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Rule 30 – Depositions Upon Oral Examination

May 13, 2021 | Civil Law, Massachusetts

(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: (i) 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) (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 subdivision (b)(2) of this rule); (ii) there is no reasonable likelihood that recovery will exceed $5,000 if the plaintiff prevails; (iii) the action is pending in the Superior Court and there has been a trial in a District Court before a transfer; (iv) there has been a hearing before a master; or (v) the relief sought is the custody of minor children, divorce, affirmance or annulment of marriage, separate support, or any like relief. 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.

(1) A party desiring to take the deposition of any person upon oral examination shall give at least seven days’ notice in writing to every other party to the action. 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 him or the particular class or group to which he 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 county where the action is pending and more than 100 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage abroad, and will be unavailable for examination unless his 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 his signature constitutes a certification by him that to the best of his 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 he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.

(3) The court may for cause shown enlarge or shorten the time for taking the deposition.
(4) Any oral deposition may be recorded by (i) stenographic or (ii) stenographic and audio-visual means. If the deposition is recorded by stenographic and audio-visual means, the parties shall comply with the provisions of Mass.R.Civ.P. 30 and 30A. 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. Except as otherwise provided by this rule, the rules governing the practice and procedure in depositions and discovery shall apply. The party choosing to have the testimony recorded by stenographic and audio-visual means shall bear the entire cost of the audio-visual recording, except that each party shall bear the cost for a copy of the audio-visual recording and the stenographic record. By leave of court upon motion with notice and an opportunity to be heard in opposition, or by stipulation in writing of all parties, a party taking an oral deposition may have the testimony recorded by other than stenographic or stenographic and audio-visual means. The stipulation or order shall designate the person before whom the deposition shall be taken, 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 his own expense. Any objections under subdivision (c), any changes made by the witness, his signature identifying the deposition as his 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) shall be set forth in a writing to accompany a deposition recorded by non-stenographic means. In any event, however, where testimony is to be recorded by audio-visual means, the provisions of Rule 30A shall apply.
(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 and, notwithstanding the provisions of subdivision (b)(1) of this Rule, the party making the request shall give at least 30 days’ notice in writing to every other party to the action. The court may on motion with or without notice allow a shorter or longer time.
(6) A party may in his 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. 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 he will testify. A subpoena shall advise a non-party 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 (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
(7) By leave of court upon motion with notice and an opportunity to be heard in opposition, or by stipulation in writing of all parties, a deposition may be taken by telephone. For the purpose 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 county and at the place where the deponent is to answer questions propounded to him.
(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 provisions of Rule 43(b). 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 the officer’s presence, record the testimony of the witness. The testimony shall be taken stenographically or by voice writing or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and such party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

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 objection to the proceedings, shall be noted by the officer upon the deposition; but the examination shall proceed. Any objection to testimony during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. Testimony to which objection is made shall be taken subject to the objections. Counsel for a witness or a party may not instruct a deponent not to answer except where necessary to assert or preserve a privilege or protection against disclosure, to enforce a limitation on evidence directed by the court or stipulated in writing by the parties, or to terminate the deposition and present a motion to the court pursuant to Rules 30(d) or 37(d).

(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of any 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 county or judicial district, as the case may be, 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 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(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 shall be submitted to the witness for examination and shall be read to or by him, 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 to him, 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 that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(f) Certification and Delivery by Officer; Exhibits; Copies; Notice of Receipt.

(1) The officer shall certify on the deposition transcript that the witness was duly sworn by him and that the deposition transcript is a true record of the testimony given by the witness. Unless otherwise ordered by the court generally or in a specific case or stipulated by the parties, he shall then securely seal the deposition transcript in an envelope endorsed with the title of the action and marked “Deposition of [here insert name of witness]” and shall promptly deliver or send it to the party taking the deposition.

Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition transcript and may be inspected and copied by any party, except that if the person producing the material desires to retain them he may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he 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 transcript to the court, pending final disposition of the case.

(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition transcript to any party or to the deponent.
(3) The party taking the deposition shall give prompt notice of its receipt to all other parties.
(g) 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 amount of the reasonable expenses incurred by him and his attorney in so 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 him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he 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 amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney’s fees.

Mass. R. Civ. P. 30

Amended Dec. 16, 1980, effective Jan. 1, 1981; Oct. 27, 1981, effective Jan. 1, 1982; May 25, 1982, effective July 1, 1982; Jan. 30, 1989, effective March 1, 1989; May 3, 1996, effective July 1, 1996; Oct. 1, 1998, effective Nov. 2, 1998; amended Sept. 11, 2017, effective Sept. 1, 2017

Reporter’s Notes:

(2001): In 1998, the Supreme Judicial Court amended Rule 30 in an attempt to deal with “deposition abuse.” Rule 30(c) now provides that objections during a deposition “shall be stated concisely and in a non-argumentative and non-suggestive manner.” Further, the amended rule prohibits an instruction to a deponent not to answer except where a privilege may exist or where some other legal protection against disclosure may apply. The language of the Massachusetts rule was drawn from Federal Rule 30.

Despite the 1998 amendment which requires that objections be made in a non-argumentative and non-suggestive manner, suggestive objections or comments continue to be made at depositions. Further commentary is therefore in order. The intent of the 1998 amendment was to prevent the indirect coaching of witnesses by objections or comments from counsel. Thus, the attorney who, after a question, interjects the suggestive objection or comment “if you remember,” “if you understand,” or “if you have personal knowledge,” acts contrary to the language and spirit of the new rule by indirectly suggesting how the witness should respond. The questioning attorney may consider taking appropriate action in response to such coaching suggestions, including suspending the deposition for purposes of obtaining an appropriate court order (Rule 30(d) ).

It has been suggested that some attorneys, cognizant of the prohibition against suggestive comments or hints during the deposition, may accomplish the same result by seeking to confer with the client in private prior to the client answering the question. It appears that the rule does not permit such conferences except where appropriate to preserve a privilege or protection against disclosure. A deponent, for example, may not realize that the privilege against self-incrimination provides a legal basis to decline to answer a question; intervention of counsel and a conference with counsel may be necessary to determine whether the deponent will invoke the privilege. In other circumstances, however, the use of private conferences between lawyer and deponent would serve to provide an end-run around the 1998 rule against suggestive objections and the general rule that examination of witnesses at depositions “may proceed as permitted at the trial…” (Rule 30(c) ). Just as a lawyer may not interrupt the questioning of a witness in order to confer in private and develop strategy with the witness, nor should the lawyer be allowed to interrupt the flow of questions at a deposition. Nor may the deponent stop the deposition in order to seek the advice of counsel (except in the case of a privilege or protection against disclosure).

(1998) The purpose of the 1998 amendments to Rule 30, modeled after 1993 amendments to Federal Rule 30, is to address the problem created by objections during a deposition and by directions to a deponent by counsel not to answer a question.

Under the revised rule, objections must “be stated concisely and in a non-argumentative and non-suggestive manner.” The Notes of the Advisory Committee on the 1993 federal change aptly described the problem concerning objections as follows: “Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.”.

A related problem concerns instructions by counsel to a deponent not to answer. This issue is addressed by the 1998 amendments by adding language to Rule 30(c), taken in part from 1993 amendments to Federal Rule 30, that such instructions are permissible only in the case of a privilege (such as attorney-client privilege) or protection against disclosure (such as the “work product” protection set forth in Mass. R. Civ. P. 26(b)(3) ); where a court has imposed limitations on the deposition testimony; where the parties have entered into a written stipulation setting forth limitations; or to terminate the deposition in order to move in court for an appropriate order regarding the deposition (for example, a motion under Mass. R. Civ. P. 30(d) to terminate or limit the deposition on the basis that “the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party”).

It should be noted that Mass. R. Civ. P. 30(c) makes clear that if there is objection to certain aspects of the deposition, the deposition shall proceed and the objection preserved. Objecting counsel does have the option, of course, under Mass. R. Civ. P. 30(d), to suspend the deposition for purposes of seeking a court order to terminate or limit the deposition. Counsel considering such a move, however, may want to consider the technique of recommending that the objectionable questions be set aside until later in the deposition in order to allow the rest of the deposition to move forward without interruption. After the rest of the questioning is complete, counsel may then consider whether it is necessary to bring the objections to the attention of the court.

The 1998 amendments have also moved the last sentence of the second paragraph of Rule 30(c) to the first paragraph for clarity purposes, thus leaving the focus of the second paragraph on objections and evidence at depositions.

Finally, minor changes have been made to the first paragraph of Rule 30(c) in order to make the language gender-neutral.

(1996) Rule 30(d) has been amended to add a reference to “judicial district” to take into account the applicability of the Rules to the District Court and Boston Municipal Court. Certain provisions from Mass. R. Civ. P. 30 which did not appear in the District Court version of Rule 30 (regarding leave of court where the action is pending in the Superior Court after District Court trial and where the action relates to domestic relations matters) now apply in the merged set of Rules.

(1989) Because of the simultaneous amendment to Mass. R. Civ. P. 5(d) which states that transcripts of depositions shall no longer ordinarily be presented or accepted for filing, the obligation of the officer at the deposition to file the deposition has been changed. “Unless otherwise ordered,” the officer must now “deliver or send” the deposition “to the party taking the deposition” (Rule 30(f)(1) ), and the party taking the deposition “shall give prompt notice of its receipt to all other parties” (Rule 30(f)(3) ). See, also, Reporter’s Notes to the Amendment to Rule 5(d).

(1973) Although patterned on Federal Rule 30, Rule 30 has been altered to encompass existing practice under S. J. C. Rule 3:15. The situations in which leave of court must first be obtained closely follow the strictures of S. J. C. Rule 3:15. The rest of the procedural scheme is thoroughly familiar. In order to fill what appeared to be a hiatus in Federal Rule 30, the Advisory Committee inserted in Rule 30(b)(5) language to ensure that a party seeking documentary discovery at an oral deposition provide his opponent with at least 30 days’ notice.