH; OBJECTIONS.

Examination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer’s direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with Rule 30.02(4). If requested by one of the parties, the testimony shall be transcribed.

All objections made at 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 objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. A deponent may be instructed not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate or limit examination. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim. [As amended July 1, 1979, and by order entered January 25, 1991, effective July 1, 1991.]

RULE 30.04: 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 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 26.03. If the order made terminates the examination, it shall 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 shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37.01(4) apply to the award of expenses incurred in relation to the motion. [As amended July 1, 1979.]

RULE 30.05: SUBMISSION TO WITNESS; CHANGES; SIGNING.

When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall 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 of its submission, 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 32.04(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. [As amended July 1, 1979.]

RULE 30.06: DISPOSITION.

Once Rule 30.05 is satisfied, the officer shall deliver the deposition plus any exhibited documents and things to the party who requested taking of the deposition. Upon payment of reasonable charges, the officer shall furnish copies to any party or to the deponent. If the deposition contains material relevant to a hearing, the party who requested the taking of the deposition shall have it present in the courtroom along with exhibited documents and things on the day of the hearing unless otherwise stipulated. If any portion is introduced, T.R.Evid. 1003 shall govern.

If a party files a deposition for any purpose, the party filing the deposition shall give notice thereof to all other parties at the time of filing. [As amended July 1, 1979, and by order entered January 31, 1984, effective August 20, 1984, and by order entered January 18, 1996, effective July 1, 1996, and by order filed December 10, 2003, effective July 1, 2004.]

RULE 30.07: FAILURE TO ATTEND OR TO SERVE SUBPOENA; EXPENSES.

(1) If the party giving the 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 such other party the reasonable expenses incurred by such other party and his or her 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 the witness because of such failure does not attend, and if another party attends in person or by attorney because he or she expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by the other party and his or her attorney in attending, including reasonable attorney’s fees. [As amended July 1, 1979; and by order filed February 1, 1995, effective July 1, 1995.]

Advisory Commission Comments.

This Rule is designed to provide a comprehensive guide for the taking of depositions upon oral examination. The method of serving notice for depositions taken under these Rules is set out in Rule 5. Rule 30.04 eliminates the reference “like or similar court in the jurisdiction where the deposition is being taken,” found in the Federal Rules.

Rule 30 generally corresponds to the equivalent numbered rule in the Georgia Civil Practice Act and in the Federal Rules of Civil Procedure.

Rule 30.02 contains two important innovations. Subdivision (4) empowers the court to order that a deposition may be taken by other than stenographic means. One example of recording the testimony at a deposition by other than stenographic means is the use of videotape in the taking of depositions. This is relatively new but is apparently being used in some places. It is emphasized that the testimony at a deposition may be recorded by other than stenographic means only upon order of the court. This rule permits but does not require the court to make such an order. Even when such an order is made, the party may arrange to have a stenographic transcription made at the party’s own expense. [1979.]

Subdivision (6) permits an organization rather than an individual to be named in a subpoena. The organization shall then designate the person or persons to testify on its behalf in response to the subpoena. [1979.]

30.02: The language permitting written stipulation comes from F.R.Civ.P. 30(b)(4) and constitutes merely a cross-reference to T.R.Civ.P. 29, under which parties may vary any discovery rule by a stipulation in writing. The word “assume” in the Code text is a typographical error; the word should be “assure.” The last sentence in the first paragraph, taken from F.R.Civ.P. 30(b)(4) but modified, is needed to cover the procedure incident to depositions taken by other than traditional methods. [1986.]

Beginning with the paragraph (B), T.R.Civ.P. 30.02(4) is new [in 1986]. With few changes, the Commission proposes adoption of the Uniform Audio-Visual Deposition Rule. Although a stenographic record of the videotape deposition is optional, an appellant will need to provide a transcribed record for the appellate court. See T.R.App.P. 24 and the Advisory Commission Comment. [1986.]

(7): While perhaps not preferable from a tactical standpoint in many instances, there are occasions when great distances and modest funds militate in favor of a deposition by telephone. The [1984] amendment expressly allows this form of “deposition upon oral examination” by stipulation or order; probably it has been implicitly permissible by stipulation under Rule 29. [1984.]

30.03: The added language in the second paragraph of Rule 30.03 admonishes lawyers not to make “speaking” objections, which unethically put lawyers’ words in deponents’ mouths. “Instructions” to a deponent not to answer a deposition question are made not only without authority but are unethical and sanctionable. See First Tennessee Bank v. FDIC, 108 F.R.D. 640 (E.D. Tenn. 1985). Some courts have reminded the bar that a deposition is a formal judicial proceeding – albeit absent a presiding judge – and consequently consultations between counsel and deponent during questioning are not to be tolerated any more than it would be in the courtroom. See Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). [1995.]

30.06: In rare cases, the “party who requested the taking of the deposition” may have been dismissed from the cause prior to the hearing. In such instances, a copy in the possession of a remaining party could be used under Evidence Rule 1003. [1996.]

Advisory Commission Comments [1996].

A lawyer or agent can operate the equipment at a videotaped deposition.

Advisory Commission Comments [2004].

The new second paragraph of Rule 30.06 will require that parties give notice whenever they file a deposition.

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