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Rule 28 – Persons before Whom Depositions May be Taken; Depositions in Out-of-state Actions

May 14, 2021 | Civil Procedure, South Carolina

(a) Within the United States. Within any state or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. The term officer as used in Rules 30, 31 and 32 includes a person appointed by the court or designated by the parties under Rule 29.
(b) In Foreign Countries. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed “To the Appropriate Authority in (here name the country).” Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.
(c) 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.
(d) Depositions or Production in Out-of-State Actions.

(1) When the deposition of a witness or production of documents or other things, is to be done in this State for use in an out-of-state action or proceeding, an attorney, licensed to practice law in this State, or the clerk of court, may issue a subpoena, including a subpoena duces tecum, compelling the attendance of such witness at that deposition, or the production of documents or other things pursuant to this rule and subject to all of the requirements of Rule 45 and Rule 11, only after payment of the filing fee set [1] by Administrative Rule, and after filing with the Clerk of Court:

(A) A certified copy of any mandate, writ, or commission issued by a court of record in any other state, territory, district, or foreign jurisdiction directing that such deposition be taken or documents or other things produced; or
(B) a certified copy of a notice or written agreement filed in a court of record in any other state, territory, district, or foreign jurisdiction directing that such deposition be taken or documents or other things produced.
(2) Such witness may be compelled to attend a deposition only in the county where he resides, where he is employed, or where he transacts his business in person.
(3) Such witness or a party may obtain a protective order pursuant to Rule 26(c) upon application to the court in the county from which the subpoena is issued.
(4) If such witness fails to obey the subpoena or refuses to answer any question propounded upon oral examination, the provisions of Rule 37(a) and (b) shall apply, and the party requesting the deposition shall make application for such order to the court of the county from which the subpoena was issued.
(5) Such witness is entitled to the same compensation as provided to a witness pursuant to Rule or statute.
(6) The clerk of court, shall, upon receipt of the above described filing fee, file all papers received by him pursuant to this Rule.

S.c. R. Civ. P. 28

Rule 28 (a)-(c) is substantially the same as Federal Rule 28. The language of 28(d) is the same as in Circuit Court Rule 100, with minor changes to conform to the new organization and rearrangement of these rules. Notes to 1986 Amendment: This change [to Rule 28(d)(1) ] permits the filing fee to be set by administrative rule of the Supreme Court rather than by amendment of procedural rules. Note to 1995 Amendment: Rule 28(d) governing depositions and document production in South Carolina for use in an out-of-state action is amended to conform to recently revised Rule 45. The amended rule permits an attorney licensed to practice law in South Carolina or the clerk of court to issue the subpoena. In addition, as provided in Rule 45(a)(1)(D) the subpoena may be for the production of documents without the necessity of a deposition. The filing fee and file the required documents must be filed with the clerk of the court in the appropriate county before the attorney or the clerk may issue the subpoena. The attorney is subject to all of the provisions in Rule 11 and Rule 45, particularly 45(c)(1) regarding the duty to avoid imposing undue burden or expense on a person subject to the subpoena. [1] By Order dated February 21, 2003, effective March 1, 2003, the filing fee was set at $50. Rule 28(d) is consistent with the South Carolina Uniform Interstate Depositions and Discovery Act, which is codified at S.C. Code Ann. ยง 15-47-100 et seq.