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Rule 1.701 – Depositions upon oral examination

May 13, 2021 | Civil Procedure, Iowa

1. 701(1)When depositions may be taken.

a. Without leave. Any party may, by deposition upon oral examination, take the testimony of any person, including a party, without leave of court except as provided in rule 1.701(b). The attendance of witnesses may be compelled by subpoena as provided in rule 1.715.
b. With leave. Leave of court, granted with or without notice, must be obtained if:

(1) The parties have not stipulated to the deposition and the party seeks to take the deposition before the time specified in rule 1.505(1), unless special notice is given as provided in rule 1.701(2); or
(2) The parties have not stipulated to the deposition and the deponent has already been deposed in the case; or
(3) The deponent is confined in prison.
1. 701(2)Special notice for taking of deposition by plaintiff. Leave of court is not required for the taking of a deposition by plaintiff if the notice, in addition to those things required by rule 1.707(1), does the following:

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 the expiration often days after the date for motion or answer for any defendant.
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.

If a party shows that upon being served with notice under this rule, 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 that party.

1. 701(3)Enlarging and shortening time. The court may for cause shown enlarge or shorten the time for taking the deposition.
1. 701(4)Recording. The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to ensure 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. Leave of court is not required to record testimony by nonstenographic means if the deposition is also to be recorded stenographically.
1. 701(5)Place of deposition.

a. Oral depositions may be taken only within this state or within 100 miles from the nearest Iowa point. But, upon motion of the party desiring the deposition, and after hearing on notice to the other parties, the court may order it orally taken at any other specified place, if the issue is sufficiently important and the testimony cannot reasonably be obtained by written interrogatories or by deposition by telephone.
b. If the deponent is a party or the officer, partner or managing agent of a party which is not a natural person, the deponent shall be required to submit to examination in the county where the action is pending, unless otherwise ordered by the court.
1. 701(6)Failure to attend or serve subpoena; expenses.

a. 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 the other party and the other party’s attorney in attending, including reasonable attorney’s fees.
b. 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 does not attend because of such failure, and if another party attends in person or by attorney because such other party 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 the other party’s attorney in attending, including reasonable attorney’s fees.
1. 701(7)Depositions by telephone. Any deposition permitted by the rules in this chapter may be taken by telephonic means.

A party desiring to take the deposition of any person upon oral examination by telephonic means shall give reasonable notice thereof in writing to every other party to the action. Such notice shall contain all other information required by rule 1.707(1) and shall state that the telephone conference will be arranged and paid for by the initiating party. No part of the expense for telephone service shall be taxed as costs.

The person reporting the testimony shall be in the presence of the witness unless otherwise agreed by all parties.

If any examining party desires to present exhibits to the witness during the deposition, copies shall be sent to the deponent and the parties prior to the taking of the deposition.

Nothing in this rule shall prohibit a party or counsel from being in the presence of the deponent when the deposition is taken.

Iowa. R. Civ. P. 1.701

Report October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002; August 28, 2014, effective January 1, 2015.