TITLE VIII

DEPOSITIONS

Rule 80.  General Provisions
    (a) General. On complying with the applicable requirements,
depositions to perpetuate evidence may be taken in a pending case
before trial (Rule 81), or in anticipation of commencing a case
in this Court (Rule 82), or in connection with the trial (Rule
83). Depositions under this Title may be taken only for the
purpose of making testimony or any document or thing available as
evidence in the circumstances herein authorized by the applicable
Rules. Depositions for discovery purposes may be taken only in
accordance with Rules 74, 75, and 76.
   (b) Other applicable rules. For Rules concerned with the
timing and frequency of depositions, supplementation of answers,
protective orders, effect of evasive or incomplete answers or
responses, and sanctions and enforcement action, see Title X. For
provisions relating to tender of fees and other amounts to the
witness to be deposed, see Rule 148(b).

Rule 81.  Depositions in Pending Case
    (a) Depositions to perpetuate testimony. A party to a case
pending in the Court, who desires to perpetuate testimony or to
preserve any document or thing, shall file an application
pursuant to these Rules for an order of the Court authorizing
such party to take a deposition for such purpose. Such
depositions shall be taken only where there is a substantial risk
that the person or document or thing involved will not be
available at the trial of the case, and shall relate only to
testimony or document or thing which is not privileged and is
material to a matter in controversy.
   (b) The application.
   (1) Content of application. The application to take a
deposition pursuant to paragraph (a) of this Rule shall be signed
by the party seeking the deposition or such party's counsel, and
shall show the following:
   (A) the names and addresses of the persons to be examined;
   (B) the reasons for deposing those persons rather than waiting
to call them as witnesses at the trial;
   (C) the substance of the testimony which the party expects to
elicit from each of those persons;
   (D) a statement showing how the proposed testimony or document
or thing is material to a matter in controversy;
   (E) a statement describing any books, papers, documents, or
tangible things to be produced at the deposition by the persons
to be examined;
   (F) the time and place proposed for the deposition;
   (G) the officer before whom the deposition is to be taken;
   (H) the date on which the petition was filed with the Court,
and whether the pleadings have been closed and the case placed on
a trial calendar;
   (I) any provision desired with respect to payment of expenses,
fees, and charges relating to the deposition (see paragraph (g)
of this Rule, and Rule 103); and
   (J) if the applicant proposes to videotape the deposition,
then the application shall so state, and shall show the name and
address of the videotape operator and of the operator's employer.
(The videotape operator and the officer before whom the
deposition is to be taken may be the same person. See
subparagraph (2) of paragraph (j) of this Rule.)
   The application shall also have annexed to it a copy of the
questions to be propounded, if the deposition is to be taken on
written questions.  For the form of application to take a
deposition, see Appendix I.
   (2) Filing and disposition of application. The application may
be filed with the Court at any time after the case is docketed in
the Court, but must be filed at least 45 days prior to the date
set for the trial of the case.  The application and a conformed
copy thereof, together with an additional conformed copy for each
additional docket number involved, shall be filed with the Clerk
of the Court. The applicant shall serve a copy of the application
on each of the other parties to the case, as well as on such
other persons who are to be examined pursuant to the application,
and shall file with the Clerk a certificate showing such service.
Such other parties or persons shall file their objections or
other response, with the same number of copies and with a
certificate of service thereof on the other parties and such
other persons, within 15 days after such service of the
application. A hearing on the application will be held only if
directed by the Court. Unless the Court shall determine otherwise
for good cause shown, an application to take a deposition will
not be regarded as sufficient ground for granting a continuance
from a date or place of trial theretofore set. If the Court
approves the taking of a deposition, then it will issue an order
which will include in its terms the name of the person to be
examined, the time and place of the deposition, and the officer
before whom it is to be taken. If the deposition is to be
videotaped, then the Court's order will so state.
   (c) Designation of person to testify. The party seeking to
take a deposition may name, as the deponent in the application, a
public or private corporation or a partnership or association or
governmental agency, and shall designate with reasonable
particularity the matters on 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 such person will testify. The
persons so designated shall testify as to matters known or
reasonably available to the organization.
   (d) Use of stipulation. The parties or their counsel may
execute and file a stipulation to take a deposition by agreement
instead of filing an application as hereinabove provided. Such a
stipulation shall be filed with the Court in duplicate, and shall
contain the same information as is required in items (A), (F),
(G), (I), and (J) of Rule 81(b)(1), but shall not require the
approval or an order of the Court unless the effect is to delay
the trial of the case. A deposition taken pursuant to a
stipulation shall in all respects conform to the requirements of
these Rules.
   (e) Person before whom deposition taken.
   (1) Domestic depositions. Within the United States or a
territory or insular possession subject to the dominion of the
United States, depositions shall be taken before an officer
authorized to administer oaths by the laws of the United States
(see Code Section 7622) or of the place where the examination is
held, or before a person appointed by the Court. A person so
appointed has power to administer oaths and to take such
testimony.
   (2) Foreign Depositions. In a foreign country, depositions may
be taken (A) before a person authorized to administer oaths or
affirmations in the place in which the examination is held,
either by the law thereof or by the law of the United States, or
(B) before a person commissioned by the Court, and a person so
commissioned shall have the power, by virtue of the commission,
to administer any necessary oath and take testimony, or (C)
pursuant to a letter rogatory or a letter of request issued in
accordance with the provisions of the Hague Convention of 18
March 1970 on the Taking of Evidence Abroad in Civil or
Commercial Matters. A commission, a letter rogatory, or a letter
of request shall be issued on application and notice and on terms
that are just and appropriate. The party seeking to take a
foreign deposition shall contact the United States Department of
State to ascertain any requirements imposed by it or by the
foreign country in which the deposition is to be taken, including
any required foreign language translations and any fees or costs,
and shall submit to the Court, along with the application, any
such foreign language translations, fees, costs, or other
materials required. It is not requisite to the issuance of a
commission, a letter rogatory, or a letter of request that the
taking of the deposition in any other manner be impracticable or
inconvenient; and both a commission and a letter rogatory, or
both a commission and a letter of request, may be issued in
proper cases. A notice or commission may designate the person
before whom the deposition is to be taken either by name or
descriptive title. A letter rogatory may be addressed "To the
Appropriate Authority in [here name the country]." A letter of
request is addressed to the central authority of the requested
State. The model recommended for letters of request is set forth
in the Hague Convention of 18 March 1970 on the Taking of
Evidence Abroad in Civil or Commercial Matters, 23 U.S.T. 2555,
T.I.A.S. No. 7444. Evidence obtained by deposition or in response
to a letter rogatory or a letter of request need not be excluded
merely for the reason that it is not a verbatim transcript or
that the testimony was not taken under oath or for any similar
departure from the requirements for depositions within the United
States under these Rules.
   (3) Disqualification for interest. No deposition shall be
taken before a person who is a relative or employee or counsel of
any party, or is a relative or employee or associate of such
counsel, or is financially interested in the action. However, on
consent of all the parties or their counsel, a deposition may be
taken before such person, but only if the relationship of that
person and the waiver are set forth in the certificate of return
to the Court.
   (f) Taking of deposition.
   (1) Arrangements. All arrangements necessary for taking of the
deposition shall be made by the party filing the application or,
in the case of a stipulation, by such other persons as may be
agreed upon by the parties.
   (2) Procedure. Attendance by the persons to be examined may be
compelled by the issuance of a subpoena, and production likewise
may be compelled of exhibits required in connection with the
testimony being taken. The officer before whom the deposition is
taken shall first put the witness on oath (or affirmation) and
shall personally, or by someone acting under such officer's
direction and in such officer's presence, record accurately and
verbatim the questions asked, the answers given, the objections
made, and all matters transpiring at the taking of the deposition
which bear on the testimony involved. Examination and cross-
examination of witnesses, and the marking of exhibits, shall
proceed as permitted at trial. All objections made at the time of
examination shall be noted by the officer upon the deposition.
Evidence objected to, unless privileged, shall be taken subject
to the objections made.  If an answer is improperly refused and
as a result a further deposition is taken by the interrogating
party, the objecting party or deponent may be required to pay all
costs, charges, and expenses of that deposition to the same
extent as is provided in paragraph (g) of this Rule where a party
seeking to take a deposition fails to appear at the taking of the
deposition. At the request of either party, a prospective witness
at the deposition, other than a person acting in an expert or
advisory capacity for a party, shall be excluded from the room in
which, and during the time that, the testimony of another witness
is being taken; and if such person remains in the room or within
hearing of the examination after such request has been made, such
person shall not thereafter be permitted to testify, except by
the consent of the party who requested such person's exclusion or
by permission of the Court.
   (g) Expenses.
   (1) General. The party taking the deposition shall pay all the
expenses, fees, and charges of the witness whose deposition is
taken by such party, any charges of the officer presiding at or
recording the deposition other than for copies of the deposition,
and any expenses involved in providing a place for the
deposition. The party taking the deposition shall pay for the
original of the deposition; and, upon payment of reasonable
charges therefor, the officer shall also furnish a copy of the
deposition to any party or the deponent. By stipulation between
the parties or on order of the Court, provision may be made for
any costs, charges, or expenses relating to the deposition.
   (2) Failure to attend or to serve subpoena. If the party
authorized to take a deposition fails to attend and proceed
therewith and another party attends in person or by attorney
pursuant to the arrangements made, then the Court may order the
former party to pay to such other party the reasonable expenses
incurred by such other party and such other party's attorney in
attending, including reasonable attorney's fees. If the party
authorized to take a deposition of a witness fails to serve a
subpoena upon the witness and the witness because of such failure
does not attend, and if another party attends in person or by
attorney because such party expects the deposition of that
witness to be taken, then the Court may order the former party to
pay to such other party the reasonable expenses incurred by such
other party and such other party's attorney attending, including
reasonable attorney's fees.
   (h) Execution and return of deposition.
   (1) Submission to witness; changes; signing. When the
testimony is fully transcribed, the deposition shall be submitted
to the witness for examination and shall be read to or by the
witness, unless such examination and reading are waived by the
witness and by the parties. Any changes in form or substance,
which the witness desires to make, shall be entered upon the
deposition by the officer with a statement of the reasons given
by the witness for making them. The deposition shall then be
signed by the witness, unless the parties by stipulation waive
the signing or the witness is ill or cannot be found or refuses
to sign. If the deposition is not signed by the witness within 30
days of its submission to the witness, then the officer shall
sign it and state on the record the fact of the waiver or of the
illness or absence of the witness or the fact of the refusal to
sign together with the reason, if any, given therefor; and the
deposition may then be used as fully as though signed unless the
Court determines that the reasons given for the refusal to sign
require rejection of the deposition in whole or in part. As to
correction of errors, see Rules 85 and 143(c).
   (2) Form. The deposition shall show the docket number and
caption of the case as they appear in the Court's records, the
place and date of taking the deposition, the name of the witness,
the party by whom called, the names of counsel present and whom
they represent. The pages of the deposition shall be securely
fastened. Exhibits shall be carefully marked, and when
practicable annexed to, and in any event returned with, the
deposition, unless, upon motion to the Court, a copy shall be
permitted as a substitute after an opportunity is given to all
interested parties to examine and compare the original and the
copy. The officer shall execute and attach to the deposition a
certificate in accordance with Form 7 shown in Appendix I.
   (3) Return of deposition. The deposition and exhibits shall
not be filed with the Court. Unless otherwise directed by the
Court, the officer shall deliver the original deposition and
exhibits to the party taking the deposition or such party's
counsel, who shall take custody of and be responsible for the
safeguarding of the original deposition and exhibits. Upon
payment of reasonable charges therefor, the officer also shall
deliver a copy of the deposition and exhibits to any party or the
deponent, or to counsel for any party or for the deponent. As to
use of a deposition at the trial or in any other proceeding in
the case, see paragraph (i) of this Rule. As to introduction of a
deposition in evidence, see Rule 143(c).
   (i) Use of deposition. At the trial or in any other proceeding
in the case, any part or all of a deposition, so far as
admissible under the rules of evidence applied as though the
witness were then present and testifying, may be used against any
party who was present or represented at the taking of the
deposition or who had reasonable notice thereof, in accordance
with any of the following provisions:
   (1) The deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness.
   (2) The deposition of a party may be used by an adverse party
for any purpose.
   (3) The deposition may be used for any purpose if the Court
finds: (A) that the witness is dead; or (B) that the witness is
at such distance from the place of trial that it is not
practicable for the witness to attend, unless it appears that the
absence of the witness was procured by the party seeking to use
the deposition; or (C) that the witness is unable to attend or
testify because of age, illness, infirmity, or imprisonment; or
(D) that the party offering the deposition has been unable to
obtain attendance of the witness at the trial, as to make it
desirable in the interests of justice, to allow the deposition to
be used; or (E) that such exceptional circumstances exist, in
regard to the absence of the witness at the trial, as to make it
desirable in the interests of justice, to allow the deposition to
be used.
   (4) If only part of a deposition is offered in evidence by a
party, then an adverse party may require the party offering the
deposition to introduce any other part which ought in fairness to
be considered with the part introduced, and any party may
introduce any other parts.
   As to introduction of a deposition in evidence, see Rule
143(c).
   (j) Videotape depositions.
   (1) General. By stipulation of the parties or upon order of
the Court, a deposition to perpetuate testimony to be taken upon
oral examination may be recorded by videotape. Except as
otherwise provided by this paragraph, all other provisions of
these Rules governing the practice and procedure in depositions
shall apply.
   (2) Procedure. The deposition shall begin by the operator
stating on camera (A) the operator's name and address, (B) the
name and address of the operator's employer, (C) the date, time,
and place of the deposition, (D) the caption and docket number of
the case, (E) the name of the witness, and (F) the party on whose
behalf the deposition is being taken. The officer before whom the
deposition is taken shall then identify himself or herself and
swear the witness on camera. At the conclusion of the deposition,
the operator shall state on camera that the deposition is
concluded. The officer before whom the deposition is taken and
the operator may be the same person. When the length of the
deposition requires the use of more than one tape, the end of
each tape and the beginning of each succeeding tape shall be
announced on camera by the operator. The deposition shall be
timed by a digital clock on camera which shall show continually
each hour, minute, and second of each tape of the deposition.
   (3) Transcript. If requested by one of the parties, then the
testimony shall be transcribed at the cost of such party; but no
signature of the witness shall be required, and the transcript
shall not be filed with the Court.
   (4) Custody. The party taking the deposition or such party's
counsel shall take custody of and be responsible for the
safeguarding of the videotape together with any exhibits, and
such party shall permit the viewing of or shall provide a copy of
the videotape and any exhibits upon the request and at the cost
of any other party.
   (5) Use. A videotape deposition may be used at a trial or
hearing in the manner and to the extent provided in paragraph (i)
of this Rule. The party who offers the videotape in evidence
shall provide all necessary equipment for viewing the videotape
and personnel to operate such equipment. At a trial or hearing,
that part of the audio portion of a videotape deposition which is
offered in evidence and admitted, or which is excluded on
objection, shall be transcribed in the same manner as the
testimony of other witnesses. The videotape shall be marked as an
exhibit and, subject to the provisions of Rule 143(d)(2), shall
remain in the custody of the Court.

Rule 82.  Depositions Before Commencement of Case
    A person, who desires to perpetuate testimony or to preserve
any document or thing regarding any matter that may be cognizable
in this Court, may file an application with the Court to take a
deposition for such purpose.  The application shall be entitled
in the name of the applicant, shall otherwise be in the same
style and form as apply to a motion filed with the Court, and
shall show the following: (1) The facts showing that the
applicant expects to be a party to a case cognizable in this
Court but is at present unable to bring it or cause it to be
brought. (2) The subject matter of the expected action and the
applicant's interest therein. (3) All matters required to be
shown in an application under paragraph (b)(1) of Rule 81 except
item (H) thereof. Such an application will be entered upon a
special docket, and service thereof and pleading with respect
thereto will proceed subject to the requirements otherwise
applicable to a motion. A hearing on the application may be
required by the Court. If the Court is satisfied that the
perpetuation of the testimony or the preservation of the document
or thing may prevent a failure or delay of justice, then it will
make an order authorizing the deposition and including such other
terms and conditions as it may deem appropriate consistently with
these Rules. If the deposition is taken, and if thereafter the
expected case is commenced in this Court, then the deposition may
be used in that case subject to the Rules which would apply if
the deposition had been taken after commencement of the case.

Rule 83.  Depositions After Commencement of Trial
    Nothing in these Rules shall preclude the taking of a
deposition after trial has commenced in a case, upon approval or
direction of the Court.  The Court may impose such conditions to
the taking of the deposition as it may find appropriate and, with
respect to any aspect not provided for by the Court, Rule 81
shall govern to the extent applicable.

Rule 85.  Objections, Errors, and Irregularities
    (a) As to initiating deposition. All errors and
irregularities in the procedure for obtaining approval for the
taking of a deposition are waived, unless made in writing within
the time for making objections or promptly where no time is
prescribed.
   (b) As to disqualification of officer. Objection to taking a
deposition because of disqualification of the officer before whom
it is to be taken is waived, unless made before the taking of the
deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.
   (c) As to use. In general, an objection may be made at the
trial or hearing to use of a deposition, in whole or in part as
evidence, for any reason which would require the exclusion of the
testimony as evidence if the witness were then present and
testifying. However, objections to the competency of a witness or
to the competency, relevancy, or materiality of testimony are
waived by failure to make them before or during the taking of the
deposition, if the ground of the objection is one which might
have been obviated or removed if presented at that time.
   (d) As to manner and form. Errors and irregularities occurring
at the oral examination in the manner of taking the deposition,
in the form of the questions or answers, in the oath or
affirmation, or in the conduct of the parties, and errors of any
kind which might have been obviated, removed, or cured if
promptly presented, are waived unless reasonable objection
thereto is made at the taking of the deposition.
   (e) As to errors by officer. Errors or irregularities in the
manner in which testimony is transcribed or the deposition is
prepared, signed, certified, sealed, endorsed, transmitted,
filed, or otherwise dealt with by the presiding officer, are
waived unless a motion to correct or suppress the deposition or
some part thereof is made with reasonable promptness after such
defect is, or with due diligence might have been, ascertained.
See also Rule 143(c).

Rule 86--89.  [Reserved]

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