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Rule 30 – Depositions Upon Oral Examination

May 14, 2021 | Civil Procedure, Vermont

(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 a Superior Judge, 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, 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. 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 a Superior Judge on such terms as the judge prescribes.
(b)Notice of Examination: General Requirements; Special Notice; Method of 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 at least 14 days before the time of taking the deposition, but any Superior Judge on an ex parte application and for good cause shown may prescribe a shorter notice. 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 a Superior Judge 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 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 the attorney’s signature constitutes a certification by the attorney 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 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 deposition may not be used against the party.

(3) Any Superior Judge may for cause shown enlarge or shorten the time for taking the deposition.
(4)

(A) A deposition shall be recorded stenographically unless the notice of taking states that it is to be recorded by sound or sound-and-visual means. The party taking the deposition shall bear the cost of recording. A deposition recorded stenographically shall be transcribed only if a party or witness so requests. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means. If a deposition is to be recorded nonstenographically, the notice of taking shall specify the method of recording; the equipment to be used; the name, address, and employer of the operator of the equipment; and the identity of the person who will administer the oath. The oath may be administered by an attorney for one of the parties who is a notary. Upon motion of a party or upon its own motion, the court may impose such additional conditions as are necessary to assure that testimony to be recorded by nonstenographic means will be accurate and trustworthy and to protect the interests of parties and witnesses.
(B) Any party or witness may at his or her own expense concurrently record a deposition by a method other than that being used by the party taking the deposition. All parties present and the witness shall be advised that the concurrent recording is being made. A person making a concurrent recording shall permit the parties and the witness to review the recording and shall furnish a duplicate to the witness or any party upon request and tender of the actual cost of the duplicate.
(C) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the officer that includes (i) the officer’s name and business address; (ii) the date, time, and place of the deposition; (iii) the name of the deponent; (iv) the administration of the oath or affirmation to the deponent; and (v) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (i) through (iii) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters. Any objections under subdivision (c), any changes by the witness, the witness’s 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 subdivision (e), and the certification of the officer required by subdivision (f) shall be set forth in writing to accompany a deposition recorded by nonstenographic means.
(5) The notice to a party deponent may be accompanied by a request that the party at the taking of the deposition produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of Rule 26(b). The party deponent may, within 7 days after service of the notice, serve upon the party taking the deposition written objection to inspection or copying of any or all of the designated materials. If objection is made, the party taking the deposition shall not be entitled to inspect the materials except pursuant to an order of any Superior Judge. The party taking the deposition may move at any time for an order under Rule 37(a) with respect to any objection to the request or any part thereof, or any failure to produce or permit inspection as requested.
(6) A party may in the party’s notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate 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 the person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
(7) The parties may stipulate in writing or a superior judge may upon motion order that a deposition be taken by telephone or other remote electronic means. For the purposes of this rule and Rules 28(a), 28(b), 37(a)(1), and 37(b)(1), a deposition taken by such means is taken at the place where the deponent is to answer 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 provisions of the Vermont 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 the officer’s presence, record the testimony of the witness. The testimony shall be taken stenographically 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.

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. Evidence objected to shall 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)Objections; Motion to Terminate or Limit Examination.

(1) Any objection to evidence during a deposition shall be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent 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 under paragraph (3).
(2) If the court finds that conduct contrary to paragraph (1) of this subdivision, or other conduct, has impeded or delayed the examination and has prevented a fair examination of the deponent, the court may extend the time for taking the deposition pursuant to paragraph (b)(3) of this rule, and may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.
(3) At any time during a 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, any superior judge may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of taking 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 judge who issued the order or of the Presiding Judge. 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 recording of a nonstenographic deposition is available, or the testimony in a stenographic deposition is fully transcribed, the deposition shall be submitted to the witness for review unless such review is waived by the witness and the parties. Any changes in form or substance which the witness desires to make shall be submitted in writing to the officer with a statement signed by the witness of the reasons for making them within 30 days after submission of the deposition to the witness. The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any changes were submitted and, if so, shall append the changes and the statement of reasons. The deposition, or a written statement that a nonstenographic deposition is the witness’s own, 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 or statement is not signed by the witness within 30 days of 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 Presiding Judge holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(f)Certification and Filing by Officer; Exhibits; Copies; Notice of Filing.

(1) The officer shall certify that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. This certificate shall be in writing and accompany the record of the deposition. Unless otherwise ordered by the court, the officer shall then securely seal the deposition in an envelope or package indorsed with the title of the action and marked “Deposition of [here insert name of witness]” and shall promptly file it with the court in which the action is pending or send it to the attorney who arranged for the transcript or recording, who shall store it under conditions that shall protect it against loss, destruction, tampering, or deterioration.

Documents and things produced for inspection during the examination of a witness, shall, upon the request of a party, be marked for identification and annexed to the deposition, and may be inspected and copied by any party, except that 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 court, pending final disposition of the case.

(2) Unless otherwise ordered by the court or agreed by the parties, the officer shall retain stenographic notes of any deposition taken stenographically or a copy of the recording of any deposition taken by any other method. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent.
(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 Presiding Judge may order the party giving the notice to pay to such 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 the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the Presiding Judge may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party’s attorney in attending, including reasonable attorney’s fees.

Vt. R. Civ. P. 30

Amended Dec. 28, 1981, eff. March 1, 1982; Dec. 28, 1982, eff. April 1, 1983; Oct. 21, 1983, eff. Jan. 1, 1984; Nov. 9, 1987, eff. March 1, 1988; Feb. 22, 1996, eff. July 1, 1996; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rules 30(b)(1) and (5) are amended to extend their 10- and 5-day time periods to 14 and 7 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.