Note from the reporter of decisions: The order amending Rule 30, Alabama Rules of Civil Procedure, effective August 1, 2004, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.

Committee Comments on 1973 Adoption

Subdivision (a). This section deals with when a deposition may be taken and sets forth procedure for depositions shortly after commencement of the action. See Tit. 7, § 474(1), Code 1940, wherein depositions by plaintiff within 30 days of commencement of the action were permitted upon leave of court. Certain situations for early depositions without leave are provided for in Rule 30(a), but deponent has certain protection under Rule 30(b)(2), such as the inadmissibility of the deposition if he was unable to retain counsel for the deposition.

Subdivision (b). This is a mixed bag of procedural requirements. Rule 30(b)(1) is similar to Tit. 7, § 474(7), Code 1940, and requires “reasonable notice” to other parties to the action. It further requires notice to other parties as to the contents of a subpoena duces tecum. This is a departure in that present Alabama practice does not permit the use of a subpoena duces tecum in conjunction with the deposition of a nonparty under Tit. 7, § 474(1), Code 1940. See Ex parte Thackston, 275 Ala. 424, 155 So.2d 526 (1963).

Rule 30(b)(2). See Note 1 above dealing with early depositions without leave of court. This is broader than formerly available under Tit. 7, § 474(1), Code 1940.

Rule 30(b)(3). This section relates only to the date upon which the deposition is to commence. This compares favorably to the last sentence of Tit. 7, § 474(7), Code 1940.

Rule 30(b)(4). Propriety of less expensive procedures in some instances is recognized but, since inaccuracy may result, a court order protecting the parties is required. Further, videotape may be attempted as a method of recording by “other than stenographic means.”

Rule 30(b)(5). As is true under Alabama practice, a subpoena duces tecum is not available as to a party Section 12-21-2, Code of Ala., is limited to persons, not parties. Note, however, that this paragraph differs from the federal rule which incorporates Rule 34 without making clear what time limits are intended. The provisions of Rule 30(b)(5) are intended to operate within the requirement of reasonable notice set forth in Rule 30(b)(1). This subparagraph makes clear that production of documents and other things needed as a basis for the examination of a party may be requested in the notice of taking of a deposition of a party, just as a subpoena duces tecum under Rule 45(d) may be used for a nonparty deponent. Rule 34, rather than this rule, should be used where the primary purpose is inspection of the documents rather than the examination of the witness.

Rule 30(b)(6). This provision gives a party the option of designating the subject matter upon which he seeks discovery in the notice of deposition of an organizational party. In that event, the organizational party, such as a corporation, must designate managerial level employees to testify on the subject matter in the notice. Employees below the managerial level may be designated if they consent to testify This burden is analogous to the duty already incumbent upon an organizational party in answering of interrogatories. See Tit. 7, § 480, Code 1940. When a nonparty organization is served with a subpoena containing a subject matter description, the subpoena must advise the organization of its duty to designate. Of course, the subject matter designation is not required in discovery from organizations and regular deposition procedure is available when the natural person having the information is known to the party seeking discovery

Subdivision (c). Examination and Cross-Examination. The first sentence, permitting direct and cross-examination is comparable to Tit. 7, § 474(3), Code 1940. The remainder is similar to Tit. 7, § 474(11), Code 1940. One change lies in the former provision for transcription unless all parties agree otherwise. Now, transcription occurs when one party requests it. The fact of the request could become relevant when the court taxes costs of transcription of a useless deposition.

Subdivision (d). Limiting or Terminating a Deposition. Similar procedure was available under Tit. 7, § 474(10), Code 1940.

Subdivision (e). Submission to Witnesses. This is similar to Tit. 7, § 474(13), Code 1940. One difference is found in provision for filing of an unsigned deposition by a reporter, when the witness has had 30 days in which to sign and has not yet done so. On motion, justifiable refusal to sign may be shown.

Subdivision (f). Certification and Filing. Part of this section is similar to Tit. 7, § 474(14), Code 1940. In addition, flexible procedure is created for substitution of originals on deposition exhibits. This subparagraph differs in form only from federal Rule 30(f)(1). Problems with the terminology in existing Rule 30(f)(1) are discussed at 8 Wright & Miller, Federal Practice and Procedure, § 2214(1970). The provisions of this rule are intended to eliminate the ambiguities contained in the present federal rule.

Subdivision (g). Failure to Attend. Penalties are provided when a party relies on the setting of a deposition and is not notified of its postponement or cancellation. This section is quite similar to Tit. 7, § 474(15), Code 1940.

The rule does not state that mere notice to another party’s attorney without a subpoena to the other party, is sufficient to require that party’s attendance at his deposition. However, Rule 5(b) authorizes service on the party through his attorney and Rule 37(d)(1) authorizes sanctions when a party fails to appear at his deposition “after being served with a proper notice.” Consequently, notice to the attorney rather than subpoena to the party is the proper method of securing the attendance of a party at his deposition.

Finally, the rule does not speak to the unsealing of depositions. Rule 30(f)(1) requires the officer to seal the deposition. Unless a court, through protective order, requires otherwise, depositions should be immediately opened by the clerk at the time of filing. See Burnham Chem. Co. v. Borax Consolidated, Ltd., 7 F.R.D. 341 (D.C.Cal. 1947 ); 8 Wright & Miller, Federal Practice and Procedure, Civil, § 2119(1970).

Committee Comments to October 1, 1995, Amendment to Rule 30

Subdivision (b). This amendment conforms subdivision (b) to F.R.Civ.P. 30(b) as it existed before the 1993 amendment to F.R.Civ.P 30(b). It differs substantively from the former Ala.R.Civ.P. 30(b)(4) by including language calculated to encourage parties to agree to the electronic recording of depositions so that the usefulness of this alternative may be evaluated. It also incorporates a new paragraph dealing with depositions by telephone on court order. See Rule 30(b)(7).

Subdivision (f). This amendment conforms subdivision (f) to F.R.Civ.P. 30(f) as it existed before the 1993 amendment to F.R.Civ.P 30(b). It allows for not filing a deposition. It also rewrites the portion of the former rule dealing with substitution of original documents for copies so that a witness may retain an original document. This improvement was added to F.R.Civ.P 30(f) in 1980. The former Ala.R.Civ.P. 30(f), drafted in 1972, was drafted to achieve the same result because the earlier federal rule had been criticized for its failure to deal clearly with this point. Now that the federal rule has been clarified, the committee has replaced the text of the former Ala.R.Civ.P. 30(f) with the language from the federal rule for the sake of uniformity.

Committee Comments to January 1, 1996, Amendment to Rule 30(c)

At the end of the first sentence of subdivision (c), the reference to “Rule 43(b) ” is replaced by the reference to “the Alabama Rules of Evidence.” This change was made for the reasons stated in the 1972 committee comments to F.R.Civ.P. 30(c):

“Existing Rule 43(b), which is to be abrogated, deals with the use of leading questions, the calling, interrogation, impeachment, and scope of examination of adverse parties, officers, etc. These topics are dealt with in the Rules of Evidence. Moreover, many pertinent topics included in the Rules of Evidence are not mentioned in Rule 43(b), e.g., privilege. A reference to the Rules of Evidence generally is therefore made in subdivision (c) of Rule 30.”

Because Rule 103, Ala.R.Evid., addresses trial procedures (e.g., timely objections and offers of proof) that are not necessarily applicable to pretrial discovery and because the comments to Rule 615, Ala.R.Evid., make it clear that Rule 615 is intended to apply only at trials and not to pretrial discovery, a provision was added stating specifically that these rules are not applicable to pretrial discovery.

Committee Comments to Amendment to Rule 30 Effective August 1, 2004

In Ex parte Wisconsin Physicians Service Insurance, Inc., 800 So. 2d 588, 595 (Ala. 2001), the Supreme Court “request[edl the Standing Advisory Committee on Rules of Civil Procedure to consider proposing to this Court a rule setting standard to govern videotaped depositions; such a rule should address issue such as cost, methodology and justification.” This amendment does that.

The provisions in the amended rule addressing the cost of depositions recorded on videotape or by other equivalent technology are self-explanatory; the committee, however, cautions the court to guard against one party’s imposing undue expenses on another for obtaining copies of the videotape or other recording. The amendment reverses the earlier requirement of the rule that “[t]he parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means.” Now, although the noticing party must state why videotaping “is necessary or desirable,” the norm will be that a deposition noticed for videotaping will proceed as noticed unless an objecting party moves for and obtains an order to the contrary.

Regarding methodology, the rules state only that “[any such deposition be conducted in a manner to replicate, to the extent feasible, the presentation of evidence at trial,” and that the noticing party “include [in the notice] other provisions to assure that the recorded testimony will be accurate and trustworthy and that the witness will be treated fairly.” The concept of “fair treatment” is dependent upon appropriate methodology. The committee recommends the following: Unless physically incapacitated, the witness should be seated at a table or in a witness box, except when reviewing or presenting demonstrative materials for which a change in position is needed. To the extent practicable, the deposition should be conducted in a neutral setting, against a solid background, with only such lighting as is required for accurate video recording. Lighting, camera angle, lens setting, and field of view should be changed only as necessary to record accurately the natural body movements of the witness or to portray exhibits and materials used during the deposition. Unless circumstances require otherwise, the camera angle should be level with the witness’s head. Sound levels should be altered only as necessary to record satisfactorily the voices of counsel and the witness. Eating or smoking or other use of tobacco products by witnesses or counsel during the deposition should not be permitted. Absent a court order to the contrary; at the option of the witness, the length of each session on of a videotaped deposition may be limited to five (5) hours per day, excluding breaks and objections. Each witness, attorney, and other person attending the deposition should be identified on camera at the beginning of the deposition. Thereafter, only the deponent and demonstrative material used during the deposition should be shown on the videotape, unless any participant desires that an additional camera be focused on the attorney asking the questions, in which case that should be done. The participant desiring an additional camera should bear the cost of providing the additional camera. The court shall have the discretion as to whether and how the second videotape may be used. Any expense associated with using a second camera should not be taxed as costs.

Committee Comments to Amendment to Rule 30(b) Effective November 23, 2020

The amendment to Rule 30(b)(7) explicitly permits, under specified circumstances, a deposition to be taken by use of audio-video communication technology. Subdivision (8) is added to allow the attending court reporter to swear in a witness, even if in a different location, by use of such technology.