The 30.02(6), or 30(b)(6), Witness: Proper Notice, Preparation, and Deposition Techniques

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1 The 30.02(6), or 30(b)(6), Witness: Proper Notice, Preparation, and Deposition Techniques Materials By: James Bryan Moseley Moseley & Moseley, Attorneys At Law 237 Castlewood Drive, Suite D Murfreesboro, Tennessee (615)

2 30.02(6) and 30(b)(6) Depositions In litigation, the deposition is one of the principal discovery tools available to the litigants. In many cases, the individuals to be deposed will be easily identifiable. If a party is a person, then that person can be deposed to learn what he or she knows about the matters being litigated. If the party is a corporation, non-corporate entity, or governmental entity, then there is no person to depose. The solution is a Rule 30.02(6) or Rule 30(b)(6) deposition. In Tennessee, Rule 30.02(6) governs depositions of non-persons. The corresponding Federal Rule is 30(b)(6). The text of each rule is listed below along with other pertinent rules and law. Tennessee Rules of Civil Procedure Rule 28 - Persons Before Whom a Deposition May be Taken Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. In videotaped depositions taken pursuant to Rule 30.02(4)(B), any lawyer or lawyer's agent can operate the equipment In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may

3 designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed To the Appropriate Authority in (here name the country). Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules See T.C.A Rule 30 - Depositions Upon Oral Examination After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under Rule 4.05, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in Rule 30.02(2). The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes (1) A party desiring to take the deposition of any person upon oral examination shall give notice in writing to every other party to the action. The notice shall be served on the other parties at least five days beforehand when the deposition is to be taken in the county in which suit is pending. When the deposition is to be taken out of the county, at least seven days' notice shall be given. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. (2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the state of Tennessee and will be unavailable for examination unless the person's deposition is taken before expiration of the 30-day period, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and this signature constitutes a certification that to the best of the attorney's knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the

4 certification. If a party shows that when served with notice under this subdivision (2) the party was unable through the exercise of diligence to obtain counsel to represent him or her at the taking of the deposition, the deposition may not be used against the party. (3) The court may for cause shown enlarge or shorten the time for taking the deposition. (4) (A) The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the stipulation or order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at the party's own expense. Any objections under Rule 30.03; any changes made by the witness and his or her signature identifying the deposition as the witness's own, or the statement of the officer that is required if the witness does not sign, as provided in Rule 30.05; and the certification of the officer required by Rule shall be set forth in writing to accompany a deposition recorded by other than stenographic means. (B) Notwithstanding paragraph (A), any deposition may be recorded by audio-visual means without a stenographic record. Any party may make at the party's own expense a simultaneous stenographic or audio record of the deposition. Upon a party's request and own expense, any party is entitled to an audio or audio-visual copy of the audio-visual recording. The audio-visual recording is an official record of the deposition. A transcript prepared by a court reporter is also an official record of the deposition. On motion the court, for good cause, may order the party taking, or who took a deposition by audio-visual recording to furnish, at the party's expense, a transcript of the deposition. Any lawyer or lawyer's agent can operate the equipment. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used. The notice for taking an audio-visual deposition and the subpoena for attendance at that deposition must state that the deposition will be recorded by audio-visual means and whether a simultaneous record will be made. The following procedure must be observed in recording an audio-visual deposition: (i) The deposition must begin with an oral or written statement on camera which includes:

5 (a) (b) (c) (d) (e) (f) (g) The operator's name and business address; The name and business address of the operator's employer; The date, time and place of the deposition; The caption of the case; The name of the witness; The party on whose behalf the deposition is being taken; and Any stipulations by the parties. (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) Counsel shall identify themselves on camera. The oath must be administered to the witness on camera. If the length of a deposition requires the use or more than one recording unit, the end of each unit and the beginning of each succeeding unit must be announced on camera. At the conclusion of a deposition, a statement must be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulations made by counsel concerning the custody of the audio-visual recording and exhibits or other pertinent matters. Depositions must be indexed by a visible time recording device that displays hours, minutes and seconds. An objection must be made as in the case of stenographic depositions. If the court issues an editing order, the original audio-visual recording must not be altered. Unless otherwise stipulated by the parties, the original audio-visual recording of a deposition, any copy edited pursuant to an order of the court, and exhibits must be filed forthwith with the clerk of the court. (5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request. (6) A party may in the party s notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (6) does not preclude taking a deposition by any other procedure authorized in these rules.

6 (7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. Nothing herein shall preclude any party from being represented in person or by counsel at the site of the deponent Examination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with Rule 30.02(4). If requested by one of the parties, the testimony shall be transcribed. All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. A deponent may be instructed not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate or limit examination. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37.01(4) apply to the award of expenses incurred in relation to the motion When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons

7 given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 30 days of its submission, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 32.04(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part Once Rule is satisfied, the officer shall deliver the deposition plus any exhibited documents and things to the party who requested taking of the deposition. Upon payment of reasonable charges, the officer shall furnish copies to any party or to the deponent. If the deposition contains material relevant to a hearing, the party who requested the taking of the deposition shall have it present in the courtroom along with exhibited documents and things on the day of the hearing unless otherwise stipulated. If any portion is introduced, T.R.Evid shall govern. If a party files a deposition for any purpose, the party filing the deposition shall give notice thereof to all other parties at the time of filing (1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by such other party and his or her attorney in attending, including reasonable attorney's fees. (2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because he or she expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by the other party and his or her attorney in attending, including reasonable attorney's fees. Rule 31 - Depositions upon Written Questions After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

8 A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with provisions of Rule 30.02(6). Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rules 30.03, 30.05, and 30.06, to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by the officer When the deposition is filed the party taking it shall promptly give notice thereof to all other parties. Rule 32 - Use of Depositions in Court Proceedings At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Tennessee Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof in accordance with any of the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30.02(6) or to testify on behalf of a public or private corporation, partnership or association, governmental agency or individual proprietorship which is a party may be used by an adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by

9 any party for any purpose if the court finds that the witness is unavailable as defined by Tennessee Rule of Evidence 804(a). But depositions of experts taken pursuant to the provisions of Rule 26.02(4) may not be used at trial except to impeach in accordance with the provisions of Rule 32.01(1). (4) If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction at that time of any other part which ought in fairness to be considered contemporaneously with it. Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken. When an action in any court of Tennessee, of the United States, or of any other state has been dismissed and an action involving the same subject matter is afterwards brought, all depositions lawfully taken in the former action may be used in the latter against any party who has both an opportunity and similar motive to develop the testimony at the prior deposition by direct, cross, or redirect examination. A deposition previously taken may also be used as permitted by the Tennessee Rules of Evidence Subject to the provisions of Rule and Rule 32.04(3), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying A party does not make a person the party's own witness for any purpose by taking the person's deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under Rule 32.01(2). At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party (1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (3) As to Taking of Deposition. (A). Objections to the competency of a witness or to the competency,

10 relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (B). Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition. (C). Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized. (4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. Rule 37 - FAILURE TO MAKE OR COOPERATE IN DISCOVERY: SANCTIONS A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: (1) APPROPRIATE COURT. An application for an order to a party or to a deponent who is not a party, may be made to the court in which the action is pending. (2) MOTION. If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30.02(6) or 31.01, or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

11 If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule (3) EVASIVE OR INCOMPLETE ANSWER. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. (4) AWARD OF EXPENSES OF MOTION. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner If a deponent; a party; an officer, director, or managing agent of a party; or, a person designated under Rule 30.02(6) or to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Rule or Rule 35, or if a party fails to obey an order entered under Rule 26.06, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

12 (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (E) Where a party has failed to comply with an order under Rule requiring the party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this rule, unless the party failing to comply shows that he or she is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust If a party or an officer, director, or managing agent of a party or a person designated under Rule 30.02(6) or to testify on behalf of a party fails (1) to appear before the officer who is to take his or her deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of Rule In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule Rule 45 - Subpoena (1) A subpoena for taking depositions may be issued by the clerk of the court in which the action is pending. If the subpoena commands the person to

13 whom it is directed to produce designated books, papers, documents, electronically stored information, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26.02, the subpoena will be subject to the provisions of Rules 30.02, 37.02, 45.02, and A deposition subpoena for testimony or subpoena for production of documentary evidence also must state in prominently displayed, bold-faced text: The failure to serve an objection to this subpoena within twenty-one days after the day of service of the subpoena waives all objections to the subpoena, except the right to seek the reasonable cost for producing books, papers, documents, electronically stored information, or tangible things. (2) A resident of the state may be required to give a deposition only in the county where the person resides or is employed or transacts his or her business in person, or at such other convenient place as is fixed by an order of the court. Tennessee Code Deponents exempt from subpoena to trial but subject to subpoena to deposition -- Award of fees and expenses if court grants motion to quash. (a) (b) Deponents exempt from subpoena to trial but subject to subpoena to a deposition are: (1) An officer of the United States; (2) An officer of this state; (3) An officer of any court or municipality within the state; (4) The clerk of any court of record other than that in which the suit is pending; (5) A member of the general assembly while in session, or clerk or officer thereof; (6) A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney; (7) A jailer or keeper of a public prison in any county other than that in which the suit is pending; and (8) A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided in title 68, chapter 11, part 4, for the production of hospital records pursuant to a subpoena duces tecum. If the court grants a motion to quash a subpoena issued pursuant to subsection (a), the court may award the party subpoenaed its reasonable attorney's fees and expenses incurred in defending against the subpoena.

14 General sessions cases. (a) (b) Discovery pursuant to Rules of the Tennessee Rules of Civil Procedure, excluding physical and mental examinations under Rule 35 of such rules, may be taken in all civil cases pending in the courts of general sessions in the discretion of the court after motion showing both good cause and exceptional circumstances and pursuant to an order describing the extent and conditions of such discovery. Depositions of custodians of hospital and medical records may be taken in all cases pending before the judges of the courts of general sessions, under the same rules, regulations, and restrictions as in cases pending in the courts of record Commissions to take depositions. Any court of record, or any clerk thereof, may issue commissions to take depositions Persons before whom depositions to be taken. Depositions taken in this state that are to be used in its courts shall be taken before: (1) A hearing examiner; (2) A judge, clerk, commissioner, or official reporter of a court; (3) A licensed court reporter; (4) A notary public; or (5) Before other persons and under other circumstances authorized by law Persons before whom depositions not to be taken -- Disclosure of prohibited relationship -- Video recording by lawyer or lawyer's agent -- Election to void deposition. (a) Unless all of the parties have entered into a written stipulation otherwise pursuant to Rule 29 of the Tennessee Rules of Civil Procedure, a deposition shall not be taken before a person who is: (1) A party to the action or an attorney for one (1) of the parties; (2) A relative, including a spouse of one (1) of the parties or of an attorney for one (1) of the parties; (3) An employee of one (1) of the parties or of an attorney for one (1) of the parties. As used in this subdivision (a)(3), "employee" includes a person who has a contractual relationship with a person or entity interested in the outcome of the litigation, including anyone who may ultimately be responsible for payment to provide reporting or other court services, and a person who is employed part-time or full-time under contract or otherwise by

15 a person who has a contractual relationship with a party to provide reporting or other court services; provided, however, that this subdivision (a)(3) shall not restrict in any way the ability of an attorney or a pro se litigant to hire court reporting services on a case-by-case basis in any case where the attorney is not a party, nor restrict an attorney from reimbursement for such court reporting services; (4) Someone who has, or has had during the past two (2) years, a sexual relationship with one (1) of the parties or with an attorney for one (1) of the parties; or (5) Someone with a financial interest in the action or its outcome. (b) (1) The person before whom a deposition is to be taken shall disclose to the parties in a timely fashion the existence of any facts known to the person that are relevant to factors set forth in subsection (a). (2) A person commits a Class C misdemeanor who takes a deposition and knowingly fails or refuses to disclose any facts required by subdivision (b)(1). (c) Notwithstanding this section, if a videotaped deposition has been agreed to or ordered by the court pursuant to Rule 30 of the Tennessee Rules of Civil Procedure, any lawyer or lawyer's agent may operate the video equipment pursuant to Rules and 30.02(4)(B). (d) (1) A deposition taken by a person described in subsection (a) is voidable at the election of any party unless: (A) After compliance with subsection (b), the parties have entered into a stipulation pursuant to Rule 29 of the Tennessee Rules of Civil Procedure; (B) An order has been entered pursuant to Rule 30.02(4)(A) of the Tennessee Rules of Civil Procedure; or (C) The party attempting to void the deposition has violated this section directly or through a related person described in subsection (a). (2) An election to void a deposition pursuant to this section shall be made within thirty (30) days of discovery of the violation of this section. (e) This section shall not apply to contracts for court reporting services for the courts, agencies or instrumentalities of the United States or the state of Tennessee Person forbidden to take deposition pursuant to not to record or transcribe any hearing concerning action. Any person forbidden to take a deposition in an action pursuant to shall not record or transcribe for submission to any court or administrative tribunal any hearing before any court or administrative agency concerning the action.

16 Federal Rules of Civil Procedure Rule 28 - Persons Before Whom Depositions May Be Taken (a) WITHIN THE UNITED STATES. (1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before: (A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or (B) a person appointed by the court where the action is pending to administer oaths and take testimony. (2) Definition of Officer. The term officer in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a). (b) IN A FOREIGN COUNTRY. (1) In General. A deposition may be taken in a foreign country: (A) under an applicable treaty or convention; (B) under a letter of request, whether or not captioned a letter rogatory ; (C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or (D) before a person commissioned by the court to administer any necessary oath and take testimony. (2) Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued: (A) on appropriate terms after an application and notice of it; and (B) without a showing that taking the deposition in another manner is impracticable or inconvenient. (3) Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed To the Appropriate Authority in [name of country]. A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken. (4) Letter of Request Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States. (c) DISQUALIFICATION. A deposition must not be taken before a person who is any party s relative, employee, or attorney; who is related to or employed by any party s attorney; or who is financially interested in the action.

17 Rule 30 - 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 provided in Rule 30(a)(2). The deponent s attendance may be compelled by subpoena under Rule 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 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 Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take the deposition before the time specified in Rule 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 known, the deponent s name and 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 Rule 34 to produce documents and tangible things at the deposition. (3) Method of Recording. (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 be recorded by audio, 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

18 testimony in addition to that specified in the original notice. That party bears the expense of the 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 Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions. (5) Officer s Duties. (A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes: (i) the officer s name and business address; (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; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i) (iii) at the beginning of each unit of the recording medium. The deponent s and attorneys appearance or demeanor must not be distorted through recording techniques. (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. (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with 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. A subpoena must advise a nonparty organization of its duty to make this designation. 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.

19 (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 Rule 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. (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 the examination 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 Rule 30(d)(3). (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 questions and record the answers verbatim. (d) DURATION; SANCTION; MOTION TO TERMINATE OR LIMIT. (1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 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. (2) Sanction. The court may impose an appropriate sanction including 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. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

20 (B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending. (C) Award of Expenses. Rule 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 Rule 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 accurately records the witness s testimony. The 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 protect it against loss, destruction, tampering, or deterioration. (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 all parties a fair opportunity to verify the copies by comparing them with the originals; or (ii) give all parties a fair opportunity to inspect and copy the originals after they are marked in which event the originals

21 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 attached to the deposition pending final disposition of the case. (3) Copies of the Transcript or Recording. Unless otherwise stipulated or ordered by 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. A party who files the deposition must promptly notify all other parties of the filing. (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. Rule 31 - Depositions by Written Questions (a) WHEN A DEPOSITION MAY BE TAKEN. (1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent s attendance may be compelled by subpoena under Rule 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 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 Rule 30 by the plaintiffs, or by the defendants, or by the third-party defendants; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take a deposition before the time specified in Rule 26(d); or (B) if the deponent is confined in prison.

22 (3) Service; Required Notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent s name and 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. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken. (4) Questions Directed to an Organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with Rule 30(b)(6). (5) Questions from Other Parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The court may, for good cause, extend or shorten these times. (b) DELIVERY TO THE OFFICER; OFFICER S DUTIES. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (f) to: (1) take the deponent s testimony in response to the questions; (2) prepare and certify the deposition; and (3) send it to the party, attaching a copy of the questions and of the notice. (c) NOTICE OF COMPLETION OR FILING. (1) Completion. The party who noticed the deposition must notify all other parties when it is completed. (2) Filing. A party who files the deposition must promptly notify all other parties of the filing. Rule 32 - Using Depositions in Court Proceedings (a) USING DEPOSITIONS. (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions: (A) the party was present or represented at the taking of the