Rule 30.Depositions Upon Oral Examination

An amendment to the redesignated subdivision (d)(3) has no substantive affect. The language “during the taking of the deposition” has simply been changed to “during a deposition.”

Advisory Committee’s Notes

Rule 30(b)(7) is added to provide that a deposition may be taken by telephone upon stipulation or order of the court. The amendment embodies the first sentence of Federal Rule 30(b)(7) added by amendment in 1980.

Advisory Committee’s Notes

The purpose of these amendments is to broaden the current rules relating to recording of depositions to accommodate technologies, particularly electronic recording and video recording which have developed or been perfected since the rule was last significantly revised in 1970. Additionally, the rules amendments avoid concern that the present rules may unduly restrict competition in this area. Further, it is hoped that the amended rules may present some opportunities for cost savings in discovery.

The amendments have the following features:

1. The notice time for depositions in paragraph (b)(l) is extended to 10 days to provide more realistic times for notice and to provide opportunities for objection where appropriate. Counsel should make all appropriate efforts to contact other parties and arrange mutually convenient deposition times rather than simply sending notices and expecting other parties to comply.

2. The second sentence of paragraph (b)(1) is amended to restructure the sentence into subparagraphs A, B, C and D. However, subparagraphs A and B essentially are the same as the present rule. Subparagraph C is consistent with present practice where the deposition officer is regularly identified. Subparagraph D requires that the notice of the deposition specify the manner in which the deposition will be taken. It is the intent of this provision that the parties, in addition to designating who will take the deposition, indicate the recording method that will be used in taking the deposition. This may allow parties properly to prepare for the deposition, and it also will allow for any objections to the method of deposition taking to be filed in accordance with amendments to paragraph (b)(4) below.

3. Paragraph (b)(4) is completely rewritten. The principal effect of the amendment is to provide four alternative methods of recording depositions which do not need prior approval by court order. These are shorthand writing, which is still used by a few court reporters; the stenotype machine, which is presently the principal method for recording depositions; tape recording by multi-track tape, which is the method of recording testimony presently used in District Court and is also utilized in some deposition recording proceedings; and video camera recording.

Multi-track tape considerably eases the task of identifying separate speakers on a tape. It should be evident that single-track tape recorders, such as the standard cassette recorders with single microphones, would not meet this criterion and would not be viewed as adequate for deposition recording.

Video camera recording also considerably simplifies identification of the speaker, because the focus is on the witness, who is the principal speaker, and the questioners can identify themselves separately. Further, questioner identification can be aided by proper operator records. Frequently video camera recording of depositions is supplemented by stenotype machine recording. However, if alternative adequate means are provided to separately identify speakers, stenotype machine supplement of video camera recording would not be needed in all cases. In video depositions, occasionally disputes have developed regarding proper focus of the camera. For that reason, the rule includes a provision that, unless the parties agree otherwise, the camera should focus only on the testifying witness and exhibits being utilized by that witness.

In addition to the listed methods, any other method may be used which is agreed to by the parties or approved by the court. This qualification recognizes that there may be other developments and alternative systems which may be appropriate; it also recognizes, as presently under Rule 29, that the parties can do virtually anything in discovery procedure by agreement.

The rule also establishes criteria which any deposition recording method must meet. The purpose is to permit greater flexibility in deposition taking methods by only setting criteria, rather than dictating the technology which must be used in taking the deposition. Generally, deposition recording methods which meet these criteria will be approved even where not listed specifically above. The criteria basically:

(A) Recognize the provisions of Rule 28, particularly the requirement that the deposition officer have no conflict of interest or relationship to the parties, Rule 28(c), and that the deposition taker be a notary or other officer authorized to administer oaths, Rule 28(a).

(B) Incorporate the present requirement of paragraph (b)(4) that the deposition method assure an accurate and trustworthy recording.

(C) Assure that whatever deposition method is used, persons reviewing the deposition, either on the tape or in a typed transcript, will be able to identify separate speakers with relative ease.

(D) Require that any deposition method used be susceptible to editing in such a manner that the deposition can be either read back or played back at trial after any objectionable and/or extraneous materials have been removed from the deposition. Further, subsection (D) necessarily requires that this editing process operate without great cost or difficulty.

(E) and (F) Require that the deposition taker be able to prepare a written transcript relatively promptly on request of any party and, in addition, that the deposition taker can make available either a recorded tape or a video tape of any deposition where tape recording or video tape is used. This may allow counsel to obtain a taped copy, if desired, at considerably less cost than preparing a full transcript would involve.

The rules also establish a procedure for making objections to deposition methods. The procedures would require that any objection be received in writing by both the court and other parties to the deposition at least three business days before the deposition is scheduled. This would allow sufficient time to either reschedule or rearrange the deposition if a prompt court hearing on the objection to the deposition could not be scheduled. The issues at the court hearing would be whether the recording methods were those approved by this rule, and whether the recording methods to be utilized meet the criteria set in the rule. The procedure authorizes automatic extension of the time for deposition until the objection is ruled on by the court. The rule drafters recognize that there is the potential in this rule for improper use of frivolous objections to obstruct or delay depositions. At the same time, some objection procedure appears to be necessary until experience is gained with alternative

technologies. Where the court finds objections to be frivolous or asserted for the purpose of delay, the court could impose appropriate sanctions under Rule 11 or Rule 37.

The amended rule also indicates that any party may record a deposition by any means as long as it does not obstruct the deposition. This amendment in part recognizes the current practice under Rule 30(b)(4) which authorizes stenographic recording even if an alternative means of taking the deposition is used. In addition, it recognizes current problems which have developed where some persons, often indigent or pro se litigants, have brought tape recorders to depositions, seeking to have a means of preserving their testimony without undertaking the cost of purchase of a transcript. Such recording would be allowed under the rules provided that it in no way obstructed the deposition. However, the result of any recording would not be an official transcript of the proceedings and could not be used to compete in any way with the official transcript should the official transcript be used in court.

Rule 30(c) is amended for consistency with the simultaneous amendment of Rule 30(b)(4).

Rule 30(e) is amended to make clear that it is the responsibility of the officer before whom a deposition has been taken to present the transcribed deposition to the witness for signature and that the officer must then notify counsel whether or not the witness has signed the deposition. The changes will allow counsel to request the officer to sign and file the transcript in timely fashion so that, at trial, issues as to whether the deposition transcript has been properly handled so as to be usable in court may be minimized.

The catch-line of Rule 30(f) has been amended to eliminate a reference to filing by the officer, for consistency with the 1985 amendments eliminating the requirement of filing.

Rule 30(f)(3) has been added, consistent with the amendments of Rule 30(b), to allow the filing of a certification and evidence used at the deposition along with a cassette or other electronically preserved record of the deposition without the necessity for filing a transcript.

Advisory Committee’s Notes

Rule 30(f)(1) is amended simultaneously with the addition of Rule 26(f) to provide that the officer taking a deposition shall transmit it to the party that served the notice of taking, rather than to the clerk of court. The amendment is applicable in the District Court by virtue of its incorporation in M.D.C.Civ.R. 30. The requirement of the rule that the deposition be sealed has been eliminated since it is no longer necessary to insure the integrity of the original.

Advisory Committee’s Note — February 2, 1976

Rule 30(c) is amended by changing “of Rule 43(b)” in the first sentence to read “of the Maine Rules of Evidence.” Rule 43(b), which is being abrogated, deals with the use of leading questions, the calling, interrogation, impeachment and scope of cross-examination of adverse parties, officers, etc. These topics are dealt with in many places in the Evidence Rules. Moreover, many pertinent topics included in the Evidence Rules, such as privilege, are not mentioned in Rule 43(b). A reference to the Evidence Rules generally is therefore made in this subdivision.

Advisory Committee’s Note — April 15, 1975

This amendment adds a new Rule 30(h), providing a simplified procedure for taking depositions upon oral examination within Maine to be used in proceedings in another jurisdiction. The former procedure for such depositions contained in Rule 28(d) has been abrogated by a simultaneous amendment. At the same time, a new Rule 31(d) has been added, making the new provision applicable to depositions upon written questions. See Advisory Committee’s Notes to amendments of Rules 28 and 31. The amendments will be applicable in the District Court, because Civil Rules 28, 30 and 31 are incorporated in the comparable District Court rules.

Rule 30(h) (1), based on former Rule 28(d), asserts the general proposition that oral depositions may be taken within Maine pursuant to the laws of another jurisdiction. This provision means that most aspects of the deposition, including such matters as the scope and manner of examination and the method of recording, signing, and attesting, will be covered by foreign law. The rule serves only to make available to the foreign party the compulsory

process of the Maine courts and to provide necessary protection for the deponent and other parties against abuse of that process. See [1] Field, McKusick, and Wroth, Maine Civil Practice § 28.5 (2d ed. 1970).

Rule 30(h) (2) provides that upon the filing of the application specified in paragraph (3) of the subdivision, subpoenas to deponents may issue as of course and the protective and compulsive features of the rules come into play. See Form 16 and Advisory Committee’s Note thereto. The amendment simplifies the practice under former Rule 28(d), which required a court order entered upon petition for the issuance of subpoenas. Experience under that rule has shown the requirement of an order to be a pure formality. Proceedings were invariably ex parte and the court had no realistic basis for evaluating the petition. The new rule expressly places the burden for seeking relief from an improperly granted subpoena where it has always been in practice B upon the objecting deponent or party, who must move for relief under Rule 30(d). The effect is to place the proceeding on a parity with an action brought in Maine. The application serves the function of the notice of taking under Rule 45(d) (1). As under former Rule 28(d), the application is still to be filed in the county of residence or other personal contact of a deponent. The application is to be docketed by the clerk so that it will be readily accessible to the deponent or the parties.

In a further simplification of the practice, only one such application need be filed even where depositions are sought from deponents in more than one county. As in a Maine action, the clerk in the county where the application is filed may issue subpoenas to be served in other counties. Rule 45 (d) (2), incorporated by reference, protects the deponent from harassment by limiting the distance which he may be required to travel. Although incorporation of Rule 45 (d) (1) would seem to permit the use of subpoena duces tecum, neither that device nor production under Rule 30 (b) (5) should be allowed unless such production in conjunction with a deposition is permitted by the law of the jurisdiction where the action is pending.

Under new Rule 30(h) (2) (ii), the filing of the application gives the party seeking the deposition the right to compel answers under Rule 37(a) and seek a contempt sanction under Rule 37(b) (1). The deponent or any opposing party may also proceed under Rule 30(d) for an order terminating the examination or limiting it in one of the ways provided in Rule 26(c). To some extent the Maine court will be restricted in its actions under this provision by the law of

the jurisdiction where the action is pending. Thus, if a court of that jurisdiction has issued a protective order under its own discovery rules, the Maine court should adhere to it. In shaping relief under Rule 26(c), the Maine court should be guided by any applicable provisions of the law of the other jurisdiction covering matters such as alternate discovery procedures or scope of examination, and it may be advisable in some instances simply to order suspension of the examination pending a ruling from the court where the action is pending. Of course, where the procedure being followed offends basic standards of fairness or would invade an interest protected under Maine law, such as the work product of a Maine lawyer or the evidentiary privilege of a Maine citizen, the Court should not hesitate to grant appropriate relief. See [1] Field, McKusick, and Wroth, Maine Civil Practice § 28.5.

Rule 30(h) (2) (ii) applies even if a subpoena has not been issued, so long as an application has been filed. Thus, as in a Maine action where notice of the deposition has been given to the parties, the parties may proceed without service of a subpoena and still have the advantages of the compulsive and protective provisions of the rules. Of course, the party seeking the deposition may elect to ignore the rule, relying entirely on the power of the foreign court over parties and witnesses within its jurisdiction to compel attendance and answers. In such case, the remedy of the deponent or an opposing party in the event of abuse would ordinarily be sought in the foreign court, although in an unusual instance involving irreparable harm of great magnitude a Maine court might grant injunctive relief in a separate proceeding. A Maine witness over whom the foreign court has no present or potential jurisdiction has the further recourse of declining to comply with a discovery request that is not backed up by the subpoena or order of a Maine court issued upon application under this rule. Cf. [1] Field, McKusick, and Wroth, Maine Civil Practice § 28.3 at n. 3.

Rule 30(h) (3) describes the contents of the application, which for convenience of reference should be entitled as it is in the court where the action is pending. The application is not served on the deponent but remains on file and accessible to him like the pleadings in an action brought in Maine. The actual subpoena (Official Form 16) should include a reference to the application and the clerk’s office where it is filed. An accurate statement of the title of the court and action, including docket number, is required by subparagraphs (i) and (ii) both for completeness of the record in Maine and to enable the deponent to obtain copies of the pleadings if necessary. The term “proceeding” is used to make clear that the rule is not limited to civil actions but may be used

to obtain depositions for use in probate, administrative, or criminal proceedings if the law of the other jurisdiction so provides. The statement of the action required by subparagraph (iii) should indicate briefly the factual basis of the plaintiff’s claim or other matter. Pertinent discovery provisions of the law of the other jurisdiction should at least be summarized and a proper citation given.

Rule 30(h) (3) (iv), (v), and (vi) are taken from the requirements for notice of deposition in Rule 30(b) (1). They are intended to provide the same foundation for the issuance of a subpoena under Rule 45(d) (1) that service and filing of the notice provides in a Maine action. Subparagraph (v) does not refer expressly to the provisions for corporate depositions contained in Rule 30(b) (6). If the jurisdiction where the action is pending permits such a procedure, the appropriate designation should be included as the description of the deponent. Subparagraph (vii) makes clear that timely and adequate notice must be given to all opposing parties. Maine has an interest in assuring to all parties the opportunity to raise objections such as privilege even if the other jurisdiction does not so provide. If the law of that jurisdiction does not provide a form of notice the same as or equivalent to that provided by Rule 30(b) (1), the party seeking the deposition must give notice as provided in that rule. The last two sentences of Rule 30(h) (3), in language similar to that of Rule 30(b) (2), are intended to provide the Maine court with a guarantee against frivolous or abusive use of its process. Even if the party seeking the deposition is appearing pro se in the other jurisdiction, he must retain Maine counsel for purposes of this rule. Otherwise there would be no person against whom any necessary sanctions could be applied.

Advisory Committee’s Note — September 23, 1971

This amendment clarifies the procedure for examination of a non-party corporation or other organization. Subdivision (b) (6) permits a party to name a corporation or other organization (rather than a natural person) as a deponent in the notice of examination, which must also designate the matters about which discovery is desired. The corporation or other organization is then obliged to designate natural persons authorized to testify on its behalf. In the case of a non-party organization, it is necessary to serve a subpoena rather than merely a notice of examination in order to compel attendance at the taking of the deposition. See [1] Field, McKusick & Wroth, Maine Civil Practice § 45.5.

The amendment makes clear that the subpoena may be used in this situation. When served with a subpoena naming it as the deponent and indicating the matters about which discovery is desired, the non-party organization must respond by designating natural persons who are then obliged to testify as to matters known or reasonably available to the organization. To insure that a non-party organization that is not represented by counsel has knowledge of its duty to designate, the amendment directs the party seeking discovery to advise of the duty in the body of the subpoena. This amendment is taken directly from the amendment to F.R. 30(b) (6) which became effective July 1, 1971.

Advisory Committee’s Note — October 1, 1970

Rule 30 reflects some rearrangement of the discovery rules to consolidate in that rule the provisions relating to the procedure for taking oral depositions. The amendment reflects no changes in substance. Rule 30(a), substantially similar to existing Rule 26(a), makes several changes in the existing requirement of leave of court for the taking of a deposition by the plaintiff soon after service upon the defendant. First, leave is required by reference to the time the deposition is to be taken rather than the date of serving the notice of taking. Second, the twenty-day period is extended to thirty days. Third, leave is not required beyond the time that the defendant initiates discovery, thus showing that he has retained counsel. Fourth, leave of court is not required if the plaintiff’s attorney, subject to the sanctions of Rule 11, in the notice for the taking of a deposition states, and sets forth facts to support the statement, that the deponent is about to leave the state and will be unavailable for examination unless his deposition is taken before the expiration of the thirty-day period.

Rule 30(b) (1) preserves the requirement of the Maine Rule that, in absence of a court order changing the length of notice, a notice of at least seven days shall be given for the taking of an oral deposition. The difference is thus maintained between the Maine Rule and the Federal Rule, which requires merely “reasonable notice.” Rule 30(b) (1) also requires that if a subpoena duces tecum is to be served upon the deponent, the notice shall include a designation of the materials to be produced pursuant to subpoena; thus each party is able to prepare for the deposition more effectively.

Rule 30(b) (4) permits the use of less expensive methods of recording the deposition than the customary stenographic means, but requires that a court order be obtained therefor in order to assure accuracy and trustworthiness, unless the parties stipulate under Rule 29 for such modification of the standard procedures.

Rule 30(b) (5) spells out a simple procedure for the production and inspection of documents or things in connection with the taking of the deposition of a party witness. The procedure is similar to that under Rule 34 for requests for the production or inspection of documents or things, except that the time within which to subject to the request is shortened from thirty days to five days because of the necessities of the deposition situation. If the party deponent objects to the request for production and inspection, as, for example, on the ground of privilege or on the ground that the requested matter does not come within the scope of Rule 26(b) or on the ground of impossibility of compliance by the time of the taking of the deposition the party taking the deposition must take the initiative in seeking an order of court under Rule 37(a) compelling discovery. The procedure of Rule 30(b) (5) is comparable to that spelled out by Rule 45(d) for use when a subpoena duces tecum is served against a deponent. However, only the contempt powers of the court are available to enforce a subpoena duces tecum, which is usable only against a person who can be served within the state, and thus the subpoena duces tecum will customarily be used only against non-party deponents as to whom it is the only avail-able device. On the other hand, the full range of sanctions listed in Rule 37(b) (2) are available against a party deponent, thus making the procedure available against a party deponent under Rule 30(b) (5) both simpler and more effective.

The simple procedure of Rule 30(b) (5) specified for production in connection with a party deposition eliminates the problems that have previously existed as to the interrelation of existing Rules 30, 34 and 45, which problems were discussed in 1 Field, McKusick and Wroth 486-87. Maine Rule 30(b) (5) differs from the federal rule in that it spells out independently of Rule 34 the procedure for production in connection with depositions. F.R. 30(b) (5) simply states: “The procedure of Rule 34 shall apply to the request.” This intended application is ambiguous because Rule 34 gives 30 days within which to respond whereas a deposition can be taken on notice of a relatively few days, i. e., 7 days under Maine Rule 30(b) (1) and “reasonable” time under F.R. 30(b) (1).

Rule 30(b) (6) adds a new procedure on depositions which should be advantageous to both sides. A party may name a corporation, partnership, association or governmental agency as the deponent and designate the matters on which he requests examination; then the organization is required to designate the person or persons who shall appear and testify on its behalf.

Rule 30(c) has only minor changes. The first sentence is transferred from existing Rule 26(c). The present Rule provides that the testimony will be transcribed unless all parties waive transcription. The new Rule provides for transcription only upon the request of one of the parties. The fact of the request is relevant to the exercise of the court’s discretion in determining who shall pay or share in paying for transcription. Confidentiality of the questions to be asked by a party who elects to serve written questions rather than participate personally in an oral deposition is preserved, by providing that such party may serve the written questions in a sealed envelope upon the party taking the deposition who shall then transmit them in the sealed envelope to the officer.

Rule 30(d) does not make any changes in regard to motions to terminate or limit examination except to add a cross-reference to Rule 37(a) (4) in regard to the award of expenses incurred in relation to the motion.

The provision in Rule 30(e) relating to the refusal of a witness to sign his deposition is tightened through insertion of a thirty-day time period.

The second paragraph added to Rule 30(f) (1) spells out the procedure for handling exhibits related to the deposition.

Explanation of Amendments — December 1, 1959

The last sentence of Rule 30(d) was added, for consistency with the next to the last sentence of Rule 30(b), to permit a single justice of the Supreme Judicial Court to limit or terminate examination during the taking of a deposition in an action pending before him.

Reporter’s Notes — December 1, 1959

This rule is based on Federal Rule 30, but with some changes. Subdivisions (b) and (d) are important checks against abuse of the liberal discovery procedures. There is a similar check with respect to Rules 31, 33 and 34, which incorporate these provisions by reference. Subdivision (b) applies before the taking of the deposition begins. Subdivision (d) offers protection while it is being taken; at this point an improper purpose may be more easily detected or demonstrated.

The reference in Rule 30(b) to “undue” expense and the last sentence of the subdivision are not in the federal rule and are inserted to emphasize that the rule should be administered in a way to afford adequate protection to parties and witnesses, particularly in cases involving small sums. The provision for charging the party taking the deposition with the travelling expenses of his opponent in appropriate cases is similarly not included in the federal rule, although it reflects the federal decisions. The language is taken from the New Mexico rule, as is also the provision that a party may be compelled to bring into the state a witness under his control for the purpose of having his deposition taken.

The provision in Rule 30(c) that the court may order the cost of transcription to be paid by one or some of, or apportioned among, the parties is not in the federal rule. It is taken from an unadopted recommendation of the Federal Advisory Committee made in 1955. It is designed to aid the court in policing the fairness of the use of the deposition machinery. For instance, a party wishing to take a brief deposition on a single vital issue might appropriately seek relief from paying the full cost of transcribing a lengthy examination by his opponent. Furthermore, when the party who took the deposition does not care to have it transcribed and the adverse party wants it, this rule would permit an order requiring the adverse party to bear the cost of transcription. There has been a conflict in the federal decisions as to the propriety of such an order under the present federal rule.

The attendance of a witness may be compelled by subpoena, but no subpoena is necessary to take the deposition of an adverse party. A notice of the taking, given to the attorney as provided by Rule 5(b), is sufficient. A party is not guilty of contempt for non-appearance unless he has been served with a subpoena, but the sanctions of Rule 37 may be invoked against him. Thus an adverse party in Houlton, San Francisco or Moscow can be notified to appear in Portland on a given date for a deposition. His attorney may seek a protective

order under Rule 30(b), but he cannot simply ignore the notice without risking dismissal or default under Rule 37(b).

Rule 30(e) deals with the mechanics of submitting the deposition to the witness for his examination, correction and signature. Cf. R.S.1954, Chap. 117, Sec. 13 (repealed in 1959). In practice these requirements are often waived.

Rule 30(f) is similar to R.S.1954, Chap. 117, Secs. 15 and 16 (repealed in 1959). It differs slightly from Federal Rule 30(f), following in this respect a 1959 amendment to the Minnesota rules. The change is merely for clarity.