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Massachusetts Domestic Relations Procedure Rule 30: Depositions Upon Oral Examination

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(a) When Depositions May Be Taken. 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: (i) 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(e) (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 subdivision (b)(2) of this rule); (ii) (deleted); (iii) (deleted); (iv) there has been a hearing before a master; or (v) (deleted). The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison or a minor child may be taken only by leave of court on such terms as the court prescribes.

(b) Notice of Examination: General Requirements; Special Notice; Non- stenographic Recording; Production of Documents and Things; Deposition of Organization

(1) A party desiring to take the deposition of any person upon oral examination shall give at least seven days' notice in writing to every other party to the action. 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 him or the particular class or group to which he 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. Identical to Mass.R.Civ.P. 30(b)(1)

(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 county where the action is pending and more than 100 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage abroad, and will be unavailable for examination unless his 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 his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification.

If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him. Identical to Mass.R.Civ.P. 30(b)(2)

(3) The court may for cause shown enlarge or shorten the time for taking the deposition. Identical to Mass.R.Civ.P. 30(b)(3)

(4) By leave of court upon motion with notice and an opportunity to be heard in opposition, or by stipulation in writing of all parties, a party taking an oral deposition may have the testimony recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, 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 his own expense. Any objections under subdivision (c), any changes made by the witness, his signature identifying the deposition as his own or the statement of the officer that is required if the witness does not sign, as provided in subdivision (e), and the certification of the officer required by subdivision (f) shall be set forth in a writing to accompany a deposition recorded by non-stenographic means. In any event, however, where testimony is to be recorded by audio-visual means, the provisions of Rule 30A shall apply. Identical to Mass.R.Civ.P. 30(b)(4) as amended January 1, 1981

(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 and, notwithstanding the provisions of subdivision (b)(1) of this Rule, the party making the request shall give at least 30 days' notice in writing to every other party to the action. The court may on motion with or without notice allow a shorter or longer time. Identical to Mass.R.Civ.P. 30(b)(5)

(6) A party may in his 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. 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 he will testify. A subpoena shall advise a non-party 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 (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules. Identical to Mass.R.Civ.P. 30(b)(6)

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(b). 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 the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically or by voice writing or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and such party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

All objections made at the 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; but the examination shall proceed. Any objection to testimony during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. Testimony to which objection is made shall be taken subject to the objections. Counsel for a witness or a party may not instruct a deponent not to answer except where necessary to assert or preserve a privilege a disqualification pursuant to G.L. c. 233, § 20 or protection against disclosure, to enforce a limitation on evidence directed by the court or stipulated in writing by the parties, or to terminate the deposition and present a motion to the court pursuant to Rules 30(d) or 37(d).

Pursuant to Rule 26(j), a special master may be appointed to oversee the deposition practice and procedure. The court may order or the special master may decide to attend the deposition. A party may request the attendance of the special master at a deposition, if a party reasonably believes it is necessary. In addition to the powers enumerated in Rule 26(j) and subject to the specifications and limitations stated in the order of reference, the special master may decide the time, date and place for the deposition, the length of the deposition and who may be present at the deposition.

(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of any 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 or the court in the county or judicial district, as the case may be, where the deposition is being taken 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 26(c). 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(a)(4) apply to the award of expenses incurred in relation to the motion. Identical to Mass.R.Civ.P. 30(d)

(e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, 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 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 to him, 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(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. Identical to Mass.R.Civ.P. 30(e)

(f) Certification and Delivery by Officer; Exhibits; Copies; Notice of Receipt.

(1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court generally or in a specific case or stipulated by the parties, he shall then securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of [here insert name of witness]" and shall promptly deliver or send it to the party taking the deposition. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, except that if the person producing the material desires to retain them he may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.

(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

(3) The party taking the deposition shall give prompt notice of its receipt to all other parties.

Identical to Mass.R.Civ.P. 30(f)(1)-(3)

(g) Failure to Attend or to Serve Subpoena; Expenses.

(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 amount of the reasonable expenses incurred by him and his attorney in so 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 him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he 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 amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney's fees.

Identical to Mass.R.Civ.P. 30(g)

Amended effective September 1, 1981; June 8, 1989, effective July 1, 1989; January 30, 1989, effective March 1, 1989; effective December 1, 1997; effective January 1, 2000

Reporter's Notes (1997). Rule 30(a) was amended to eliminate the requirement that leave of court be obtained before the taking of oral deposition in actions in which the relief sought is the custody of minor children, or the affirmance or annulment of marriage.

The amendment to Rule 30(f) makes it identical to Mass.R.Civ.P. 30(f) by including (f)(2) which requires the officer to furnish a copy of the deposition to any party or to the deponent upon payment of reasonable charges.

(2000). The purpose of the amendment to rule 30(c), modeled after the 1998 amendment to rule 30(c) of the Massachusetts Rules of Civil Procedure, is to address the problem created by objections during a deposition and by directions to a deponent by counsel not to answer a question.

Under Mass.R.Civ.P. 30(c), it would appear that counsel could instruct a deponent not to answer a question that comes within the disqualification of G.L. c. 233, § 20, since the latter would constitute a "protection against disclosure." However, in light of the frequency in which this issue occurs in domestic relations cases, it was deemed advisable to add the Domestic Relations Rules a specific reference to this statutory disqualification.

The revised rule references Mass.R.Dom.Rel.P. 26(j) regarding the appointment of a special master to oversee the deposition practice and procedure. In addition to the powers enumerated in rule 26(j), the amendment to rule 30(c) allows for the special master to decide the time, date and place for the deposition, the length of the deposition and who may be present.