Annotation I. General Consideration. Law reviews. For article, “Depositions of Parties on Oral Interrogatories, Within the State of Colorado”, see 10 Dicta 256 (1933). For article, “Use of Summary Judgments and the Discovery Procedure”, see 24 Dicta 193 (1947). For article, “Notes on Proposed Amendments to Colorado Rules of Civil Procedure”, see 27 Dicta 165 (1950). For article, “Amendments to the Colorado Rules of Civil Procedure”, see 28 Dicta 242 (1951). For article, “Depositions and Discovery, Rules 26 to 37 “, see 28 Dicta 375 (1951). For article, “Depositions and Discovery: Rules 26-37 “, see 23 Rocky Mt. L. Rev. 562 (1951). For article, “One Year Review of Civil Procedure and Appeals”, see 39 Dicta 133 (1962). For article, “Plaintiff’s Advantageous Use of Discovery, Pre-Trial and Summary Judgment”, see 40 Den. L. Ctr. J. 192 (1963). For article, “A Deposition Primer, Part I: Setting Up the Deposition”, see 11 Colo. Law. 938 (1982). For article, “A Deposition Primer, Part II: At the Deposition”, see 11 Colo. Law. 1215 (1982). For article, “Securing the Attendance of a Witness at a Deposition”, see 15 Colo. Law. 2000 (1986). For article, “Alternative Depositions: Practice and Procedure”, see 19 Colo. Law. 57 (1990). For formal opinion of the Colorado Bar Association on Use of Subpoenas in Civil Proceedings, see 19 Colo. Law. 1556 (1990). C.R.C.P. 26 to 37 must be construed together along with the requirement that plaintiff establish a prima facie case for punitive damages, as a condition precedent to the plaintiff’s right to discovery of defendant’s financial information. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Rules of civil procedure sanction use of all discovery methods and the frequency of use of these methods should not be limited unless there is a showing of good cause based on the particular circumstances of the case. Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981). Civil discovery rules inapplicable to release hearings. Based on §§ 16-8-115 to 16-8-117 and on the special nonadversary nature of a release inquiry, the participants in release proceedings do not have the broad right of discovery as provided in the rules of civil procedure. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). Under C.R.C.P. 81(a), the procedure in release hearings under § 16-8-115 is so inconsistent and in conflict with the rules of civil procedure as to make civil discovery rules inapplicable to release hearings. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). It is in the trial court’s discretion whether a video deposition will be ordered absent agreement between the parties. Such a deposition, while it may be desirable under certain circumstances, is a luxury not a necessity. Cherry Creek Sch. Dist. v. Voelker, 859 P.2d 805 (Colo. 1993). When choosing a subsection (b)(6) designee, companies have a duty to make a conscientious, good-faith effort to designate knowledgeable persons and to prepare them to fully and unevasively answer questions about the designated subject matter. The company should, if necessary, prepare deponents by having them review prior fact witness deposition testimony as well as documents and deposition exhibits. D.R. Horton, Inc. v. D&S Landscaping, LLC, 215 P.3d 1163 (Colo. App. 2008). Allowing a company to designate a witness under subsection (b)(6) who is unprepared or not knowledgeable would simply defeat the purpose of the rule and sandbag the opposition. D.R. Horton, Inc. v. D&S Landscaping, LLC, 215 P.3d 1163 (Colo. App. 2008). Where a corporation designates a deponent pursuant to subsection (b)(6) who is unable to answer all the questions specified in the notice, a court may issue sanctions for failure to appear under C.R.C.P. 37. D.R. Horton, Inc. v. D&S Landscaping, LLC, 215 P.3d 1163 (Colo. App. 2008). Nothing in the rule or its interpretation suggests that persons who are designated and testify under subsection (b)(6) will not bind their corporate principal. Nothing in the rule precludes a principal from offering contrary or clarifying evidence where its designee has made an error or has no knowledge of a matter. D.R. Horton, Inc. v. D&S Landscaping, LLC, 215 P.3d 1163 (Colo. App. 2008). A corporation should be excused from sanctions and granted a protective order where it had no means available to prepare a subsection (b)(6) designee. D.R. Horton, Inc. v. D&S Landscaping, LLC, 215 P.3d 1163 (Colo. App. 2008). Not being listed under section (b)(6) does not disqualify a person from testifying, but rather being listed under section (b)(6) mandates that the witness’s testimony include certain subject matter and knowledge. Where county produced undesignated witnesses who were knowledgeable both as to the facts regarding the county and as to those at issue at trial, and defendant was aware of the witnesses and deposed them, trial court did not abuse its discretion in allowing their testimony. Camp Bird Colo., Inc. v. Bd. of County Comm’rs of Ouray, 215 P.3d 1277 (Colo. App. 2009). Applied in Seymour v. District Court, 196 Colo. 102, 581 P.2d 302 (1978); Peoples Natural Gas Div. v. Pub. Utils. Comm’n, 626 P.2d 159 (Colo. 1981); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Falzon v. Home Ins. Co., 661 P.2d 696 (Colo. App. 1982); Black ex rel. Bayless v. Cullar, 665 P.2d 1029 (Colo. App. 1983). II. When May be Taken. While this rule allows the taking of the deposition of “any person”, a court in a “habeas corpus” matter may properly restrict the taking of a deposition where its use relates not to the narrow issues of habeas corpus, but to broad range issues not relevant in a habeas corpus determination. Hithe v. Nelson, 172 Colo. 179, 471 P.2d 596 (1970). III. Notice Law reviews. For article, “In Defense of H.B. 109-Re-serving Notice Before a Witness’s Deposition May Be Taken”, see 22 Dicta 152 (1945). Section (b)(4) is identical to its federal counterpart F.R.C.P. 30(b)(4). Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981). Purpose of section (b)(4) is to facilitate less expensive procedures as an alternative to the high cost of stenographic recording. Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981). Motion and notice for which provision is made in this rule must be made and served prior to the time specified in the notice for the taking of the deposition. Reserve Life Ins. Co. v. District Court, 126 Colo. 217, 247 P.2d 903 (1952). There was no “reasonable notice” within the meaning of this rule where the record disclosed that the party was given three days notice that the depositions were to be taken, the notice was served in Colorado, and the depositions were taken in Los Angeles. Nielsen v. Nielsen, 111 Colo. 344, 141 P.2d 415 (1943). If, for good cause, a deposition should be taken in some place other than that mentioned in the notice, this matter should be called to the attention of the trial court by a motion filed and service thereof seasonably made on opposing counsel; otherwise, such objection is waived, and the place designated in the notice is definitely and finally fixed. Reserve Life Ins. Co. v. District Court, 126 Colo. 217, 247 P.2d 903 (1952). Service of notice to take deposition on a party’s attorney is sufficient notice pursuant to C.R.C.P. 5(b)(1). Reserve Life Ins. Co. v. District Court, 126 Colo. 217, 247 P.2d 903 (1952). A party is not entitled to a subpoena nor to a per diem allowance or mileage when he is noticed to appear for the taking of his deposition. Reserve Life Ins. Co. v. District Court, 126 Colo. 217, 247 P.2d 903 (1952). Court has discretion in determining assessment of stenographic expense as cost. There is no provision authorizing the assessment, as costs, of stenographic expense incurred in the taking of a deposition for purposes of discovery, but if the testimony of the person whose deposition is taken is not available at the trial, and the deposition is offered in lieu thereof, then the court would have discretion in determining whether the expense of procuring the deposition should be assessed as costs against the losing party. Morris v. Redak, 124 Colo. 27, 234 P.2d 908 (1951). Governmental officials of foreign state cannot be compelled to appear in Colorado to take depositions. Where the attorney general and tax commissioner of another state had been ordered to appear in Colorado for the purpose of taking depositions, the court could not compel them to so appear, and this fact is true even though the foreign state had brought the action in which defendant sought these depositions, inasmuch as no state court or government has authority beyond its own borders, each state being sovereign as to its own territory and those residing therein; such recognition as is given Colorado laws or court orders by other states must be based solely upon full faith and credit, comity, contract due to uniform acts, or compact. Minnesota ex rel. Minnesota Att’y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). Showing of indigency unnecessary for application of section (b)(4) to inexpensive mode of deposition discovery. Application of section (b)(4) of this rule to an inexpensive mode of deposition discovery should not be conditioned on a showing of indigency, a showing of financial need, or economic disparity between the parties. Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981). Exercise of discretion in ruling on discovery motion for tape recorded depositions should be limited to considerations of accuracy and trustworthiness with respect to the procedures and conditions to be followed in the recording, transcription, and filing of the depositions. Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981). Trial judge may properly deny motion for tape recorded depositions where the objecting party shows that there exists a potential for abuse or harassment of a witness or party or where the objecting party otherwise establishes a bona fide claim for protective orders under C.R.C.P. 26(c). Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981). IV. Motion to Terminate or Limit. The taking of a deposition is not precluded by an application for writ of prohibition where an order to show cause is issued pursuant thereto by the supreme court; rather, only proceedings in the trial court are suspended by such an order, and not those in preparation of trial. And where the case is still pending and undetermined, an application for a writ of prohibition against the taking of a deposition would be denied as premature. Cox v. District Court, 129 Colo. 99, 267 P.2d 656 (1954). Party desiring to protect trade secrets entitled to protective order. Taken together, section (d) of this rule and C.R.C.P. 26 establish that a party desiring to protect trade secrets is entitled to a protective order upon a showing of good cause. Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974). V. Submission to Witness. Annotator’s note. Since section (e) of this rule is similar to § 378 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing this section have been included in the annotations to this rule. Purpose of section (e), which requires submission of the deposition to the witness for examination, correction, and signature, is to provide verification of the deposition’s content in order that the writing may be introduced as evidence of the witness’s own words. Transamerica Ins. Co. v. Pueblo Gas & Fuel Co., 33 Colo. App. 92, 519 P.2d 1201 (1973). Object of reading deposition to witness is to give opportunity to correct. The object of the requirement that the interrogatories and answers submitted to the witness on the taking of his deposition should be first carefully read to him before he signed is that the witness might know what the scrivener had written down, and he might, before his deposition is complete, have an opportunity to correct any errors or inaccuracies of statement which might have occurred. Cheney v. Woodworth, 13 Colo. App. 176, 56 P. 979 (1899). The requirement that deposition be signed by witness can be waived by stipulation of counsel. Chipley v. Green, 7 Colo. App. 25, 42 P. 493 (1895). Where parties stipulated with respect to the taking of a deposition that “the caption and all formalities are expressly waived”, it was held that an irregularity as to the signature was waived by this stipulation. Chipley v. Green, 7 Colo. App. 25, 42 P. 493 (1895). Section (e) inapplicable. Where proof of a contradictory statement was elicited from the mouth of the witness and not by introduction of the deposition into evidence, the safeguards for accuracy of the deposition as evidence, which are embodied in section (e), were inapplicable. Transamerica Ins. Co. v. Pueblo Gas & Fuel Co., 33 Colo. App. 92, 519 P.2d 1201 (1973). VI. Certification and Filing. This rule sets forth the mechanics applicable to certifying and filing depositions. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961). After correction of the deposition and after it is signed, or following a refusal to sign it, the deposition is to be delivered to the officer who seals it promptly and files it with the court in which the action is pending. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961). Officer’s certificate is not required to state that deposition was “carefully” read to witness before signing. The requirement that in taking depositions the interrogatories and answers should be carefully read to the witness before signing does not require the certificate of the officer to state that they were “carefully” read to the witness before signing. A certificate that certified simply that the deposition was read to the witness before signing is sufficient, as it would be presumed that it was read with that care required. Cheney v. Woodworth, 13 Colo. App. 176, 56 P. 979 (1899) (decided under § 378 of the former code of civil procedure, which was replaced by rules of civil procedure in 1941). Sham affidavit doctrine permits a court under certain circumstances to disregard an affidavit submitted by a party in response to a summary judgment motion where that affidavit contradicts the party’s previous sworn deposition testimony. Luttgen v. Fischer, 107 P.3d 1152 (Colo. App. 2005). Contradictory affidavits should be considered in light of totality of the circumstances test. Affidavit that directly contradicts affiant’s own earlier deposition testimony can be rejected as sham affidavit only if it fails to include an explanation for the contradiction that could be found credible by a reasonable jury. This determination cannot be limited to any set of factors, but must be considered in light of the totality of the circumstances, and such determination is a matter of law to be reviewed de novo. Andersen v. Lindenbaum, 160 P.3d 237 (Colo. 2007). Where deposition was taken but not subscribed, certified, or filed pursuant to this rule, and was for that reason suppressed by the trial court notwithstanding agreement of counsel that it might be admitted for a limited purpose, such ruling, while erroneous, was not prejudicial. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961).

For service of process, see C.R.C.P. 4; for subpoena for taking depositions, see C.R.C.P. 45(d); for sanctions for failing to make disclosure or cooperate in discovery, see C.R.C.P. 37; for production of documents and things, see C.R.C.P. 34; for protective orders, see C.R.C.P. 26(c); for award of expenses of motion, see C.R.C.P. 37(a)(4); for effect of errors and irregularities in depositions concerning completion and return thereof, see C.R.C.P. 32(d)(4).