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A Few Short Notes on Depositions

In addition to the general Discovery Rules of NRCP 16.1 and 26, the Deposition process is controlled by NRCP 28 – 31 (the use of Depositions at Trial is controlled by NRCP 32. In this post, I am going to discuss Rules 28, 29 and 30(b)(2)-(4).

Historically, Depositions were recorded by Court Reporters using stenographic machines. The record of the Deposition includes the questions asked, answers given and any objections to any questions asked. The Courts have kept up with the times by allowing use of non-stenographic means of recording. The use of these alternate means have been approved as they have proven to be able to accurately record the testimony given.

RULE 30(b) is concerned with the requirements for the Notice of Examination. This includes the General Requirements of NRCP 30(b)(1) as well as the methods of recording the Deposition. As noted above, the classic method is by Stenographic means. As stated in NRCP 30(b)(4) this is the means that is used unless agreed to by the Parties. That Rule also notes that certain introductory information must be read into the Deposition by the Court Reporter. Lastly, Rule 30(b)(4) requires that, “at the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.”

Rule 28 controls the persons before whom depositions may be taken. Part (a) of that Rule addresses Depositions taken within the United States and its Territories stating such “depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending.” Typically, this is a Certified Court Reporter who is also a Notary Public. These dedicated professionals have taken extensive training and have been tested to ensure their speed and accuracy. Often, Court Reporters will use an audio recording as a backup to further ensure their accuracy and avoid interruptions in the Deposition.

Rule 28(b) concerns Depositions taken in foreign Countries. That rules states that depositions may be taken in a foreign country under four conditions:

  1. pursuant to any applicable treaty or convention; or
  2. pursuant to a letter of request (whether or not captioned a letter rogatory); or
  3. on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States; or
  4. 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.

The Rule goes on to state:

A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and 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 of request may be addressed “To the Appropriate Authority in §here name the country.” When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request need not be excluded merely for the reason that it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States under these rules.

The Editor’s Note to Rule 28 regarding the Amendment effective January 1, 2005 states:

The rule is amended to conform to the federal rule, which, consistent with modern terminology and the primary method provided by The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, replaced the phrase “letter rogatory” with “letter of request.” The third sentence in subdivision)a) of the Nevada rule, governing the issuance of commissions and letters of request for depositions taken within other states, is retained. It does not have a federal counterpart.

Court Reporters can be disqualified

As an extra precaution, an otherwise qualified Court reporter can be disqualified if he or she has a financial interest in the case or if he or she “is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel.”

Rule 30(b)(2) states that “[t]he party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means.”

In fairness, the Rules allow any Party to use its chosen method of recording the Deposition. Specifically, Rule 30(b)(3) states that “[w]ith 5 days’ notice to the deponent and other parties, any party may designate another method to record the deponent’s testimony in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that party’s expense unless the court otherwise orders.

NRCP 30(b)(4) states that “[t]he appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.” It must be an honest and accurate showing of the Deponent. In a recent discussion, an attorney who represents Defendants on behalf of their insurance companies noted that it is helpful to adjusters to evaluate witnesses if they an watch a videotape showing the Parties appearance and demeanor as would be seen by a Jury at Trial.

Deposition Rule 29

The last Rule I will discuss in this post is Rule 29. That, allows Parties to make stipulations regarding Depositions and Discovery such stipulations would include variations on the Rules regarding time, place and manner of taking Depositions, shortening notice requirements for Depositions, and modifying “the procedures governing or limitations placed upon discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may, if they would interfere with any time set for completion of discovery, for hearing of a motion, or for trial, be made only with the approval of the court.”

It seems sensible that if the Parties agree to a modification and the Court is not affected by the agreement, the Court should not be involved. It is also sensible that the Court should be notified and approve the modification if it affects the Court’s schedule. This reasoning is set forth in Drafter’s Note to the Amendment effective on January 1, 2005. The Drafters wrote:

The rule is amended to conform to the federal rule, which allows parties to stipulate to certain procedural waivers and limitations in discovery, while protecting against a stipulation that is contrary to court mandated discovery deadlines, such as a stipulation to waive early disclosure under Rule 16.1. The amended rule requires that stipulations to extend the time for responses to discovery provided in Rules 33, 34, and 36 may be made only with the court’s approval if the extension would interfere with times set for completing discovery, hearing a motion, or trial.
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