Depositions by Oral Examination

(a) When a Deposition May Be Taken. (1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as in RCFC 30(a)(2). The provided deponent’s attendance may be compelled by subpoena under RCFC 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with RCFC 26(b)(1) and (2): (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or RCFC 31 by the plaintiffs, or by the defendant, or by the third-party defendants; (ii) the deponent has already been deposed in the case; or the (iii) the party seeks to take the deposition before time specified in RCFC 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or (B) if the deponent is confined in prison. (b) Notice of the Deposition; Other Formal Requirements. (1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if the deponent’s name and known, address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. (2) Producing Documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena must be listed in the notice or in an attachment. The notice to a party deponent may be accompanied by a request under RCFC 34 to produce documents and tangible things at the deposition. (3) Method of Recording. be by (A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may audio, recorded audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition. (B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony that in addition specified in the original notice. That the party bears the expense of additional record or transcript unless the court orders otherwise. (4) By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and RCFC 28(a) and 37(b)(1), the deposition takes place where the questions. the deponent answers to (5) Officer’s Duties. stipulate otherwise, (A) Before the Deposition. Unless the parties a deposition must be conducted before an officer appointed or designated under RCFC 28. The officer must begin the deposition with an on-the- record statement that includes: 47 RCFC 30 (i) the officer’s business address; name and (ii) the date, time, and place of the deposition; (iii) the deponent’s name; (iv) the officer’s administration of the oath or affirmation to the deponent; and (v) the identity of all persons present. (B) Conducting the Deposition; the If Avoiding Distortion. recorded is deposition nonstenographically, the officer must repeat the items in RCFC 30(b)(5)(A)(i)–(iii) at the beginning the recording of each unit of medium. The and attorneys’ appearance or demeanor must not be distorted through recording techniques. deponent’s (C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters. an describe with corporation, association, (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a a public or private partnership, a governmental agency, or other entity and must reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the is served, and notice or subpoena continuing as necessary, the serving party and the organization must confer in the number and good faith about description for examination and the identity of each person the organization will designate to the matters of testify. A subpoena must advise a nonparty organization of its duty to make this designation and to confer with the serving party. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. (c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions. (1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under RCFC 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer. the (2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under RCFC 30(d)(3). examination (3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those the answers questions and verbatim. record (d) Duration; Sanction; Motion to Terminate or Limit. RCFC 30 cont. 48 (1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with RCFC 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. sanction—including (2) Sanction. The court may impose an appropriate the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent. (3) Motion to Terminate or Limit. (A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order. (B) Order. The court may order that the deposition be terminated or may its scope and manner as limit provided If in RCFC 26(c). terminated, the deposition may be resumed only by order of the court. (C) Award of Expenses. RCFC 37(a)(5) applies to the award of expenses. (e) Review by the Witness; Changes. (1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. (2) Changes Indicated in the Officer’s Certificate. The officer must note in the certificate prescribed by RCFC 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period. (f) Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing. (1) Certification and Delivery. The officer must certify in writing that the witness was duly sworn and that the deposition the witness’s accurately testimony. certificate must accompany the record of the deposition. Unless the court orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked “Deposition of [witness’s name]” and must promptly send it to the attorney who arranged for the transcript or recording. The attorney must store it under conditions that will loss, destruction, it against protect tampering, or deterioration. records The (2) Documents and Tangible Things. (A) Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party’s request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may: (i) offer copies to be marked, attached to the deposition, and then used as originals—after giving fair opportunity to verify the copies by comparing them with the originals; or parties all a (ii) give all parties a fair opportunity to inspect and copy the originals after they are marked—in which event the originals may be used as if attached to the deposition. (B) Order Regarding the Originals. Any party may move for an order that the originals be the deposition pending final disposition of the case. attached to (3) Copies of the Transcript or Recording. Unless otherwise stipulated or ordered by 49 RCFC 30 cont. the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent. (4) Notice of Filing. [Not used.] (g) Failure to Attend a Deposition or Serve a Subpoena; Expenses. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney’s fees, if the noticing party failed to: (1) attend and proceed with the deposition; or (2) serve a subpoena on a nonparty deponent, who consequently did not attend. (As revised and reissued May 1, 2002; as amended Nov. 3, 2008, Aug. 1, 2016, Aug. 2, 2021.) Rules Committee Notes 2002 Revision RCFC 30 parallels the structure and content of its FRCP counterpart. The limited number of differences between the two rules reflects those necessary for compatibility with the jurisdiction and other rules of the court. 2008 Amendment The language of RCFC 30 has been amended to conform to the general restyling of the FRCP. 2016 Amendment RCFC 30 has been amended in accordance with the corresponding changes to FRCP 30 that became effective December 1, 2015. 2021 Amendment in RCFC 30(b)(6) has been amended accordance with the corresponding changes to FRCP 30(b)(6) that became effective December 1, 2020.