Rule 30.Depositions upon oral examination

Reporter’s Notes—2018 Amendment: Rules 30(b)(1) and (5) are amended to extend their 10- and 5-day time periods to 14 and 7 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—1996 Amendment: Rule 30 is amended to adapt provisions of the 1993 amendments of the federal rules to the Vermont rules. Rule 30(b)(4) is replaced by a series of lettered subparagraphs adapted in part from V.R.Cr.P. 15(d) and in part incorporating the language of Federal Rule 30(b)(2)-(4) as amended in 1993. (Existing V.R.C.P. 30(b)(2) and (3) are retained because they are necessary to V.R.C.P. 30(a), which has not been amended to conform to the 1993 federal amendments.) Rule 30(b)(4)(A) and (B) change former Rule 30(b)(4) by providing that a deposition is to be taken stenographically unless the party taking it sets forth another method, and that other parties may concurrently record a deposition by other means at their own expense. Subparagraph (A) combines the provisions of V.R.Cr.P. 15(d)(2) and (4), adding provisions concerning cost and transcription from Federal Rule 30(b)(2). Subparagraph (B) is taken virtually verbatim from V.R.Cr.P. 15(d)(3). It is similar in effect to Federal Rule 30(b)(3). Note that since leave of court is not required for nonstenographic recording, a party objecting to the form of recording, or seeking the imposition of conditions under the final sentence of Rule 30(b)(4)(A), must seek a protective order under Rule 26(c). Note also that, regardless of the method of recording, a transcript is required by the simultaneous amendment of Rule 32(c) if the deposition is to be offered in evidence. Rule 30(b)(4)(C), taken from Federal Rule 30(b)(4), permits the parties to agree upon the officer before whom the deposition is to be taken and provides safeguards to assure the integrity of a nonstenographic recording. The final sentence of former Rule 30(b)(4) is retained for consistency with the simultaneous amendment of Rule 30(e). Rule 30(b)(7) is amended to permit a deposition to be taken by remote electronic means such as closed-circuit satellite television. Rule 30(d)(1) is added to eliminate the problem that depositions may be prolonged by lengthy, if not leading, objections and resulting argument. Objections during a deposition should ordinarily be limited to those that would be waived under Rule 32(d)(3) if not timely made. Rule 32(b) provides that other objections may be made at trial. The second sentence of the paragraph is designed to eliminate another disruptive practice. Rule 30(d)(2) incorporates the power of the court under existing Rule 30(b)(3) to extend the time for a deposition if it has been delayed by inappropriate conduct. The rule also makes clear that, in addition, sanctions, including expenses incurred as a result of such delay, may be imposed, not only on a party or attorney, but on a nonparty witness. Rule 30(d)(3) is present Rule 30(d) with a minor verbal change for consistency with the amended federal rule. It permits sanctions for conduct like that prohibited by paragraph (1) if the effect is harassment, even though delay has not resulted. Rule 30(e) is amended to make clear the application of its provisions to nonstenographic depositions. If such a deposition is not transcribed, the necessary information and signature of the witness must appear in a separate writing. The amendment does not follow the 1993 amendment of Federal Rule 30(e) that eliminates review of the deposition and the requirement of signature except upon request and if changes are made. Rule 30(f) is amended to incorporate provisions of the 1993 amendments of Federal Rule 30(f) to assure the safe- keeping and recoverability of depositions, regardless of the method by which recorded. These provisions are necessary in light of the elimination of the requirement of filing in the simultaneous amendment of Rule 5(d). Of course, if the court orders the deposition to be filed under amended Rule 5(d) before it has been sent to the attorney, the officer under Rule 30(f)(1) should comply with that order.

Reporter’s Notes—1988 Amendment: Rule 30(f) is amended to conform to the 1982 amendment to Rule 5(d). If the court orders that discovery materials not be filed, the deposition should not be mailed to the clerk but should be mailed or delivered to the party who requested the deposition. That party should then file the necessary certificate under Rule 5(d).

Reporter’s Notes—1984 Amendment: Rule 30(b)(4) is amended and Rule 30(b)(7) is added to provide more specific procedures for nonstenographic depositions. These amendments make this rule virtually identical to the federal rule as it was amended, effective August 1, 1980, as part of the attempt to reform the discovery rules. See Reporter’s Notes—1982 Amendment to Rule 26 for the scope, purpose and history of the federal rules amendments. These amendments also apply in District Court by incorporation through the applicable District Court Civil Rule. Although the right of the parties to stipulate to the use of a nonstenographic deposition has been implicit in Rule 29, the amendment to Rule 30(b)(4) makes it explicit. A new last sentence authorizes a writing to accompany the nonstenographic deposition to record any of the objections made pursuant to subdivision (c), the signature of the deponent or the signature of the officer as provided in subdivision (e), and the certification of the officer pursuant to subdivision (f). The amendment to the third sentence requires the stipulation to specify the person before whom the deposition is to be taken in order to encourage the use of the recording technician as the deposition officer. See Advisory Committee Note to 1980 Amendment to F.R.C.P. 30 in 85 F.R.D. 521, 529 (1980). The addition of Rule 30(b)(7) allows telephone depositions by order of the court as well as by stipulation of the parties. The last sentence is added to make clear that the place of a deposition taken over the telephone is where the deponent is answering the questions, not where the questions are propounded.

Reporter’s Notes—1983 Amendment: This amendment substitutes a reference to the Rules of Evidence for a reference to Rule 43(b), which is being abrogated by a simultaneous amendment. The subject matter of Rule 43(b), as well as other matter pertinent to the examination of witnesses, is covered in a number of places in the Rules of Evidence. See, e.g., Evidence Rules 607, 611(c), 501-13.

Reporter’s Notes—1982 Amendment: Rule 30(f)(1) 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. The change in the second sentence is to dispense with filing of depositions where, pursuant to Rule 5(d), the court orders that discovery materials not be filed except for use in the proceeding. The changes in the second paragraph clarify the right of a person who produces materials at a deposition to offer copies for marking and annexation to the deposition. The copies are a “substitute” for the originals.

Reporter’s Notes: This rule is virtually identical to Federal Rule 30, as amended in 1970. The rule does not differ in essence from 12 V.S.A. §§ 1231, 1233, 1239, 1245- 1247 (now superseded). Those statutes were based upon the provisions of former Federal Rules 26, 30, that have been combined in amended Rule 30. Note that, as elsewhere in the discovery rules, any Superior Judge is empowered to issue most orders necessary in the conduct of the proceedings, including orders under Rule 30(d) terminating or limiting the examination. See Reporter’s Notes to Rule 26. Costs on depositions are covered in Rule 54(g). Rule 30(a) is similar to 12 V.S.A. § 1231 (now superseded), which was taken from former Federal Rule 26(a), upon which the new rule is based. The subdivision applies only to depositions upon oral examination, however. All provisions concerning depositions upon written questions (formerly “written interrogatories”) are now gathered in Rule 31. The principal change in the rule is in the requirement of leave of court for taking a deposition. Following the former federal rule, the Vermont state required leave of court if the plaintiff served notice of taking a deposition within 42 days after commencement of the action—that is, the date of the writ. In fact, since the writ could, under 12 V.S.A. § 771, be served at any time within 21 days after the date thereof, the period during which leave was required might be as short as 21 days. See Reporter’s Note to Rule 12. Because the purpose of the provision is to insure that defendant has the opportunity to obtain counsel, the period has been changed to 30 days running from service—the defendant’s first opportunity to learn of the suit. Since under Rule 12 defendant must answer within 20 days after service, the 30 days assures that he will be represented. Note also that the former statute required leave if notice of taking was served within the period, whereas the rule requires leave only if the actual taking is to be within the 30 days. This change recognizes that counsel is needed at the taking, not at the time of receipt of notice. There are two exceptions to the requirement of leave. (1) If defendant himself has sought discovery, he is presumably represented and the reason for the requirement vanishes. (2) Plaintiff may give special notice of the early taking of a deposition under Rule 30(b)(2). Rule 30(b)(1) is similar to 12 V.S.A. § 1239 (now superseded), which was taken with some variations from former Federal Rule 30, the source of the new rule. There is no provision in the rule for service of the notice, because Rule 5 supplies that procedure. The new Vermont rule varies from Federal Rule 30(b)(1) by retaining the 10-days notice provision of the former statute in lieu of the “reasonable notice” of the federal rule. The provision for shortening the time for good cause shown is taken from Maine Rule 30(a). Rule 30(b)(2) is taken from the former admiralty practice of permitting de bene esse depositions at any time without leave of court when the deponent is about to become unavailable. Other parties are protected by a requirement that the notice be signed by plaintiff’s attorney subject to the sanctions of Rule 11 and by a further provision that the deposition may not be used if an adverse party is unable to obtain counsel with due diligence. Rule 30(b)(4) permits, in the interests of economy, recording of the testimony by mechanical, electronic, photographic, or other means. A court order is required, however, to insure the accuracy of the method chosen. Rule 30(b)(5) is intended to make clear that production of documents and other things needed as a basis for the examination may be requested in the notice of taking of a deposition of a party, just as a subpoena duces tecum under Rule 45(d) may be used for a nonparty deponent. Rule 34, rather than this rule, should be used where the primary purpose is inspection of the documents rather than examination of the witness. The paragraph, taken from Maine Rule 30(b)(5) as amended effective October 1970, differs from the federal rule, which incorporates Rule 34 without making clear what time limits are intended. The Vermont rule is intended to operate within the minimum 10 days’ notice required under Rule 30(b)(1). Rule 30(b)(6) simplifies the procedure for obtaining depositions where a corporation or other organization is involved by permitting the organization to be named as the deponent and to select the actual person to testify. Of course, the deposing party may obtain the depositions of individual corporate officers or employees by notice and subpoena to them as in the past. Federal Rule 30(b)(6) was amended March 1, 1971, effective July 1, 1971, to make clear that the provision applied to a subpoena to a nonparty as well as to a notice to a party. Federal Advisory Committee’s Note to 1971 Amendment to Rule 30. As a matter of common sense, the Vermont rule should be so construed even in the absence of such an amendment. Rule 30(c) is similar to 12 V.S.A. §§ 1233, 1245 (now superseded), which were based upon former Federal Rules 26(c) and 30(c), the sources of the new rule. The rule provides for transcription of the testimony only if a party requests it, rather than on waiver by all parties. Other changes conform to changes in other provisions of the rules. Rule 30(d) is virtually identical to 12 V.S.A. § 1246 (now superseded), which was similarly identical to former Federal Rule 30(d). Rules 30(e) and (f) are more complex than 12 V.S.A. § 1247 (now superseded), which covered the same ground. A principal difference is that Rule 30(e) permits the filing and use of a deposition not signed by the witness within 10 days after its submission to him, subject to review by the court on motion to suppress. The 30 days of the federal rule has been shortened in recognition of the realities of Vermont practice. In view of the provisions of Rule 28(c), the prohibition of the former statute against writing of a deposition by a person interested in the cause has been omitted. Rule 30(f)(1), providing for the handling of documents and other tangible evidence, is new both to the federal rule and Vermont practice. The requirement of Federal Rule 30(f)(3) for notice of filing by the party taking the deposition is omitted as unnecessary and burdensome. Rule 30(g), providing for sanctions against a deposing party who fails to attend the taking or cause the witness to attend, has no exact equivalent in prior Vermont law, although the broad provisions of 12 V.S.A. § 1267 (now superseded) might have been construed to authorize such sanctions. The provision is intended to protect the interests of other parties who are inconvenienced by or rely upon the initiation of discovery. Costs to the deposing party are covered in Rule 54(g). The provision of 12 V.S.A. § 1240 (now superseded) for dispensing with notice when the adverse party is a nonresident and has no attorney within the state has not been carried forward in the rule. Such a procedure would be inconsistent with the notice provisions of Rule 5, which apply to service of a notice under Rule 30(b)(1). Moreover, use of such a deposition would deprive the adverse party of the right of cross-examination and might well violate due process.