Deposition Testimony and Evidence

(A) Recorded depositions (1) Use of depositions. Recorded depositions are authorized by Civil Rule 30(B)(3). (2) Notice. The notice requirements of Civil Rule 30(B)(3) regarding the manner of recording, preserving, and filing depositions apply to recorded depositions. Notice is sufficient if it specifies the deposition is to be taken pursuant to the provisions of this rule. Persons authorized to take depositions. The officer before whom a recorded (3) deposition is taken shall be one of those persons enumerated in Civil Rule 28. (4) Date and time recording. A date and time generator shall be used to superimpose the year, month, day, hour, minute, and second over the video portion of the recording during the taking of the deposition. The total deposition time shall be noted on the outside of the videotape, disc, or other storage device. Objections. The officer shall keep a log of objections referenced to the time of (5) making each objection as superimposed on the video portion of the recording. If the deposition is transcribed, the log shall include the page of the transcript on which each objection occurs. (6) Copies of the deposition. Upon the request of a party, the officer shall provide a recording of the deposition at the conclusion of its taking. Upon the request of a party, the officer shall provide a copy of the deposition in the medium of videotape, disc, or other storage device or a written transcript of the deposition within a reasonable period of time. The requesting party shall bear the cost of the copy requested. Submission to witness. After a recorded deposition is taken, a recording of the (7) testimony shall be shown immediately to the witness for his examination, unless the examination is waived by the witness and the parties. If viewing is not waived by the witness, Civil Rule 30(E) shall govern the review process and timing for its completion. (8) Certification of original recorded deposition. The officer before whom the recorded deposition is taken shall cause a written certification to be attached to the original videotape, disc, or other storage device. The certification shall state the witness was fully sworn or affirmed by the officer and the videotape, disc, or other storage device is a true record of the testimony given by the witness. If the witness has not waived the right to a showing and examination of the recorded deposition, the witness shall also sign the certification. When an officer makes a copy or a transcription of the recorded deposition in any medium, the officer shall attach a written certification to the copy or transcription. The certification shall state the copy is a true record of the recorded testimony of the witness. Certification of edited recorded depositions. The officer who edits the original (9) recorded deposition shall attach a written certification to the edited copy of the recorded deposition. The certification shall state the editing complies with the rulings of the court and the original recorded deposition has not been affected by the editing process. (10) Filing where objections not made. Where objections are not made by a party or witness during the recorded deposition and, if pursuant to Civil Rule 30(F)(1) a party requests, or the court orders, that the deposition be filed with the court, the officer shall file the recorded deposition with the clerk of the court. (11) Filing where objections made. When a recorded deposition containing objections is filed with the court pursuant to Civil Rule 30(F)(1), the officer’s log of objections shall accompany it. A party may request the court rule upon the objections within fourteen days of the filing of the deposition or within a reasonable time as stipulated by the parties. In ruling upon objections, the court may view the recording in its entirety or view only those parts of the recording pertinent to the objections made. If the parties are not present at the time the court’s rulings are made, the court shall provide the parties with copies of its rulings on the objections and his instructions as to editing. (12) Editing alternatives. The original recording shall not be affected by any editing process. (a) In its order and editing instructions the court may do any of the following: (i) Release the recording to the officer with instructions to keep the original recording intact and make an edited copy of the recording that deletes all references to objections and objectionable material; Order the person showing the original recording at trial to suppress (ii) the objectionable audio portions of the recording; (iii) Order the person showing the original recording at trial to suppress the objectionable audio and video portions of the recording. (b) If the court uses the alternative in division (A)(12)(a)(i) of this rule, the officer shall cause both the original recording and the edited recording, each clearly identified, to be filed with the clerk of the court. If the court uses the alternative in division (A)(12)(a)(ii) of this rule, it shall, in jury trials, instruct the jury to disregard the video portions of the presentation when the audio portion is suppressed. If the court uses the alternative in division (A)(12)(a)(iii) of this rule, it shall, in jury trials, instruct the jury to disregard any deletions apparent in the playing of the recording. (13) Storage. Each court shall provide secure and adequate facilities for the storage of recordings. Inspection or viewing. Except upon order of the court and upon such terms as it (14) may provide, the recordings on file with the clerk of the court shall not be available for inspection or viewing after filing and prior to use at trial or disposition in accordance with this rule. Upon the request of a party under division (A)(3) of this rule, the clerk, without court order, may release the recording to the officer to allow the making of a copy of the recording. (15) Objections at trial. Objections should be made prior to trial, and all objections shall be made before actual presentation of the recording at trial. If an objection is made at trial that has not been waived pursuant to Civil Rule 32(D)(3) or previously raised and ruled upon, the objection shall be made before the recorded deposition is presented. The trial judge shall rule on objections prior to the presentation of the recording. If an objection is sustained, that portion of the recording containing the objectionable testimony shall not be presented. (B) Use of pre-recorded testimony at trial (1) Authority. Presenting pre-recorded testimony at trial may include testimony pre- recorded in-person or remotely, as authorized by Civil Rule 40. A recording is the exclusive medium of presenting testimony irrespective of the availability of the individual witness to testify in person. All testimony is recorded on videotape, disc, or other storage device and the limitations of Civil Rule 32 upon the use of depositions shall not apply. (2) Initiation of trial with pre-recorded testimony. By agreement of the parties and with the consent of the trial judge all or a portion of testimony and appropriate evidence may be presented via a recording. The trial judge may order the recording of all or a portion of testimony and evidence on videotape, disc, or other storage device in an appropriate case. In determining whether to order a trial by pre-recorded testimony, the trial judge, after consultation with counsel, shall consider the costs involved, the nature of the action, and the nature and amount of testimony. (3) Procedure. Divisions (A)(3) to (13) and (D) apply to trials by pre-recorded testimony. The sequence of taking the testimony of individual witnesses and the sequence of presentation of that testimony shall be at the option of the proponent. In ordering or consenting to the recording of all of the testimony on videotape, disc, or other storage device, the trial judge shall fix a date prior to the date of trial by which all pre-recorded testimony shall be filed with the clerk of the court. Objections. All objections shall be made and ruled upon in advance of the trial. (4) Objections may not be made during the presentation of the evidence. (5) Presence of counsel and trial judge. In jury trials, counsel for the parties and the trial judge are not required to be present in the courtroom when the pre-recorded testimony is played to the jury. If the trial judge leaves the courtroom during the playing of the recording, the judge shall admonish the jurors regarding their duties and responsibilities. In the absence of the judge, a responsible officer of the court shall remain with the jury. The trial judge shall remain within such proximity to the courtroom that the judge can be readily summoned. (C) Equipment (1) Standard. There are several recording formats used in the trial courts of this state. Proponents of pre-recorded testimony or evidence shall determine the format utilized by the trial court in which the recording is to be filed and shall make the recording in the appropriate format. If a party records testimony or evidence in a format that is not compatible with the trial court equipment, the party shall be responsible for the furnishing of reproduction equipment of institutional quality or for the conversion of the recording to the format used in trial court equipment, all of which shall be at the cost of the party and not chargeable as costs of the action. Each court shall provide for the availability of playback equipment. As may be appropriate, the court may purchase or lease equipment or make contract for the equipment on occasions of need. The court shall provide for the adequate training of an operator from the personnel of the court or for the services of a competent operator to operate the equipment when pre-recorded testimony or evidence is presented in court. (2) Minimum equipment. At a minimum, facilities for playback at trial shall consist of a videotape player and one monitor, having at least a fourteen-inch screen. Color facilities are not required. (3) Maintenance. The trial court shall take reasonable steps to ensure that the equipment is maintained within operating tolerances. The trial court shall provide for competent regular maintenance of equipment that is owned or leased by the court. (D) Costs; depositions (1) The expense of recording as a material shall be borne by the proponent. The reasonable expense of pre-recorded testimony, the expense of playing the (2) recording at trial, and the expense of playing the recording for the purpose of ruling upon objections shall be allocated as costs in the proceeding in accordance with Civil Rule 54. The expense of producing the edited version of the recording shall be costs in the (3) action, provided the expense of the videotape, disc, or other storage device, as a material, shall be borne by the proponent of the testimony. The expense of a copy of the recording shall be borne by the party requesting the (4) copy. (E) Disposition of recording filed with the court (1) Ownership. The videotape, disc, or other storage device used in recording testimony shall remain the property of the proponent of the testimony. The videotape, disc, or other storage device may be reused, but the proponent is responsible for submitting a recording of acceptable quality. (2) Release of recordings. (a) The court may authorize the clerk of the court to release the original recording and the edited recording to the owner of the videotape, disc, or other storage device upon any of the following: (i) The final disposition of the cause where no trial occurs; The expiration of the appeal period following trial, if no appeal is (ii) taken; (iii) The final determination of the cause, if an appeal is taken. If the testimony is recorded stenographically by a court reporter during the playing of the recording at trial, the videotape, disc, or other storage device may be returned to the proponent upon disposition of the cause following the trial. (b) The court shall order release by journal entry. Commentary (July 1, 1997)