(a) General rule. In any proceeding instituted under or subject to the provisions of subpart A of this part, a party may take the deposition of an expert, or of a person, including another party, who has direct knowledge of matters that are non-privileged, relevant, and material to the proceeding, and where there is need for the deposition. The deposition of experts shall be limited to those experts who are expected to testify at the hearing.
(b) Notice. A party desiring to take a deposition shall give reasonable notice in writing to the deponent and to every other party to the proceeding. The notice must state the time and place for taking the deposition, and the name and address of the person to be deposed.
(c) Time limits. A party may take depositions at any time after the commencement of the proceeding, but no later than ten days before the scheduled hearing date, except with permission of the administrative law judge for good cause shown.
(d) Conduct of the deposition. The witness must be duly sworn, and each party will have the right to examine the witness with respect to all non-privileged, relevant, and material matters of which the witness has factual, direct, and personal knowledge. Objections to questions or exhibits must be in short form and must state the grounds for the objection. Failure to object to questions or exhibits is not a waiver except where the grounds for the objection might have been avoided if the objection had been timely presented.
(e) Recording the testimony—(1) Generally. The party taking the deposition must have a certified court reporter record the witness's testimony:
(i) By stenotype machine or electronic sound recording device;
(ii) Upon agreement of the parties, by any other method; or
(iii) For good cause and with leave of the administrative law judge, by any other method.
(2) Cost. The party taking the deposition must bear the cost of the recording and transcribing the witness's testimony.
(3) Transcript. Unless the parties agree that a transcription is not necessary, the court reporter must provide a transcript of the witness's testimony to the party taking the deposition and must make a copy of the transcript available to each party upon payment by that party of the cost of the copy.
(f) Protective orders. At any time after notice of a deposition has been given, a party may file a motion for the issuance of a protective order. Such protective order may prohibit, terminate, or limit the scope or manner of the taking of a deposition. The administrative law judge shall grant such protective order upon a showing of sufficient grounds, including that the deposition:
(1) Is unreasonable, oppressive, excessive in scope, or unduly burdensome;
(2) Involves privileged, irrelevant, or immaterial matters;
(3) Involves unwarranted attempts to pry into a party's preparation for trial; or
(4) Is being conducted in bad faith or in such manner as to unreasonably annoy, embarrass, or oppress the witness.
(g) Fees. Deposition witnesses, including expert witnesses, shall be paid the same expenses in the same manner as are paid witnesses in the district courts of the United States in proceedings in which the United States is a party. Expenses in accordance with this paragraph shall be paid by the party seeking to take the deposition.
[56 FR 38028, Aug. 9, 1991, as amended at 61 FR 20338, May 6, 1996]
Title 12 published on 2012-01-01
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