Rule 28. Persons before whom depositions may be taken. - North Carolina Statutes

Rule 28. Persons before whomdepositions may be taken.

(a)        Within the UnitedStates. – Within the United States or within a territory or insular possessionsubject to the dominion of the United States, depositions shall be taken beforea person authorized to administer oaths by the laws of this State, of theUnited States or of the place where the examination is held, or before a personappointed by the court in which the action is pending. A person so appointedhas power to administer oaths and take testimony.

(b)        In foreigncountries. – Depositions may be taken in a foreign country:

(1)        Pursuant to anyapplicable treaty or convention;

(2)        Pursuant to a letterof request, whether or not captioned a letter rogatory;

(3)        On notice before aperson authorized to administer oaths in the place where the examination isheld, either by the law thereof or by the law of the United States; or

(4)        Before a personcommissioned by the court, and a person so commissioned shall have the power byvirtue of his commission to administer any necessary oath and take testimony. Acommission or a letter of request shall be issued on application and notice andon terms that are just and appropriate. It is not requisite to the issuance ofa commission or a letter of request that the taking of the deposition in anyother manner is impracticable or inconvenient; and both a commission and aletter of request may be issued in proper cases. A notice or commission maydesignate the person before whom the deposition is to be taken either by nameor descriptive title. A letter of request may be addressed "To theAppropriate Authority in (here name the country)." When a letter ofrequest or any other device is used pursuant to any applicable treaty orconvention, it shall be captioned in the form prescribed by that treaty orconvention. Evidence obtained in response to a letter of request need not beexcluded merely because the testimony was not taken under oath, or any similardeparture from the requirements for depositions taken within the United Statesunder these rules.

(c)        Disqualificationfor interest. – Unless the parties agree otherwise by stipulation as providedin Rule 29, no deposition shall be taken before a person who is any of thefollowing:

(1)        A relative,employee, or attorney of any of the parties;

(2)        A relative oremployee of an attorney of the parties;

(3)        Financiallyinterested in the action; or

(4)        An independentcontractor if the contractor or the contractor's principal is under a blanketcontract for the court reporting services with an attorney of the parties,party to the action, or party having a financial interest in the action.Notwithstanding the disqualification under this rule, the party desiring totake the deposition under a stipulation shall disclose the disqualification inwriting in a Rule 30(b) notice of deposition and shall inform all parties tothe litigation on the record of the existence of the disqualification underthis rule and of the proposed stipulation waiving the disqualification. Anyparty opposing the proposed stipulation as provided in the notice of depositionshall give timely written notice of his or her opposition to all parties.

For the purposes of this rule,a blanket contract means a contract to perform court reporting services over afixed period of time or an indefinite period of time, rather than on a case bycase basis, or any other contractual arrangement which compels, guarantees,regulates, or controls the use of particular court reporting services in futurecases.

Notwithstanding any otherprovision of law, a person is prohibited from taking a deposition under anycontractual agreement that requires transmission of the original transcriptwithout the transcript having been certified as provided in Rule 30(f) by theperson before whom the deposition was taken.

Notwithstanding the provisionsof this subsection, a person otherwise disqualified from taking a depositionunder this subsection may take a deposition provided that the deposition istaken by videotape in compliance with Rule 30(b)(4) and Rule 30(f), and thenotice for the taking of the deposition states the name of the person beforewhom the deposition will be taken and that person's relationship, if any, to aparty or a party's attorney, provided that the deposition is also recorded bystenographic means by a nondisqualified person.

(d)        Depositions to beused outside this State. –

(1)        A person desiring totake depositions in this State to be used in proceedings pending in the courtsof any other state or country may present to a judge of the superior ordistrict court a commission, order, notice, consent, or other authority underwhich the deposition is to be taken, whereupon it shall be the duty of thejudge to issue the necessary subpoenas pursuant to Rule 45. Orders of the characterprovided in Rules 30(b), 30(d), and 45(b) may be made upon proper applicationtherefor by the person to whom such subpoena is directed. Failure by any personwithout adequate excuse to obey a subpoena served upon him pursuant to thisrule may be deemed a contempt of the court from which the subpoena issued.

(2)        The commissionerherein provided for shall not proceed to act under and by virtue of hisappointment until the party seeking to obtain such deposition has depositedwith him a sufficient sum of money to cover all costs and charges incident tothe taking of the deposition, including such witness fees as are allowed towitnesses in this State for attendance upon the superior court. From suchdeposit the commissioner shall retain whatever amount may be due him forservices, pay the witness fees and other costs that may have been incurred byreason of taking such deposition, and if any balance remains in his hands, heshall pay the same to the party by whom it was advanced. (1967, c. 954, s. 1; 1975, c.762, s. 2; 1995, c. 389, s. 4; 1999‑264, s. 1; 2001‑379, s. 4.)