24.5.322 DEPOSITIONS

24.5.322 DEPOSITIONS (1) Any party may take the testimony of any person, including a party, by deposition upon oral examination after the petition has been served. Leave of court, granted with or without notice, must be obtained only if the petitioner seeks to take a deposition prior to the expiration of 20 days from the date of service of the petition. The taking of a post-trial deposition requires leave of court. The attendance of witnesses may be compelled by subpoena as provided by ARM 24.5.331.

(2) 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 proceeding. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined. 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.

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

(4) Examination and cross-examination of witnesses may proceed as permitted at the trial. 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 that person's presence, record the testimony of the witness. The testimony shall be stenographically recorded unless otherwise ordered by the court. If requested by one of the parties, the testimony shall be transcribed.

(5) Unless otherwise agreed, all objections must be made at the time of taking the deposition and be included within the transcript of the deposition. Evidence objected to shall be taken subject to the objections. Deposition objections must be briefed in the parties' proposed findings of fact and conclusions of law. Failure to do so will be deemed a withdrawal of the objections.

(6) 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 taking of the deposition shall be suspended for the time necessary for the objecting party to move the court for an order. The court 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. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court. The provisions of ARM 24.5.326 apply to the award of expenses incurred in relation to the motion.

(7) 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. Any changes in form or substance which the witness desires to make shall be entered upon the deposition, which shall then be signed by the witness under oath, unless the parties and the witness 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 10 days of its submission to the witness, the officer shall sign it and state on the record the reason, if any, that the deposition has not been signed and it may then be used as fully as though signed.

(8) Unless the court orders otherwise, the parties, by written stipulation, or by stipulation entered upon the record of a deposition, may provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions.

(9) Regardless of the availability of a witness or party to testify at trial, the circumstances of workers' compensation cases make it desirable, in the interest of justice, that a deposition of a witness or a party may be used by any party for any purpose unless the court restricts such usage upon a finding that the interests of justice would be served thereby.

(10) Any party participating in a deposition may make a simultaneous videotape recording of the deposition. A party who intends to videotape a deposition shall in the notice of deposition notify all parties of her/his intention. A copy of the videotaped deposition must be provided to all parties. If any party proposes to offer the videotaped deposition for the court's consideration, that party shall provide a copy to the court. Any videotaped deposition provided to the court shall be in VHS format and shall be labeled with the name of the case and the name or names of all witnesses whose depositions are contained on the videotape. Each videotaped deposition filed with the court shall be accompanied by a transcript prepared by the court reporter who was present at the deposition.

(11) A party may take a deposition upon written questions. Reasonable notice of the name and address of the person who is to answer the questions and the name or descriptive title and address of the officer before whom the deposition is to be taken shall be given opposing parties. Within 10 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Thereafter, within 10 days a party may serve redirect questions. Recross questions must be served upon all other parties within 5 days of the service of the redirect questions. (History: Sec. 2-4-201, MCA; IMP, Sec. 2-4-201, 39-71-2901, MCA; NEW, 1983 MAR p. 1715, Eff. 11/26/83; PREV. Rule #, ARM 2.52.214; TRANS, from Admin., 1989 MAR p. 2177, Eff. 12/22/89; AMD, 1990 MAR p. 847, Eff. 5/1/90; AMD, 1994 MAR p. 675, Eff. 4/1/94.)