24.5.322 - DEPOSITIONS

24.5.322    DEPOSITIONS

(1) A party may take the testimony of any person, including a party, by deposition upon oral examination after the court or appropriate party has served the petition. The petitioner shall obtain leave of court if the petitioner seeks to take a deposition prior to the expiration of 20 days from the date of service of the petition. If a party seeks to take a post-trial deposition, the party shall obtain leave of court. A party may compel the attendance of witnesses by subpoena as provided by ARM 24.5.331.

(2) A party seeking to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the proceeding and:

(a) include in the notice the time and place for taking the deposition and the name and address of each person to be examined; and

(b) if intending to serve a subpoena duces tecum on the person to be examined, attach to or include in the notice the designation of the materials to be produced as set forth in the subpoena.

(3) The court may lengthen or shorten the time for taking the deposition if a party demonstrates good cause.

(4) The parties may examine and cross-examine witnesses in the same manner that the court permits at trial. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in that person's presence, stenographically record the testimony of the witness. If requested by a party, the person who recorded the testimony shall transcribe it.

(5) Unless they agree otherwise, the parties shall make all objections at the time of taking the deposition and on the record. The parties shall take evidence to which a party objects subject to the objections. The parties shall brief deposition objections. The court may deem the parties' failure to do so a withdrawal of the objections.

(6) At any time during the deposition, on motion of a party or of the deponent, and upon a showing that the officer is conducting the examination in bad faith or in a manner as unreasonably to annoy, embarrass, or oppress a party or the deponent, the parties shall suspend the taking of the deposition for the time necessary for the objecting party or deponent to move the court for an order. The court may order the officer conducting the examination to cease taking the deposition, or may limit the scope and manner of the taking of the deposition. If the court ends the examination by order, the parties may resume the deposition only upon further order of the court. The court may order the offending party to pay to the other party the amount of the reasonable expenses that the adjournment and resumption of the deposition caused that party to incur, including reasonable attorney fees, and the court may adjudge the offending party or attorney guilty of contempt.

(7) The witness shall examine any transcribed deposition either by reading it or having it read aloud. The witness shall enter any changes in form or substance that the witness desires to make upon the deposition. The witness shall then sign under oath, unless the parties and the witness waive the signing or the witness is ill, cannot be found, or refuses to sign. If the witness does not sign the deposition within the time set forth in ARM 24.5.320, the officer shall sign it and state on the record the reason, if any, that the witness has not signed the deposition. A party may then use the deposition as fully as though the witness had signed it.

(8) The parties, by written stipulation, or by stipulation entered upon the record of a deposition, may provide that they may take depositions before any person, at any time or place, upon any notice, and in any manner. The parties may use these depositions like other depositions.

(9) Any party may use the deposition of a witness or a party for any purpose, regardless of the availability of the witness or party to testify at trial, unless the court restricts the deposition's usage because it would serve the interests of justice.

(10) If a party proposes to offer a transcribed deposition for the court's consideration, that party shall:

(a) submit it by e-mail attachment by the date specified by the court; and

(b) file the hard copy original at or before trial.

(11) Any party participating in a deposition may make a simultaneous digital recording of the deposition. A party who intends to digitally record a deposition shall notify all parties. If a party proposes to offer the digitally recorded deposition for the court's consideration, that party shall provide a copy to the court in DVD format, labeled with the name of the case and the name or names of all witnesses whose depositions are contained on the digitally recorded deposition. A party filing a digitally recorded deposition with the court shall also provide a transcript prepared by the court reporter who attended the deposition.

(12) A party may take a deposition upon written questions. The party taking the deposition shall give reasonable notice to all other parties of the name and address of the person who is to answer the questions and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within the time set forth in ARM 24.5.320 after service of the notice and written questions, a party may serve cross-questions upon all other parties. Thereafter, within the time set forth in ARM 24.5.320, a party may serve redirect questions upon all other parties. Within the time set forth in ARM 24.5.320 after the service of the redirect questions, a party may serve recross-questions upon all other parties.

History: 2-4-201, MCA; IMP, 2-4-201, 39-71-2901, MCA; NEW, 1983 MAR p. 1715, Eff. 11/26/83; TRANS, from ARM 2.52.322, 1989 MAR p. 2177, Eff. 12/22/89; AMD, 1990 MAR p. 847, Eff. 5/1/90; AMD, 1994 MAR p. 675, Eff. 4/1/94; AMD, 2014 MAR p. 2829, Eff. 3/1/15; AMD, 2018 MAR p. 305, Eff. 3/15/18.