Reporter’s Notes to Rule 30:

1. Rule 30 is, with the exception of minor wording changes, the same as FRCP 30. This rule also closely follows superseded Ark. Stat. Ann. § 28-352 (Repl. 1962), which was patterned after FRCP 30 as it existed prior to the series of amendments thereto beginning in 1970.

2. Section (a) is identical to FRCP 30(a). It is comparable to superseded Ark. Stat. Ann. § 28-348 (Repl. 1962), and works no appreciable change in Arkansas law.

3. Section (b)(1) is identical to FRCP 30(b)(1) and substantially follows superseded Ark. Stat. Ann. § 28-352(a) (Repl. 1962). It does not change Arkansas law. Section (b)(2) is revised from FRCP 30(b)(2). The latter, in subpart (A) refers to one who is bound on a voyage at sea whereas this rule is applicable to any person leaving the state or country. There was no comparable provision under prior Arkansas law and this should resolve the question of when an emergency or rush deposition could be taken.

4. Rule 30(b)(3) is identical to FRCP 30(b)(3). Similar language was found in superseded Ark. Stat. Ann. § 28-352(a) (Repl. 1962).

5. Section 30(b)(4) is identical to FRCP 30(b)(4). Under this provision, the court has the discretion to order that a deposition may be taken by other than stenographic means. Under proper safeguards, a deposition may be taken by photographic-sound devices. Carson v. Burlington Northern, Inc., 52 F. R. D. (D.C. Neb., 1971 ). Superseded Ark. Stat. Ann. § 28-352(c) (Repl. 1962), permitted the parties to agree on some form or method of taking a deposition other than stenographically. Where proper safeguards are made, videotaped depositions are certainly proper.

6. Section 30(b)(5) closely follows FRCP 30(b)(5) and establishes a method whereby a party can request that certain documents and tangible items may be brought to the deposition. The procedure described in Rule 34 is applicable and the deponent may refuse to produce the requested documents in which event the moving party is required to present the matter to the court for a determination of whether the documents or items should have been produced. This rule also permits the court to shorten or extend the time limit set by Rule 34 for responding to the request. To such extent, this rule differs from the Federal Rule.

7. With exception of minor wording changes, Section (c) is identical to FRCP 30(c) and substantially the same as superseded Ark. Stat. Ann. § 28-352(c) (Repl. 1962).

8. Section (d) is identical to FRCP 30(d) and substantially follows superseded Ark. Stat. Ann. § 28-352(e) (Repl. 1962).

9. Section (e) is identical to Section (e) of the Federal Rule and follows closely superseded Ark. Stat. Ann. § 28-352(e). Under this and the Federal Rule, if the deponent has not signed the deposition within 30 days of its submission to him, the officer is directed to sign the deposition and give the reason for the deponent’s failure or refusal to sign the deposition.

10. Section 30(f)(1) is identical to FRCP 30(f)(1). Section (f)(2) is, however, reworded from the Federal Rule to delete the requirement that the deposition be filed.

11. Section (g) is identical to FRCP 30(g) and is also substantially the same as superseded Ark. Stat. Ann. § 28-352(g) (Repl. 1962).

Additions to Reporter’s Notes, 1984 Amendments: Rule 30(f) is amended to remove references to the filing requirement which no longer exists in view of the change to Rule 5(c). The provision for optional filing as a means of giving access to the deposition to multiple parties remains, and the provision for notice of filing formerly found in Rule 30(f)(3) is contained in Rule 30(f)(2).

Addition to Reporter’s Note, 1986 Amendment: New subsection (b)(7) is based upon the corresponding federal rule. Although depositions by telephone have been available by stipulation under Rule 29, this subsection authorizes that method by order of the court as well. The second sentence of the new subsection, under which the telephone deposition is deemed “taken” at the place where the witness is to answer the questions (rather than the place where the questions are propounded), is necessary as a definitional provision in light of other rules involving the place of a deposition. See Rules 37(a)(1), 37(b)(1), and 45(d).

Addition to Reporter’s Notes, 1991 Amendment: Under subdivision (c), “[e]vidence objected to shall be taken subject to the objections.” Thus, it is generally not proper for a lawyer to instruct a deponent to refuse to answer a question. The 1991 amendment expressly states that such an instruction is impermissible absent exceptional circumstances or a reasonable, good faith assertion of a privilege. In light of the amendment, a contention that the question seeks irrelevant information beyond the scope of discovery under Rule 26(b)(1) is not a basis for instructing the deponent not to answer, unless exceptional circumstances – such as harassment or irrelevant questions that unnecessarily touch on sensitive areas – are present. The 1991 amendment is consistent with case law applying Federal Rule 30(c). See, e.g., Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890 (7th Cir. 1981); International Union of Electrical, Radio & Machine Workers v. Westinghouse Elec. Corp., 91 F.R.D. 277 (D.D.C. 1981 ); Preyer v. United States Lines, Inc., 64 F.R.D. 430 (E.D. Pa. 1973 ).

Addition to Reporter’s Notes, 1997 Amendment: The changes that have been made in subdivisions (b)-(f) of this rule track the 1993 amendments to Federal Rule 30 and are designed in part to take into account the use of video and other recording methods. Provisions in the federal rule limiting the number of depositions were not adopted. The last sentence of subdivision (b)(2), which dealt with use of the deposition of a party unable to obtain counsel, has been deleted, and this matter is now covered by Rule 32(a)(3). The primary change in subdivision (b) is that parties will be authorized to record deposition testimony by nonstenographic means without first having to obtain permission of the court or agreement from other counsel. Under paragraph (3), the party taking the deposition has the choice of the method of recording. Objections to nonstenographic recording of a deposition, when warranted by the circumstances, can be presented to the court by motion pursuant to Rule 26(c). Other parties may arrange, at their own expense, for the recording of a deposition by a mens in addition to the method designated by the person noticing the deposition. A party choosing to record a deposition only by videotape or audiotape should understand that a transcript will be required if the deposition is later to be offered as evidence at trial under amended Rule 32(c) or on a dispositive motion under Rule 56. Revised paragraph (4) of subdivision (b) requires that all depositions be recorded by an officer designated or appointed under Rule 28 and contains special provisions designed to provide basic safeguards to assure the utility and integrity of recordings taken other than stenographically. Paragraph (7) has been amended to allow the taking of a deposition not only by telephone but also by other remote electronic means, such as satellite television, when agreed to by the parties or authorized by the court. Minor changes have been made in subdivision (c). First, the reference to Rule 43(b) has been replaced with a reference to the Arkansas Rules of Evidence. The examination and cross-examination of a deponent are governed by those rules, with the exception of Rule 103, which deals with evidentiary rulings. Second, subdivision (c) has been revised to reflect the changes made in subdivision (b) regarding the method by which a deposition is to be recorded. Finally, the provision that dealt with instructing the deponent not to answer has been deleted and moved to subdivision (d)(1). Unlike its federal counterpart, subdivision (c) does not contain an exception from Rule 615 of the Rules of Evidence. By virtue of this exception in the federal rule, other potential witnesses are not automatically excluded from a deposition at a party’s request, although the court can order their exclusion via a protective order. Because such an exception is not included in revised subdivision (c), depositions in Arkansas will continue to be subject to Rule 615. The first sentence of subdivision (d)(1) provides that any objections during a deposition must be made concisely and in a non-argumentative and non-suggestive manner. Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the witness should respond. While objections may, under the revised rule, be made during a deposition, they should ordinarily be limited to those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on grounds that might be immediately obviated or cured, such as the form of a question or the responsiveness of an answer. Under Rule 32(b), other objections can, even without the so-called “usual stipulation” preserving objections, be raised for the first time at trial and therefore should be kept to a minimum during a deposition. The second sentence of subdivision (d)(1) addresses an even more disruptive practice, i.e., instructing the deponent not to answer a question. This provision previously appeared, in slightly different form, in subdivision (c), having been added in 1991. The former language has been retained as to “reasonable, good faith claims of privilege,” but new grounds based on the federal rule – to enforce a limitation on evidence imposed by the court and to present a motion under what is now designated as paragraph (3) – have been added. Paragraph (2) of subdivision (d) dispels any doubts regarding the power of the court to limit, by order, the length of a deposition. This provision also expressly authorizes the court to impose the cost resulting from obstructive tactics that unreasonably prolong a deposition on the person engaged in such obstruction. This sanction may be imposed on a non-party witness as well as a party or attorney. Unlike the federal rule, paragraph (2) does not empower a trial court to establish limits on deposition length by local rule, since such rules are not permissible in Arkansas. Paragraph (3) authorizes appropriate sanctions not only when a deposition is unreasonably prolonged, but also when an attorney engages in other practices that frustrate the fair examination of the deponent, such as making improper objections or giving directions not to answer prohibited by paragraph (1). In general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer. The making of an excessive number of objections may itself constitute sanctionable conduct. Various changes have been made in subdivision (e) to reduce problems sometimes encountered when depositions are taken stenographically. Reporters frequently have difficulties obtaining signatures from deponents and the return of depositions. Under the revision, pre-filing review by the deponent is required only if requested before the deposition is completed. If review is requested, the deponent will be allowed 30 days to review the transcript or recording and to indicate any changes in form or substance. Signature of the deponent will be required only if review is requested and changes are made. Subdivision (f) has been revised to reflect changes made in subdivision (b) as to the methods by which a deposition may be taken. If the court does not order the deposition to be filed pursuant to Rule 5(c), the reporter can transmit the transcript or recording to the attorney taking the deposition or ordering the transcript or record, who then becomes custodian for the court of the original record of the deposition. Pursuant to paragraph (2), as under the prior rule, any other party is entitled to secure a copy of the deposition from the officer designated to take it. New language makes clear that the officer must retain a copy of the record or the stenographic notes, unless otherwise ordered by the court or agreed by the parties. The retention period is the same as that specified for transcripts of court proceedings in the record retention schedule for official court reporters in Arkansas.

Addition to Reporter’s Notes, 1998 Amendment: As amended in 1997, Rule 30(f)(1) provided that the officer taking the deposition “shall securely seal” it in an envelope or package and either file it with the clerk, if so ordered, or send it to the attorney who arranged for the deposition. The term “seal” could be read as implying that the attorney who received the deposition was obligated to keep it sealed. Such a result was not intended, and Rule 30(f)(1) has been amended to require that the officer “place” the deposition in an envelope. The obligation that the attorney “store it under conditions that will protect it against loss, destruction, tampering, or deterioration” remains unchanged.

Addition to Reporter’s Notes, 2003 Amendment: The penultimate sentence of subdivision (a) has been rewritten to expressly provide that a subpoena is not mandatory if the deponent is a party or a person designated under subdivision (b)(6) to testify on behalf of a party. Notice of the deposition is the sole requirement in these circumstances. -Rule 30 of the Federal Rules of Civil Procedure does not explicitly state that a subpoena is unnecessary when the deponent is a party. Under Fed. R. Civ. P. 37(d), however, sanctions may be imposed against a party or person designated to testify on behalf of a party who does not appear at a deposition “after being served with a proper notice.” On the basis of this language, which also appears in the corresponding Arkansas rule, the federal courts “have reasoned that notice alone, without subpoena, is sufficient.” 8A Wright, Miller & Marcus, Federal Practice & Procedure 2107 (1994).

Addition to Reporter’s Notes, 2005 Amendments: Rule 30(d) has been amended and its subsections renumbered. For many years, Arkansas Rule 30 has been substantially similar to Federal Rule 30. The 2005 amendments to Rule 30(d) track changes made in 2000 to the Federal Rule and clarify the terms about behavior during depositions. The amendments confirm that the Rule’s limitations extend beyond parties to all persons present at a deposition. They also clarify when a privilege may be asserted against a question. Former subsection (2) has been divided into new subsections (2) and (3), and former (3) has been renumbered as (4). See generally, Advisory Committee Note, 2000 Amendments to FRCP 30(d). The Federal Rule’s presumptive limitation on the duration of any deposition to one seven-hour day has not been incorporated into the Arkansas Rule.

Addition to Reporter’s Notes, 2011 Amendment: Subdivision (f)(2) is revised to clarify that a party taking a deposition is not obligated to provide the opposing party or parties a copy of any sound or sound and video recording of the deposition unless no written transcript was made. Since former subdivision (f)(2) required that the party taking the deposition provide the opposing party a copy of the deposition (if multiple parties, to file a copy with the clerk for use by all parties), the rule could have been read as requiring the party taking the deposition to incur the additional expense of providing a copy of the nonstenographic sound or sound and video recording in addition to the written transcript. Under the amendment, a party taking a deposition only by sound or sound and video recording is still obligated to provide the opposing party with a copy of the deposition or, in a case involving multiple parties to file a copy for use of all opposing parties.