Rule 28.Persons Before Whom Depositions May Be Taken

Rule 28(a) covers depositions taken within the United States or a territory or insular possession under United States dominion: the deponent's oath must be administered by someone authorized to give oaths under federal law or the law of the place where the deposition happens, or by a person the court specially appoints for that purpose. Rule 28(b) addresses depositions taken in a foreign country, which can proceed in any of three ways — on notice before someone authorized to administer oaths where the examination occurs, before a person the court commissions to administer the oath and take testimony, or under a letter rogatory addressed to the appropriate authority in the country involved. A commission or letter rogatory issues on application and notice, on terms that are just and appropriate, and there is no requirement to show that taking the deposition another way would be impractical or inconvenient before using either method — both can even be issued together in the right case. Evidence obtained through a letter rogatory is not excluded merely because it is not a verbatim transcript, was not given under oath, or otherwise departs from the requirements that apply to depositions taken within the United States.

Rule 28(c) protects the deposition process from a conflict of interest at its source: no deposition can be taken before a person who is a relative, employee, attorney, or counsel of any party, who is a relative or employee of a party's attorney or counsel, or who has a financial interest in the action. That disqualification applies regardless of where the deposition is taken, and it keeps the person administering the oath and recording the testimony independent of the parties and their counsel.