Rule 28.Persons before whom depositions may be taken

Reporter’s Notes—2012 Amendment: V.R.C.P. 28(d), providing for depositions to be taken in Vermont for use in another jurisdiction, is amended to limit its applicability to depositions that are to be taken for use in civil actions in a U.S. district court or in proceedings in another country under that country’s laws. Promulgation of V.R.C.P. 45(f), incorporating the provisions of the Uniform Interstate Depositions and Discovery Act (UIDDA), on August 30, effective October 31, 2011, rendered the provisions of Rule 28(d) for depositions to be used in another state superfluous. The Uniform Act and V.R.C.P. 45(f), by their terms, apply only between state courts, not federal district courts sitting in states, and are not intended to apply to courts of foreign countries. See UIDDA, § 2, Comment, 13 ULA, Part II, 64 (Supp. 2011). See Reporter’s Notes to V.R.C.P. 45(f). In any event, resort to the Vermont rule will presumably not be necessary in the usual case, since Federal Rule 45(a)(2)(B) provides that a subpoena for a deposition is to issue from the court of the district where the deposition is to be taken.

Reporter’s Notes—1996 Amendment: Rules 28(a) and (b) are amended for conformity with Federal Rule 28, as amended in 1993. Rule 28(a)(1) carries forward the first sentence of former Rule 28, covering the taking of depositions within the state. Rule 28(a)(2) is taken from Federal Rule 28(a) but makes no change in practice from the provisions of former Rule 28(b) applicable to depositions outside Vermont but within the United States and its possessions. Rule 28(b) now applies solely to depositions taken within a foreign country. Its provisions are generally similar to those of former Rule 28(b) applicable in such situations, but, like the 1993 amendment of Federal Rule 28(b) from which it was taken, it “is intended to make effective use of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters and of any similar treaties that the United States may enter into in the future which provide procedures for taking depositions abroad.” Under the amended rule, “The party taking the deposition is ordinarily obliged to conform to an applicable treaty or convention if an effective deposition can be taken by such internationally approved means, even though a verbatim transcript is not available and testimony cannot be taken under oath.” Federal Advisory Committee’s Note to 1993 amendment of Federal Rule 28(b). “Letter of request” has been substituted for “letter rogatory” for consistency with the Hague Convention, but the change is merely formal. Rule 28(c) is amended to accommodate the simultaneous amendment of Rule 30(b)(4) permitting a deposition to be taken on oath administered by an attorney for one of the parties.

Reporter’s Notes—1982 Amendments: Rule 28(a) is amended as part of the series of amendments to the discovery rules following the recent amendments to the Federal Rules of Civil Procedure. See Reporter’s Notes—1982 Amendments to Rule 26. The amendment is identical to that made to the federal rule and is a clarification.

Reporter’s Notes: This rule is substantially identical to Maine Rule 28, as amended effective November 1, 1969. The Maine rule follows R.I. Rule 28 and is similar in many respects to Federal Rule 28. The rule is the equivalent of procedure under 12 V.S.A. §§ 1237, 1249- 1251 (now superseded); 1248. See also former County Court Rule 41. Rule 28(a) is similar to 12 V.S.A. § 1237, except that the rule specifies only notaries and justices of the peace as persons before whom depositions may be taken and leaves the court power to appoint other persons in special circumstances. Rule 28(b) makes the provisions of Federal Rule 28(b), providing for depositions in a foreign country, applicable to the taking of any deposition outside the state. The provisions of the federal rule were intended to be broad enough to accommodate all varieties of local law that might be applicable to the taking of a deposition. See federal Advisory Committee’s Note to 1963 Amendment to Rule 28, 3A Barron & Holtzoff, Federal Practice and Procedure 265 (Supp. 1969). The rule adds to prior Vermont practice the letter rogatory, insuring that the Vermont courts are equipped to meet any formality imposed by another state. Rule 28(c) is similar in effect to the third sentence of 12 V.S.A. § 1247 (now superseded). Rule 28(d) gives the Vermont courts power to bring the sanctions of the discovery rules to bear in behalf of a litigant in another state using a provision of that state’s law similar to Rule 28(b). The rule broadens the power conveyed to commissioners appointed by the authority of another state under 12 V.S.A. § 1248.