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Rule 28 – Persons Before Whom Depositions May Be Taken

May 13, 2021 | Civil Procedure, Montana

(a) Within the United States.

(1) Within Montana. Within the state of Montana, a deposition must be taken before:

(A) an officer authorized by the laws of this state to administer oaths; or
(B) a person appointed by the court in which the action is pending to administer oaths and take testimony.
(2) Within the United States outside Montana. Within the United States or a territory or insular possession subject to United States jurisdiction, outside the state of Montana, a deposition must be taken before:

(A) an officer authorized to administer oaths by the laws of this state, the United States, or of the place where the examination is held; or
(B) a person appointed by the court in which the action is pending.
(3) Definition of “Officer.” The term “officer” in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a).
(b) In Foreign Countries.

(1) In General. A deposition may be taken in a foreign country:

(A) under an applicable treaty or convention;
(B) under a letter of request, whether or not captioned a “letter rogatory”;
(C) on notice, before a person authorized to administer oaths either by Montana law, federal law, or by the law in the place of examination; or
(D) before a person commissioned by the court to administer any necessary oath and take testimony.
(2) Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued:

(A) on appropriate terms after an application and notice of it; and
(B) without a showing that taking the deposition in another manner is impracticable or inconvenient.
(3) Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed “To the Appropriate Authority in [name of country].” A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken.
(4) Letter of Request — Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the state of Montana.
(c) Interstate Depositions and Discovery.

(1) Definitions. For purposes of this rule:

(A) “Foreign jurisdiction” means a state other than Montana;
(B) “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction;
(C) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity;
(D) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; and
(E) “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:

(i) attend and give testimony at a deposition;
(ii) produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or
(iii) permit inspection of premises under the control of the person.
(2) Issuance of a Subpoena.

(A) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in Montana. A request for issuance of a subpoena under this act does not constitute an appearance in the courts of this state.
(B) When a party submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.
(C) A subpoena under subsection (B) must:

(i) incorporate the terms used in the foreign subpoena; and
(ii) contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
(3) Service of a Subpoena. A subpoena issued by a clerk of court under paragraph (c)(2) of this rule must be served in compliance with Rule 45.
(4) Deposition, Production, and Inspection. Rules 30, 31, 34, and 45 apply to subpoenas issued under paragraph (c)(2) of this rule.
(5) Application to Court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under paragraph (c)(2) of this rule must comply with the rules or statutes of this state and be submitted to the court for the county in which discovery is to be conducted.
(d) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

The officer taking the deposition, or any other person with whom such officer has a principal and agency relationship, shall not enter into an agreement for reporting service which does any of the following:

(1) requires the court reporter reporting the deposition to relinquish control of an original deposition transcript and copies of the transcript before it is certified and delivered to the custodial attorney;
(2) requires the court reporter to provide special financial terms or other services that are not offered at the same time and on the same terms to all other parties in the litigation, or in any way offers any incentives or rewards to the attorneys, parties to the litigation, or to anyone else who has an interest in the litigation;
(3) gives an exclusive monetary or other advantage to any party; or
(4) compromises the impartiality of the court reporter, or that may result in the appearance that the impartiality of the court reporter has been compromised.

M.R. Civ. P. 28

En. Sup. Ct. Ord. No. AF 07-0157, April 26, 2011, eff. Oct. 1, 2011.