(dc) District court rule. Rule 28(a), Rule 28(b), and Rule 28(d) apply in the district courts in those instances when depositions on written questions or depositions on oral examination are permitted by Rule 26(dc). Rule 28(c) does not apply in the district courts.
Ala. R. Civ. P. 28
Committee Comments on 1973 Adoption
Rule 28(a) is based generally on federal Rule 28(a). It provides a broad class of persons before whom depositions may be taken for use in Alabama actions.
As is indicated by that part of Rule 28(a) which authorizes taking a deposition before “an officer authorized to administer oaths by the laws … of the state or other place where the examination is held …”, depositions for use in Alabama actions need not be taken within the state. They may be taken wherever the party noticing the taking of the depositions desires, subject to the power of the court under Rule 26(c) to make a protective order barring taking of the deposition at the place indicated. But a subpoena to require the witness to attend the deposition will not run outside the state. See Rule 45(d). This is immaterial where it is the deposition of a party which is sought. The mere notice of taking the deposition is enough to require a party to attend, Rule 30, and no subpoena is needed. But these rules do not and cannot provide any means to compel a recalcitrant nonparty witness who cannot be served within the state to attend the taking of a deposition. Many states, however, have statutes like Rule 28(b) making their subpoena power available to compel their residents to appear for depositions to be used in foreign actions.
Rule 28(b) is closely modeled on Ky.R.C.P. 28.03, and is substantially similar to Code 1940, Tit. 7, § 464. It provides a procedure for compelling residents of Alabama to attend deposition hearings here for use in actions pending in other states and countries, of the same sort as the similar courtesy which many states extend where the testimony of their residents is needed for use in Alabama actions.
Committee Comments to Amendment to Rule 28
Effective September 1, 1987.
Subdivision (a) is virtually identical to Rule 28(a), Federal Rules of Civil Procedure. It provides a broad class of persons before whom depositions may be taken for use in Alabama actions. This amendment revised slightly the wording of subdivision (a) to more nearly parallel the wording of the federal rule.
As is indicated by that part of subdivision (a) which authorizes taking a deposition before “an officer authorized to administer oaths by the laws. . . of the place where the examination is held . . .”, depositions for use in Alabama actions need not be taken within the state. They may be taken wherever the party noticing the taking of the depositions desires, subject to the power of the court under Rule 26(c) to make a protective order barring taking of the deposition at the place indicated. But a subpoena to require the witness to attend the deposition will not run outside the state. See Rule 45(d). This is immaterial where it is the deposition of a party which is sought. The mere notice of taking the deposition is enough to require a party to attend, Rule 30, and no subpoena is needed. But these rules do not and cannot provide any means to compel a recalcitrant nonparty witness who cannot be served within the state to attend the taking of a deposition. Many states, however, have statutes like subdivision (c) making their subpoena power available to compel their residents to appear for depositions to be used in foreign actions.
Subdivision (b) was added by the 1987 amendment. This rule is modeled on federal Rule 28(b) and was added to facilitate discovery in foreign countries to be used in this state, pursuant to these rules.
The taking of depositions in foreign countries which are signatories to the Hague Convention through letters rogatory or letters of request must conform to the provisions of the Hague Convention on The Taking of Evidence Abroad in Civil or Commercial Matters of March 18, 1970. Appended to the convention is a specific form for requesting international judicial assistance in taking evidence in a foreign country. See Note to 28 U.S.C. § 1781 (1982).
The necessity for complying precisely with the requirements of a treaty or convention to which the United States is a signatory is demonstrated by Rivers v. Stihl, Inc., 434 So. 2d 766 (Ala. 1983), which held service of process under Rule 4.4(b)(1) insufficient where the provisions of the Hague Convention on The Service Abroad of Judicial and Extrajudicial Documents In Civil or Commercial Matters of November 15, 1965, were not precisely followed. For federal statutory authorization regarding letters rogatory see 28 U.S.C. § 1781, 1782 (1982).
Subdivision (c), formerly subdivision (b), closely follows Ky.R.C.P. 28.03, and is substantially similar to Code of Ala., Title 7, § 464 (1958). It provides a procedure for compelling residents of Alabama to attend deposition hearings here for use in actions pending in other states and countries of the same sort as the similar courtesy which many states extend where the testimony of their residents is needed for use in Alabama actions. The September 1, 1987, amendment changed the style of this provision from subdivision (b) to subdivision (c) and made nonsubstantive grammatical changes.
Subdivision (d) is identical to federal Rule 28(c). The September 1, 1987, amendment changed the style of this provision from subdivision (c) to subdivision (d) and made nonsubstantive grammatical changes.
Subdivision (dc) was changed by the amendment of September 1, 1987, so far as was necessary in order to recognize the changes that had been made by that amendment in the remainder of this rule.
Committee Comments to October 1, 1995, Amendment to Rule 28
The amendment is technical. No substantive change is intended.