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§ 6-330. 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 the plaintiff seeks to take a deposition prior to the expiration of thirty days after service of summons, except that leave is not required:

   (1) If a defendant has served a notice of taking a deposition or otherwise sought discovery, or

   (2) If special notice is given as provided in subdivision (b)(2) of this rule.

   The attendance of witnesses may be compelled by subpoena. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

   (b) Notice of Examination: General Requirements; Special Notice; Nonstenographic Recording; Production of Documents and Things; Deposition of Organization.

   (1)(A) A party desiring to take the deposition of any person upon oral examination shall give reasonable 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 her or the particular class or group to which he or she 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.

   (B) When the party against whom the deposition is to be used is unknown or is one whose whereabouts cannot be ascertained he or she may be notified of the taking of the deposition by publication. The publication must be made once in some newspaper printed in the county where the action is pending, if there be any printed in such county, and if not, in some newspaper printed in this state of general circulation in that county. The publication must contain all that is required in a written notice and must be made at least ten days prior to the deposition. Publication may be proved in the manner prescribed in Neb. Rev. Stat. § 25-520. A copy of the written notice shall be filed with the clerk before publication.

   (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 Nebraska and will be unavailable for examination in the State of Nebraska unless his or her deposition is taken before expiration of the thirty-day period, and

   (B) Sets forth facts to support the statement.

   The plaintiff's attorney shall sign the notice, and his or her signature constitutes a certification by him or her that to the best of his or her knowledge, information, and belief the statement and supporting facts are true.

   If a party shows that when he or she was served with notice under subdivision (b)(2) he or she 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 him or her.

   (3) The court may for cause shown enlarge or shorten the time for taking the deposition.

   (4) The notice required by subdivision (1) shall state the manner in which the testimony will be recorded and preserved. The court may make any order necessary to assure that the record of the testimony will be accurate and trustworthy.

   (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 his or her 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 he or she 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 (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

   (7) The parties may stipulate in writing, or the court may upon motion order, that a deposition be taken by telephone. For the purposes of theses rules a deposition taken by telephone is taken in the district and at the place where the deponent is to appear to answer questions.

   (8)(A) A party taking a deposition may have the testimony recorded by videotape. The notice of deposition shall specify that a videotape deposition is to be taken.

   (B) Upon the request of any of the parties, the officer before whom a videotape deposition is taken shall provide, at the cost of the party making the request, a copy of the deposition in the form of a videotape, an audio recording, or a written transcript.

   (C) When the videotape deposition has been taken, the videotape shall be shown immediately to the witness for examination, unless such showing and examination are waived by the witness and the parties. Any changes in form or substance which the witness desires to make shall be recorded on the videotape with a statement by the witness on such tape of the reasons given by him or her for making such changes.

   (D) The officer before whom the videotape deposition is taken shall cause to be attached to the original videotape recording a certificate that the witness was duly sworn or affirmed by him or her and that the videotape recording 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 videotape deposition, the witness shall also sign the certification.

   (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 the Nebraska Evidence Rules. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his or her direction and in his or her presence, record the testimony of the witness. The testimony shall be recorded in accordance with subdivision (b)(4) of this rule. 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. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he or she shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

   (d) Motion to Terminate or Limit Examination. 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 or the district court in the district 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.

   (e) When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him or her, 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, 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.

   (f) Certification; Delivery; Storage.

   (1) The officer shall certify on the deposition that the witness was truly sworn by him or her and that the deposition is a true record of the testimony of the witness. Unless otherwise ordered by the court, he or she shall then deliver the deposition to the party taking the deposition, who must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.

   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 materials desires to retain them, he or she may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he or she 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 originals be annexed to the deposition, 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 to all other parties that it has been delivered by the officer before whom taken.

   (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 reasonable expenses incurred by him or her and his or her attorney in attending, including reasonable attorney fees.

   (2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him or her 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 him or her and his or her attorney in attending, including reasonable attorney fees.

COMMENTS TO RULE 30

 

   30(a) This subsection is substantially the same as the federal rule. It is also similar to former Neb. Rev. Stat. § 25‑1267.01 (Repealed 1982). Changes from the earlier statute include the addition of the special notice defined in subdivision (b)(2) and the plaintiff's waiting time is expanded from 20 to 30 days.

 

   30(b) This section is based on former Neb. Rev. Stat. §§ 25‑1267.19 to 25‑1267.21 (Repealed 1982). Subdivision (1)(A) eliminates the particular requirements of time contained in the former sections as unnecessary. It is similar to the present federal rule 30(b)(1). Subdivision (1)(B) follows the language of current law allowing published notice of the taking of a deposition.

 

   Subdivision (2) has been adapted from the federal rule. Subdivision (4) follows the language of former Neb. Rev. Stat. § 25‑1267.19 (Amended 1979) (Repealed 1982). Subdivision (6) is a new provision that was added to the federal rules in 1970 that is very useful when taking a deposition of a corporation or organization.

 

   Subdivision (7) is based on a similar provision adopted in the federal rules in 1980. Subdivision (8) is adapted from former Neb. Rev. Stat. § 25‑1267.45 (Repealed 1982); it has been shortened substantially because some of the subjects currently covered by the statute are either covered elsewhere in the rules or are better left to the control of the trial judge.

 

   30(c) The language of this subsection is substantially the same as the federal rule and former Neb. Rev. Stat. §§ 25‑1267.03 and 25‑1267.23 (Repealed 1982). The requirement in former § 25-1267.23 that the testimony be taken stenographically has been dropped in accordance with the 1979 amendment of former Neb. Rev. Stat. § 25‑1267.19 (Repealed 1982).

 

   30(d) This is substantially the same as the federal rule and former Neb. Rev. Stat. § 25‑1267.24 (Repealed 1982).

 

   30(e) This is substantially similar to the federal rule and former Neb. Rev. Stat. § 25‑1267.25 (Repealed 1982), except that subsection (2) of that section has been dropped as unnecessary because a court order is not required to take the testimony by nonstenographic means.

 

   30(f) The former Nebraska statute was Neb. Rev. Stat. § 25‑1267.26 (Repealed 1982). Additional language from the federal rule provides a procedure for handling documents and things produced during a deposition . The deposition will not be filed with the court but will be sent to the party taking the deposition. Subsection (f)(3) requires notice to other parties that the deposition has been received; Rule 26(g) provides that a certificate of completion will not be filed with the court. The party taking the deposition will have to preserve the original in order to be able to file it when required to do so under Rule 26(g).

 

   30(g) The language of this subsection follows former Neb. Rev. Stat. § 25‑1267.27 (Repealed 1982), with the addition of a specific mention of attorney fees.

Rule 30(f)(1) amended December 12, 2001; comments to Rule 30(f) amended December 12, 2001. Renumbered and codified as § 6-330, effective July 18, 2008.

Supreme Court Rules

This page was last modified on Wednesday, October 24, 2012