Arizona

Family Law

Family Law

Rule 57 – Depositions by Oral Examination

(a)When a Deposition May Be Taken.

(1)Depositions Permitted. A party may depose (A) any party; (B) any party’s current spouse; and (C) any person disclosed as an expert witness under Rule 49(j). A party also may depose any document custodian to secure production of documents and establish evidentiary foundation. Unless all parties agree or the court orders otherwise for good cause, a party may not depose any other person or depose a person who has already been deposed under the current petition. A party may not unreasonably withhold its agreement to additional depositions under this rule.
(2)Depositions Earlier Than 30 Days After Serving the Summons and Petition. A party must obtain leave of court to take a deposition earlier than 30 days after serving the summons and petition on any other party unless:

(A) unless otherwise agreed in writing; or
(B) a party certifies in the deposition notice, with supporting facts, that the deponent is expected to leave Arizona and will be unavailable for deposition after expiration of the 30-day period.
(3)Incarcerated Deponents. Subject to Rule 57(a)(1), a party may depose an incarcerated person only by agreement of the person’s custodian or by leave of court on such terms as the court orders.
(4)Attendance of a Party. A party’s attendance at a deposition is required without service of a subpoena.
(5)Compelling Attendance of Non-Party Deponent. A party may compel a nonparty deponent’s attendance by serving a subpoena under Rule 52.
(b)Notice of a Deposition; Method of Recording; Deposition by Remote Means; Deposition of an Entity; Other Formal Requirements.

(1)Notice Generally. Unless all parties agree or the court orders otherwise, a party who wants to depose a person must serve written notice to every other party at least 10 days before the date of the deposition. The notice must state the date, time, and place of the deposition and, if known, the deponent’s name and address. If the deponent’s name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.
(2)Producing Materials. If a subpoena for documents, electronically stored information, or tangible things has been or will be served on the deponent, the materials designated for production in the subpoena must be listed in the deposition notice or in an attachment to the notice. A deposition notice to a deponent who is a party to the action may be accompanied by a separate request under Rule 62 to produce documents, electronically stored information, or tangible things at the deposition. The procedures under Rule 62 apply to any such request.
(3)Method of Recording.

(A)Permitted Methods. Unless all parties agree or the court orders otherwise, testimony under oath or affirmation must be recorded by a certified reporter and in addition may be recorded by audio or audiovisual means.
(B)Notice of Method of Recording. With at least two days’ written notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to a certified reporter. Unless the parties agree or the court orders otherwise, that party bears the expense of the additional recording.
(C)Transcription. Any party may request that the testimony be transcribed. If the testimony is transcribed, the party who originally noticed the deposition is responsible for the cost of the original transcript. Any other party may, at its expense, arrange to receive a certified copy of the transcript.
(4)By Remote Means. The parties may agree, or the court may order that a deposition be taken by telephone or other remote means. The deposition takes place where the deponent answers the questions, but an Arizona certified court reporter may record the testimony in Arizona. If the deponent is not in the officer’s physical presence, the officer may nonetheless place the deponent under oath or affirmation with the same force and effect as if the deponent was in the officer’s physical presence.
(5)Notice or Subpoena Directed to an Entity. In a deposition notice or subpoena, a party may name as the deponent a public or private corporation, a limited liability company, a partnership, an association, a governmental agency, or other entity, and must then describe with reasonable particularity the matters for examination. The named entity must then designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf. If the entity designates more than one person to testify, it must set out the matters on which each designated person will testify. Each designated person must testify about information known or reasonably available to the entity. This subpart does not preclude a deposition by any other procedure allowed by these rules.
(c)Examination and Cross-Examination; Record of the Examination; Objections; Conferences Between Deponent and Counsel.

(1)Examination and Cross-Examination. The examination and cross-examination of a deponent must proceed as they would at trial under the Arizona Rules of Evidence including Rule 615. Parties may not make evidentiary objections, including relevance objections. Any party not present within 30 minutes after the time specified in the notice of deposition waives any objection that the deposition was taken without the party’s presence. After putting the deponent under oath or affirmation, the certified court reporter personally-or a person acting in the presence and under the direction of the officer-must record the testimony by the method(s) designated under Rule 57(b)(3).
(2)Objections. A certified court reporter must note on the record any objection made during the deposition-whether to evidence, to a party’s, deponent’s, or counsel’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition. An objection must be stated concisely, in a nonargumentative manner, and without suggesting an answer to the deponent. Unless requested by the person who asked the question, an objecting person must not specify the defect in the form of a question or answer. Counsel may instruct a deponent not to answer-or a deponent may refuse to answer-only when necessary to preserve a privilege, to enforce a limit ordered by the court, or to present a motion under Rule 57(d)(3). Otherwise, the deponent must answer, and the testimony is taken subject to any objection.
(3)Conferences Between Deponent and Counsel. The deponent and his or her counsel may not engage in continuous and unwarranted conferences off the record during the deposition. Unless necessary to preserve a privilege, the deponent and his or her counsel may not confer off the record while a question is pending.
(d)Duration; Sanctions; Motion to Terminate or Limit.

(1)Duration. Unless the parties agree or the court orders otherwise, a deposition should be of reasonable length, is presumptively limited to 4 hours, and must be completed in a single day. An unreasonable refusal to extend deposition time may result in sanctions.
(2)Sanctions. The court may impose appropriate sanctions-including any order under Rule 65 -against a party or attorney who has engaged in unreasonable, groundless, abusive, or obstructionist conduct in connection with a deposition, or who without good cause terminates or limits a deposition.
(3)Motion to Terminate or Limit.

(A)Grounds. At any time during a deposition, the deponent or a party may terminate or limit the deposition on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. Within 10 days thereafter, the deponent or party must file a motion in the court where the action is pending or the court where the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order. If the person who limits or terminates the deposition fails to file a timely motion, any other party may move to compel the continuation of the deposition and seek sanctions under Rule 65.
(B)Order. The court may order that the deposition be terminated or that its scope and manner be limited as provided in Rule 51(b). If terminated, the deposition may be resumed only by order of the court where the action is pending.
(C)Award of Expenses. Rule 65(a)(4) applies to the award of expenses.
(e) Review by the Deponent; Changes.

(1)Review; Statement of Changes. If requested by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:

(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign and deliver to the certified reporter a statement listing the changes and the reasons for making them.
(2)Officer’s Certificate to Attach Changes. The officer must note in the certificate prescribed by Rule 57(f)(1) whether the officer received a statement of changes from the deponent and, if so, the officer must attach any changes the deponent made during the 30-day period.
(f)Officer’s Certification and Delivery; Documents and Tangible Things; Copies of the Transcript or Recording; Filing.

(1)Certification and Delivery. The officer must certify in writing that the deponent was duly sworn by the officer and that the deposition accurately records the deponent’s testimony. The certificate must accompany the record of the deposition. Unless the court orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked “Deposition of [witness’s name]” and must promptly deliver it to the attorney who arranged for the transcript or recording. The attorney must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.
(2)Documents and Tangible Things.

(A)Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party’s request, be marked for identification and attached to the deposition-and any party may inspect and copy them-but if the person who produced them wants to keep the originals, the person may:

(i) offer copies to be marked, attached to the deposition, and then used as originals-after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or
(ii) give all parties a fair opportunity to inspect and copy the originals after they are marked-in which event the originals may be used as if attached to the deposition.
(B)Order Regarding the Originals. On motion, the court may order that the originals be attached to the deposition until final disposition of the action.
(3)Copies of the Transcript or Recording. Unless the parties agree or the court orders otherwise, the officer must retain the record of a deposition according to the applicable records retention and disposition schedules adopted by the Supreme Court. Upon payment of a reasonable charge, the officer must provide a copy of the transcript or recording to any party or to the deponent.
(g)Failure to Attend a Deposition or Serve a Subpoena; Expenses. A party who attends a noticed deposition in person or by an attorney may recover reasonable expenses for attending, including attorney fees, if the noticing party failed to:

(1) attend and proceed with the deposition; or
(2) serve a subpoena on a nonparty deponent, who did not attend as a result of the lack of service.

Ariz. R. Fam. Law. proc. 57

Added Oct. 19, 2005, effective Jan. 1, 2006. Amended Sept. 5, 2007, effective Jan. 1, 2008; amended effectiveJan. 1, 2019.