Rule 28.Persons Before Whom Depositions May be Taken

Rule 28 is identical to its civil counterpart and the source says so before subsection (a). It is short, and its third subsection is the one people forget.

Inside the United States

A deposition is taken before an officer authorized to administer oaths by federal law or the law of the place of the examination, or before a person the court appoints — who then has power to administer oaths and take testimony. The rule adds a definition worth noting: "officer" in Rules 30, 31 and 32 includes a person appointed by the court or designated by the parties under Rule 29, so a stipulation under Rule 29 carries through the rest of the deposition machinery.

In a foreign country

Three routes: on notice before someone authorized to administer oaths where the examination is held; before a person commissioned by the court, whose commission itself confers the power to swear and take testimony; or by letter rogatory. A commission or letter rogatory issues on application and notice, and the applicant does not have to show that other methods are impracticable or inconvenient — both may issue in a proper case.

A letter rogatory may be addressed simply "To the Appropriate Authority in [country]". Evidence that comes back is not excluded merely because it is not a verbatim transcript, or was not taken under oath, or departs in some similar way from what these rules would require at home.

Disqualification

Subsection (c) bars taking a deposition before anyone who is a relative, employee, attorney or counsel of a party; a relative or employee of that attorney or counsel; or financially interested in the action. Rule 32(d)(2) is the companion: an objection on this ground is waived unless made before the deposition begins, or as soon as the disqualification becomes known or could have been found with reasonable diligence.