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Rule 28 – Persons Before Whom Depositions May Be Taken; Discovery Across State Lines; Before Administrative Agencies; and After Judgment

May 13, 2021 | Civil Procedure, Indiana

(A)Within the United States. Within the United States or within a territory or insular possession subject to the dominion 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 state of Indiana, 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.
(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. Unless otherwise permitted by these rules, 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)Scope of discovery outside state-Protective and enforcement orders. A deposition may be taken outside the state as provided in subdivisions (A) and (B) of this rule, and the deponent may be requested to produce documents and things, and may also be requested to allow inspections and copies as provided in Rule 34 to submit to examination under Rule 35. Protective orders may be granted by the court in which the action is pending and by the court where discovery is being made. Enforcement orders may be made by the court where the discovery is sought, and enforcement orders and sanctions may be made by the court where the action is pending as against parties and as against witnesses subject to the jurisdiction of the court. When no action is pending, a court of this state may authorize a deposition to be taken outside this state of any person and upon any matters allowed by Rule 27.
(E)Assistance to tribunals and litigants outside this state. A court of this state may order a person who is domiciled or is found within this state to give his testimony or statement or to produce documents or other things, allow inspections and copies and permit physical and mental examinations for use in a proceeding in a tribunal outside this state. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this state, for taking the testimony or statement or producing the documents or other things. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this state issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have power to administer any necessary oath. A person within this state may voluntarily give his testimony or statement or produce documents or other things allowing inspections and copies and permit physical and mental examinations for use in a proceeding before a tribunal outside this state.
(F)Discovery proceedings before administrative agencies. Whenever an adjudicatory hearing, including any hearing in any proceeding subject to judicial review, is held by or before an administrative agency, any party to that adjudicatory hearing shall be entitled to use the discovery provisions of Rules 26 through 37 of the Indiana Rules of Trial Procedure. Such discovery may include any relevant matter in the custody and control of the administrative agency.

Protective and other orders shall be obtained first from the administrative agency, and if enforcement of such orders or right of discovery is necessary, it may be obtained in a court of general jurisdiction in the county where discovery is being made or sought, or where the hearing is being held.

(G)Applicability of other laws. This rule does not repeal or modify any other law of this state permitting another procedure for obtaining discovery for use in this state or in a tribunal outside this state, except as expressly provided in these rules.
(H)Discovery after judgment. Discovery after judgment may be had in proceedings to enforce or to challenge the judgment.

Ind. R. Civ. P. 28