Rule 28. Persons Before Whom Depositions May Be Taken

Contents

(a) WITHIN THE UNITED STATES

(1)In General

Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before:
(A)an officer authorized to administer oaths either by federal law or by the law in the place of examination; or
(B)a person appointed by the court to administer oaths and take testimony.

(2)Definition of "Officer"

The term "officer" in Rules 30, 31 and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a).

(b) IN A FOREIGN COUNTRY

(1)In General

A deposition may be taken in a foreign country:
(A)under an applicable treaty or convention;
(B)under a letter of request, whether or not captioned a “letter rogatory”;
(C)on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or
(D)before a person commissioned by the court to administer any necessary oath and take testimony.

(2)Issuing a Letter of Request or a Commission

A letter of request, a commission, or both may be issued:
(A)on appropriate terms after an application and notice of it; and
(B)without a showing that taking the deposition in another manner is impracticable or inconvenient.

(3)Form of a Request, Notice, or Commission

When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed "To the Appropriate Authority in [name of country]." A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken.

(4)Letter of Request—Admitting Evidence

Evidence obtained in response to a letter of request need not be excluded merely because:
(A)it is not a verbatim transcript;
(B)the testimony was not taken under oath; or
(C)any similar departure from the requirements for depositions taken within the United States.

(c) DISQUALIFICATION

A deposition must not be taken before a person who is:
(1)any party’s relative, employee, or attorney;
(2)related to or employed by any party’s attorney; or
(3)financially interested in the action.

Comments

COMMENT TO 2017 AMENDMENTS

This rule is identical to Federal Rule of Civil Procedure 28, as amended in 2007, except that 1) the phrase “in which the action is pending” is still omitted; and 2) subsection (b)(4) and section (c) are divided into further subsections.

COMMENT

Rule 28 is identical to Federal Rule of Civil Procedure 28 except for deletion from paragraph (a) of the superfluous Court designation "in which the action is pending."