TITLE FIVE — DEPOSITION AND DISCOVERY
Rule 23. Depositions Upon Oral Examination
When a Deposition May Be Taken.
Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court, except as Rule 23(1)(b) provides. The attendance of a deponent may be compelled by subpoena as provided in Rule 32.
With Leave. A party shall obtain leave of court, and the court shall grant leave to the extent consistent with Rule 19(2) and Rule 19(3), if the parties have not stipulated to the deposition and:
the deposition would result in more than five (5) depositions being taken under this rule and Rule 24 combined by the plaintiffs, by the defendants, or by the third-party defendants;
the deponent has already been deposed in the action; or
the deponent is held in custody, whether under a sentencing timer, an arrest timer, or an order of pre-trial detention under 6 R. Stat. § 131.203, in which case the court shall prescribe the terms upon which the deposition may be taken.
Notice of Examination.
Notice in General. A party desiring to take the deposition of any person upon oral examination shall give not less than twenty-four (24) hours’ written notice to every other party, and not less than forty-eight (48) hours’ written notice where the deponent is not a party. The notice shall state:
the date and time of the deposition, expressed in Coordinated Universal Time;
the place of the deposition, or the voice channel or in-game location at which it will be taken;
the username of each person to be examined, if known, and, if the username is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs;
the method by which the testimony will be recorded; and
the username of the officer before whom the deposition will be taken.
Enlarging or Shortening Time. The court may for cause shown enlarge or shorten the time for taking the deposition, and shall shorten it where necessary to permit the deposition to be taken within the pre-trial period allowed by Rule 6(1).
Producing Documents. If a subpoena duces tecum is to be served upon the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. The notice to a party deponent may be accompanied by a request under Rule 26 for the production of documents, electronically stored information, and tangible things at the taking of the deposition.
Method of Recording.
Ordinary Audio. Any oral deposition may be recorded through normal audio recording, as opposed to a stenographic or audio-visual means. Recording by the audio facilities of the platform in which the deposition is taken satisfies this paragraph.
Additional Methods. With prior notice to the deponent and to every other party, any party may designate another method for recording the testimony in addition to that specified in the original notice, including audio-visual recording. The party designating an additional method bears its expense unless the court orders otherwise.
Transcription. If requested by a party, the testimony shall be transcribed. Any party may arrange to transcribe a deposition at that party’s own expense, and shall furnish a copy of the transcript to the deponent and to every other party upon payment of the reasonable charge for the copy.
Integrity of the Recording. The recording shall be preserved in the form in which it was made. No person shall edit, splice, crop, or otherwise alter a deposition recording, and the appearance or demeanor of the deponent and the attorneys shall not be distorted by recording technique. A party who offers a deposition under Rule 25 shall on request produce the unaltered original recording.
Place; Remote and In-Channel Depositions.
Where Taken. A deposition may be taken in the proceeding communications of the case, in another voice or text channel designated in the notice, at an in-game location, or at any place upon which the parties stipulate.
Remote Means. The parties may stipulate, or the court may on motion order, that a deposition be taken by remote means. A deposition taken by remote means takes place where the deponent answers the questions, and that place governs for the purposes of Rule 19(7)(a) and Rule 26.3(1)(b).
Order to Take in the Proceeding Communications. The court may order that a deposition be taken in the proceeding communications so that the record of the examination is preserved with the record of the case.
Persons Present. Only the deponent, the attorneys of record, the parties, the officer, and any person permitted by stipulation or by order may be present in the place or channel of the deposition. A person who is not so permitted and who is present in the channel shall be removed at the request of any party, and the fact of the person’s presence shall be noted upon the record.
Officer Before Whom Taken.
Who May Take. Unless the parties stipulate otherwise under Rule 22, a deposition shall be taken before a notary public commissioned under 3 R. Stat. §§ 312.001–312.010, before the Clerk of the Superior Court or a deputy clerk as authorized by 3 R. Stat. § 131.104, or before a person appointed by the court to administer oaths and take testimony in the action.
Disqualification. No deposition shall be taken before a person who is a relative, employee, or attorney of any party, who is a relative or employee of an attorney of any party, or who is financially interested in the action, unless the parties stipulate otherwise upon the record.
Duties Before the Deposition. The officer shall begin the deposition with a statement upon the record that includes the officer’s username and the authority under which the officer acts; the date and time of the deposition in Coordinated Universal Time; the case number and title of the action; the deponent’s username; the officer’s administration of the oath or affirmation to the deponent; and the username of every person present in the place or channel of the deposition.
Duties During the Deposition. The officer shall put the deponent on oath or affirmation and shall record the testimony personally, or by a person acting under the officer’s direction and in the officer’s presence. If the deposition is recorded in units, the officer shall repeat at the beginning of each unit the matters stated in Rule 23(5)(c)(i) through (iii).
Duties After the Deposition. At the end of the deposition the officer shall state upon the record that the deposition is complete, the time in Coordinated Universal Time at which it concluded, and any stipulation made by the attorneys concerning custody of the recording, the transcript, or the exhibits.
Deposition of an Organization. A party may, in the notice and in a subpoena, name as the deponent a public or private corporation, a partnership, an association, a business entity, or a governmental agency or department, and shall describe with reasonable particularity the matters upon which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which that person will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization shall confer in good faith about the matters for examination. A subpoena shall advise a non-party organization of its duty to confer and to designate each person who will testify. The persons designated shall testify about information known or reasonably available to the organization. This subdivision does not preclude a deposition by any other procedure allowed by these rules.
Examination and Cross-Examination; Conduct.
Examination. Examination and cross-examination of a deponent may proceed as permitted at trial under the Ridgeway Rules of Evidence, except Rid. R. Evid. 103 and Rid. R. Evid. 615.
Written Questions in Lieu of Attendance. In lieu of participating in the oral examination, a party may serve written questions upon the party taking the deposition, who shall transmit them to the officer. The officer shall propound them to the deponent and record the answers verbatim.
Conduct. No person shall coach, prompt, or suggest an answer to a deponent, whether by speech, by message in any channel, or by any other means. While a question is pending, the deponent shall not confer privately with counsel except for the purpose of determining whether to assert a privilege. No person shall post messages in the channel of a deposition except the participants, and no participant shall use the channel to communicate with the deponent otherwise than upon the record. A violation of this paragraph shall be noted upon the record and is subject to Rule 23(9)(b).
Objections; Instructions Not to Answer.
Objections. An objection at the time of the examination, whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition, shall be noted by the officer upon the record, but the examination shall proceed and the testimony shall be taken subject to the objection. An objection shall be stated concisely and in a non-argumentative and non-suggestive manner.
Instruction Not to Answer. Counsel for a deponent or a party shall not instruct a deponent not to answer except where necessary to assert or preserve a privilege or a protection against disclosure, to enforce a limitation directed by the court or stipulated under Rule 22, or to present a motion under Rule 23(10). Counsel who instructs a deponent not to answer shall state upon the record the ground for the instruction with sufficient particularity to permit the court to rule upon it.
Duration; Sanction.
Duration. Unless the parties stipulate under Rule 22 or the court orders otherwise, a deposition is limited to one day of not more than two (2) hours upon the record, exclusive of recesses. The court shall allow additional time consistent with Rule 19(2) and Rule 19(3) if needed to examine the deponent fairly, or if the deponent, another person, or any other circumstance impedes or delays the examination.
Sanction. The court may impose an appropriate sanction, including the reasonable expenses and attorney’s fees incurred by any party, upon a person who impedes, delays, or frustrates the fair examination of a deponent, or who violates Rule 23(7)(c).
Motion to Terminate or Limit Examination. At any time during the taking of a deposition, upon 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 a party, the court in which the action is pending, or the court where the deposition is being taken, 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 Rule 19(7). Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make the motion, which may be presented to the presiding judge in the proceeding communications. If the order terminates the examination, the deposition shall be resumed thereafter only upon the order of the court in which the action is pending. Rule 26.3(2) applies to the award of expenses upon a motion under this subdivision.
Review by the Deponent; Changes.
Review. Upon request by the deponent or a party made before the deposition is completed, the deponent shall be allowed twenty-four (24) hours after being notified by the officer that the recording or transcript is available in which to review it and, if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
Waiver. Review and signature are waived if not requested before the deposition is completed, or if the deponent cannot be found or refuses to sign.
Officer’s Note. The officer shall note in the certificate required by Rule 23(12)(a) whether a review was requested and, if so, shall attach any statement of changes the deponent makes within the time allowed.
Certification; Delivery; Exhibits; Custody.
Certification. The officer shall certify in writing that the deponent was duly sworn and that the record accurately records the deponent’s testimony. The certificate shall accompany the record of the deposition.
Delivery and Custody. Unless the court orders otherwise, the officer shall promptly deliver the record and the certificate to the attorney who arranged for the recording or transcript, who shall store them under conditions that will protect them against loss, destruction, tampering, or deterioration, and shall furnish a copy to any party or to the deponent upon payment of the reasonable charge.
Exhibits. Documents and tangible things produced for inspection during a deposition shall, upon a party’s request, be marked for identification and attached to the record of the deposition. Any party may inspect and copy them. A person who produced them and wishes to keep the originals may offer copies to be marked and used as originals, after giving all parties a fair opportunity to verify the copies by comparison with the originals, or may 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.
Deposition Not Filed. A deposition is discovery material governed by Rule 19(12) and shall not be tendered to the electronic filing system except when filed for use under Rule 25 or in support of a motion. Where a recording or transcript offered for filing exceeds fifty (50) megabytes, the party offering it shall, where the presiding judge permits, lodge it by upload to a trusted file hosting service and shall file the certificate, an index, and the address at which the recording may be obtained. A party who files a deposition shall promptly notify every other party.
Failure to Attend; Expenses. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover the reasonable expenses of attending, including attorney’s fees, if the noticing party failed to attend and proceed with the deposition, or failed to serve a subpoena upon a non-party deponent who consequently did not attend.
Cost Allocation. The party noticing a deposition bears the cost of recording it. Each party bears its own expense of attending. Upon motion, the court may allocate the costs of a deposition otherwise, including where a deposition was taken for an improper purpose or in violation of a limitation under Rule 19(3). Expenses for court reporters and fees for expert witnesses incurred in connection with a deposition are taxable as costs to the prevailing party as provided by 7 R. Stat. § 132.201.