Rule 590-4-6-.18 - Depositions and Written Questions to Secure Testimony(1) Any time during the course of a proceeding, the Hearing Officer may, in the Hearing Officer's discretion, order that the testimony of a witness be taken by deposition or on written questions. Application to take a deposition in lieu of personal appearance at the hearing shall be made by motion filed with the Clerk and served upon all parties. Such motion shall state the name and address of the witness, the time when, the place where, and the subject matter about which the witness would be deposed, the relevance of such testimony, and the specific reason why the witness cannot, or will not, appear to testify at the hearing.(2) In the exercise of the Hearing Officer's discretion in deciding whether to order testimony by deposition, the Hearing Officer may consider, among other factors: (a) Whether requiring the appearance of a witness subject to subpoena would endanger the witness's health or work an undue hardship;(b) Whether a showing has been made that a non-resident potential witness, who is not subject to subpoena in this State and is willing to appear voluntarily to be deposed in the jurisdiction of the witness's residence, would be subject to being compelled to appear and be deposed under any law in the jurisdiction of the witness's residence (e.g., a Uniform Foreign Depositions Act); or(c) Whether ordering the taking of testimony by deposition will result in an undue burden on any other party, an undue delay in the proceeding, or any injury to other parties from the delay.(3) If the Hearing Officer orders testimony by deposition, the Hearing Officer may specify whether the scope of examination upon deposition should be limited in any way.(4) Procedures for oral depositions to secure testimony shall be as follows:(a) Examination and cross-examination of a deponent shall proceed under the same rules of evidence applicable to hearings under the Act and these Rules. Each deponent shall be duly sworn by an officer authorized to administer oaths by the laws of the United States or the place where the examination is held, and the deponent's testimony shall be recorded and transcribed. Any objections made at the time of the deposition to the qualifications of the officer taking the deposition, to the manner of the taking of the deposition, to the evidence presented, to the conduct of any party, or any other objection to the proceedings shall be recorded and included in the transcript. Evidence objected to shall be taken subject to the objection.(b) Any error or irregularity in the notice of taking testimony by deposition shall be deemed waived unless written objection thereto is filed with the Clerk and served upon all parties prior to the deposition. Any objection relating to the qualifications of the officer before whom the deposition is to be taken shall be deemed waived unless made before the deposition begins or as soon thereafter as the alleged lack of qualification becomes known or could be discovered in the exercise of reasonable diligence.(c) Any objection to the competency of a witness or to the competency, relevancy, or materiality of testimony is not waived by failure to make such objection prior to or during the deposition unless the ground of the objection is one that might have been obviated or removed if presented prior to or during the deposition. Any error or irregularity occurring during the taking of the deposition in administering the oath or affirmation, the manner of the taking of the deposition, the form of questions or the answers thereto, the conduct of any party, or any error of a kind that might be obviated, removed or cured if timely raised, shall be deemed waived unless reasonable objection thereto is made at the deposition.(d) Any error or irregularity in the manner in which the testimony is transcribed or the deposition is prepared, certified, transmitted, filed or otherwise dealt with by the person taking the deposition shall be deemed waived unless a motion to strike all or a part of the said deposition is made with reasonable promptness after such error or irregularity is, or in the exercise of reasonable diligence should have been, ascertained.(e) The deposition shall be transcribed, certified by the officer taking the same, and filed with the Clerk. Any party who contends that the transcript does not truly or fully disclose what transpired at the deposition shall file a notice with the Clerk specifying any alleged errors and omissions within ten (10) days of the filing of the deposition. If the parties are unable to agree concerning the alleged errors and omissions, the Hearing Officer shall set the matter down for hearing with notice to all parties and shall resolve the differences to make the record accurately conform to the truth.(f) 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, and returned with, the deposition, and may be inspected and copied by any party. Copies may be substituted for originals if each party is given an opportunity to compare the proffered copy with the original to verify its correctness.(5) Application to take testimony by written questions shall be made and considered in the same manner as prescribed for depositions in paragraphs (1), (2) and (3) of this Rule. If the Hearing Officer orders the taking of testimony on written questions, each written question shall be answered separately and fully in writing under oath, unless objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers shall be signed by the person making them, and any objections shall be signed by the attorney making them.(6) Subject to appropriate rulings on objections, a deposition or written questions and answers shall be received in evidence as if the testimony contained therein had been given by the witness before the Hearing Officer.(7) Whenever used in this Rule, the word "witness" shall be construed, where appropriate, to include parties.Ga. Comp. R. & Regs. R. 590-4-6-.18
O.C.G.A. Secs. 10-5-10, 10-5-16, 10-5-70, 10-5-71, 10-5-73, 10-5-74, 50-13-13.
Original Rule entitled "Depositions and Written Questions to Secure Testimony" adopted. F. Dec. 21, 2004; eff. Jan. 10, 2005. Repealed: New Rule of same title adopted. F. Nov. 18, 2011; eff. Dec. 8, 2011.