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Rule 30 – Depositions Upon Oral examination

May 14, 2021 | Civil Procedure, Ohio

(A) When depositions may be taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. The attendance of a witness deponent may be compelled by the use of subpoena as provided by Civ.R. 45. The attendance of a party deponent may be compelled by the use of notice of examination as provided by division (B) of this rule. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(B) Notice of Examination; General Requirements; Nonstenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone or Other Means.

(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, a designation of the materials to be produced shall be attached to or included in the notice.
(2) If any party shows that when the party was served with notice 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 the party.
(3) If a party taking a deposition wishes to have the testimony recorded by other than stenographic means, the notice shall specify the manner of recording, preserving, and filing the deposition. The court may require stenographic taking or make any other order to ensure that the recorded testimony will be accurate and trustworthy. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.
(4) The notice to a party deponent may be accompanied by a request made in compliance with Civ. R. 34 for the production of documents and tangible things at the taking of the deposition.
(5) A party, in the party’s notice, may name as the deponent a public or private corporation, a partnership, or an association and designate with reasonable particularity the matters on which examination is requested. The organization so named shall choose one or more of its proper employees, officers, agents, or other persons duly authorized to testify on its behalf. The persons so designated shall testify as to matters known or available to the organization. Division (B)(5) does not preclude taking a deposition by any other procedure authorized in these rules.
(6) The parties may stipulate or the court may upon motion order that a deposition be taken by telephone or other remote means. For purposes of this rule, Civ. R. 28, and Civ. R. 45(C), a deposition taken by telephone is taken in the county and at the place where the deponent answers the questions.
(C)Examination and cross-examination; record of examination; oath; objections; written questions.

(1) Examination and cross-examination. Each party at the deposition may examine the deponent without regard to which party served notice or called the deposition. In all other respects the examination and cross-examination of a deponent may proceed as they would at the trial under the Ohio Rules of Evidence, except Evid.R. 103 and Evid.R. 615. After putting the deponent under oath or affirmation, the officer shall record the testimony by the method designated under Civ.R. 30(B)(3). The testimony shall be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.
(2) Objections An objection made at the time of the examination whether to evidence, a party’s conduct, the officer’s qualifications, the manner of taking the deposition, or to any other aspect of the deposition shall be noted on the record, but the examination still proceeds, the testimony taken subject to any objection. An objection shall be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by a court, or to present a motion under Civ.R. 30(D).
(3) Participating through written questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.
(D) Motion to terminate or limit examinations. At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Civ. R. 26(C). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Civ. R. 37 apply to the award of expenses incurred in relation to the motion.
(E) Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill, cannot be found, or refuses to sign. The witness shall have thirty days from submission of the deposition to the witness to review and sign the deposition. If the deposition is taken within thirty days of a trial or hearing, the witness shall have seven days from submission of the deposition to the witness to review and sign the deposition. If the trial or hearing is scheduled to commence less than seven days before the deposition is submitted to the witness, the court may establish a deadline for the witness to review and sign the deposition. If the deposition is not signed by the witness during the period prescribed in this division, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(F) Certification and filing by officer; exhibits; copies; notice of filing.

(1)

(a) Upon request of any party or order of the court, the officer shall transcribe the deposition. Provided the officer has retained an archival-quality copy of the officer’s notes, the officer shall have no duty to retain paper notes of the deposition testimony. The officer shall certify on the transcribed deposition that the witness was fully sworn or affirmed by the officer and that the transcribed deposition is a true record of the testimony given by the witness. If any of the parties request or the court orders, the officer shall seal the transcribed deposition in an envelope endorsed with the title of the action and marked “Deposition of (here insert name of witness)” and, upon payment of the officer’s fees, promptly shall file it with the court in which the action is pending or send it by United States certified or express mail or commercial carrier service to the clerk of the court for filing.
(b) Unless objection is made to their production for inspection during the examination of the witness, documents and things shall be marked for identification and annexed to and returned with the deposition. The materials may be inspected and copied by any party, except that the person producing the materials may substitute copies to be marked for identification, if the person affords to all parties fair opportunity to verify the copies by comparison with the originals. If the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition.
(2) Upon payment, the officer shall furnish a copy of the deposition to any party or to the deponent.
(3) The party requesting the filing of the deposition shall forthwith give notice of its filing to all other parties.
(4) As used in division (F) of this rule, “archival-quality copy” means any format of a permanent or enduring nature, including digital, magnetic, optical, or other medium, that allows an officer to transcribe the deposition.
(G) Failure to attend or to serve subpoena; expenses.

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed with the deposition 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 the other party the amount of the reasonable expenses incurred by the other party and the other party’s attorney in so attending, including reasonable attorney’s fees.
(2) 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 because of the failure does not attend, and another party attends in person or by attorney because the other party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to the other party the amount of the reasonable expenses incurred by the other party and the other party’s attorney in so attending, including reasonable attorney’s fees.

Ohio. Civ.R. 30

Effective:July 1, 1970; amended effective July 1, 1976;July 1, 1985;July 1, 1992;July 1, 1994;July 1, 1997;July 1, 2006;July 1, 2012;July 1, 2015;July 1, 2017.

Staff Notes (July 1, 2017 Amendments)

Civ.R. 30(C). Examination and cross-examination; objections.

The 2017 amendments adopt the 2007 stylistic changes to Fed.R.Civ.P. 30(c), including a nonsubstantive substitution of “deponent” for “witness.” Deponents include both parties and non-parties. See Civ.R. 30(A).

The amendments provide that the Rules of Evidence shall apply at a deposition, except Evid.R. 103 and Evid.R. 615. The Federal Rules first included this provision in 1993. With respect to the exception of Evid.R. 615, the Notes of the Federal Advisory Committee included the following comments which are approved and re-stated in this Staff Note:

“[T]he revision addresses a recurring problem as to whether other potential deponents can attend a deposition. Courts have disagreed, some holding that witnesses should be excluded through invocation of Rule 615 of the evidence rules, and others holding that witnesses may attend unless excluded by an order under [Rule 26(c)]. The revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under [Rule 26(c)] when appropriate; and, if exclusion is ordered, consideration should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions. The revision addresses only the matter of attendance by potential deponents, and does not attempt to resolve issues concerning attendance by others, such as members of the public or press.

In adopting the 2007 federal stylistic changes, the amendments include provisions of the federal rule addressing the manner of making objections and the circumstances under which an instruction not to answer a question may be given. These additional provisions are consistent with the guidelines entitled: Professionalism Dos and Don’ts: Depositions, first published by the Ohio Supreme Court’s Commission on Professionalism in 2012.

The amendments also add an introductory sentence to Civ.R. 30(C), which specifies that each party at the deposition may examine the deponent without regard to which party served notice or called the deposition. Although this introductory sentence is not found in the current federal rule, the provision is consistent with federal practice. See, Powell v. Time Warner Cable, Inc., Case No. 2:09-CV-00600 (S.D.Ohio Nov. 2, 2010) (order partially granting motion to compel); Smith v. Logansport Community School, 139 F.R.D. 637, 642 (N.D.Ind 1991).

Staff Note (July 1, 2015 Amendments)

Rule 30(B)(3)

This amendment is modeled on Fed.R.Civ.P. 30(b)(3)(B) and permits a party other than the one noticing the deposition, at its own expense, after notice to the deponent and parties, to arrange for an additional method of recording the testimony, unless the court orders otherwise.

Rule 30(B)(6)

This amendment is modeled on Fed.R.Civ.P. 30(b)(4) and allows the parties to stipulate that a deposition may be taken by other remote means, such as over the Internet or using a satellite, rather than limiting the means of taking to the telephone.

Staff Note (July 1, 2006 Amendment)

The 2006 amendments contain two changes pertaining to the time period for reviewing and signing depositions and the retention of deposition notes by the court reporter who transcribed the deposition.

Rule 30(E) Submission to witness; changes; signing

Civ. R. 30(E) is amended to allow a witness thirty days to review and sign a deposition. The former rule allowed the witness only seven days to review and sign a deposition, and the Committee recognized that a careful review of a deposition in that period of time was sometimes practically or logistically difficult. When a deposition is taken close to trial, however, a quick turn-around may be necessary. Consequently, division (E) is amended to expand to thirty days the period in which a witness has to review and sign a deposition. Exceptions are provided for cases where the deposition is taken within thirty days of trial or hearing, in which case the seven-day rule still applies, or less than seven days of trial or hearing, in which case the trial judge may establish a different deadline. This amendment brings the Ohio rule closer to the Federal Rules of Civil Procedure, which give a witness thirty days to review and sign a deposition.

Rule 30(F) Certification and filing by officer; exhibits; copies; notice of filing

The 2006 amendment added division (F)(4). The amendment responds to a concern expressed by individuals charged with taking or keeping notes of depositions in light of changes in technology and the fact that most present-day court reporting machines no longer use paper but record and retain deposition testimony via electronic means. The amendment clarifies that “archival-quality copy” means any format of a permanent or enduring nature that will allow an officer to transcribe the deposition. In light of this definition, division (F)(1)(a) was revised to delete language that required the retention of paper notes of deposition testimony for a minimum of five years following the deposition.

Staff Note (July 1, 1997 Amendment)

Rule 30(F) Certification and filing by officer; exhibits; copies; notice of filing.

The 1997 amendment added the second sentence to division (F)(1). The amendment responds to a concern frequently expressed by individuals charged with taking or keeping notes of depositions, namely, what duty there is (if at all) to retain such notes. Present practice in Ohio on this matter appears to vary widely, and space and expense concerns come into play if such notes are kept in perpetuity. The amendment permits the officer to discard notes of a deposition, five years after it has taken place (whether or not the deposition has been transcribed), as long as the officer retains an archival quality copy of the notes. Archival quality would include notes maintained in magnetic, optical, or other equivalent medium. The original notes must be retained for at least five years, to provide a backup source should the archival-quality copy in any particular case not produce a usable deposition. It is anticipated that any such instances should be rare; however, in the unlikely event that such problems arise, most requests to transcribe depositions would take place within about five years of the original taking of the deposition. By that point, presumably, in most cases the litigation that gave rise to the deposition will have come to an end, as would the need for a transcribed copy of the deposition. For those few instances when a transcribed deposition is needed more than five years later, under the amendment the original notes or an archival-quality copy thereof will still be available.

Prior to the 1997 amendment, service under this rule was permitted only by certified mail. It appears that service by express mail, i.e. as that sort of mail is delivered by the United States Postal Service, can always be obtained return receipt requested, and thus could accomplish the purpose of notification equally well as certified mail. Therefore, the amendment to division (F)(1) provides for this additional option for service.

Other amendments to this rule are nonsubstantive grammatical or stylistic changes.