C.r.c.p. 28

As amended through Rule Change 2024(18), effective October 2, 2024

Rule 28 - Persons Before Whom Depositions May Be Taken

(a)Outside the State of Colorado. Depositions outside the State of Colorado shall be taken only upon proof that notice to take deposition has been given as provided in these rules. The deposition shall be taken before an officer authorized to administer oaths by the laws of this state, the United States or the place where the examination is to be held, or before a person appointed by the court in which the action is pending. A person so appointed has the power to administer oaths and take testimony.

(b)Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is financially interested in the action.

(c)Commission or Letters Rogatory. A commission or letters rogatory shall be issued when necessary, on application and notice, and on terms that are just and appropriate. It is not a requisite to the issuance of a commission or letters rogatory that the taking of the deposition in any other manner is impracticable or inconvenient. Both a commission and letters rogatory may be issued in proper cases. Officers may be designated in the commission either by name or descriptive title. Letters rogatory may be addressed "to the appropriate authority in (here name the appropriate place)." The clerk shall issue a commission or letters rogatory in the form prescribed by the jurisdiction where the deposition is to be taken, such form to be prepared by the party seeking the deposition. The commission or letters rogatory shall inform the officer that the original sealed deposition shall be filed according to subsection (d) of this rule. Any error in the form or in the commission or letters rogatory is waived unless an objection is filed and served before the time fixed in the notice.

(d)Filing of the Deposition. The officer transcribing the deposition shall file the original sealed deposition pursuant to C.R.C.P. 30(f)(1).

C.r.c.p. 28

Committee Comment

Commissions and letters rogatory are unnecessary when: (1) the deposition is being taken before an officer authorized to administer oaths in Colorado, (2) the Court has appointed a person under subsection (a), or (3) when the parties have stipulated to the person pursuant to C.R.C.P. 29.

The Federal Rules of Civil Procedure specifically define court-appointed persons or stipulated persons as "officers" under rules 30, 31 and 32. The Committee follows this principle but feels that it need not be specifically set forth in the Colorado rule.

Annotation I. General Consideration. Law reviews. For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For article, "Depositions and Discovery, Rules 26 to 37 ", see 28 Dicta 375 (1951). For article, "Depositions and Discovery: Rules 26-37 ", see 23 Rocky Mt. L. Rev. 562 (1951). For article, "Plaintiff's Advantageous Use of Discovery, Pre-Trial and Summary Judgment", see 40 Den. L. Ctr. J. 192 (1963). For article, "Taking Evidence Abroad for Use in Litigation in Colorado", see 14 Colo. Law. 523 (1985). For article, "Securing the Attendance of a Witness at a Deposition", see 15 Colo. Law. 2000 (1986). For article, "Alternative Depositions: Practice and Procedure", see 19 Colo. Law. 57 (1990). C.R.C.P. 26 to 37 must be construed together along with the requirement that plaintiff establish a prima facie case for punitive damages, as a condition precedent to the plaintiff's right to discovery of defendant's financial information. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Applied in Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981). II. Outside of Colorado. Annotator's note. Since section (a) of this rule is similar to § 384 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. There is no way by which depositions of witnesses living out of the state can be taken except on due observance of the statutory course; any deviation from the statutory provisions on this subject is fatal, and the use of depositions erroneously taken constitutes an error for which a cause has to be reversed. Argentine Falls Silver Mining Co. v. Molson, 12 Colo. 405, 21 P. 190 (1889); Gibbs v. Gibbs, 6 Colo. App. 368, 40 P. 781 (1895). A Colorado court does not have jurisdiction to compel a witness residing in a foreign state to appear in the foreign jurisdiction and give testimony by deposition and to furnish his personal records at said hearing by virtue of a dedimus issued in Colorado and a subpoena duces tecum issued in the foreign state where the witness is not a party to the suit. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957). This rule which provides for taking deposition outside of Colorado of nonresidents not parties to an action in Colorado or served within Colorado is subject to implied limitations of mutual compact or uniform act. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957); Minnesota ex rel. Minnesota Att'y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). No state court or government has authority beyond its own borders, each state being sovereign as to its own territory and those residing therein. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957); Minnesota ex rel. Minnesota Att'y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). Such recognition as is given Colorado laws or court orders by other states must be based solely upon full faith and credit, comity, contract due to uniform acts, or compact. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957); Minnesota ex rel. Minnesota Att'y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). The matter of lack of jurisdiction cannot be waived, and this defense may be raised at any stage of the proceedings. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957). Provisions for taking depositions outside the state under this rule do not apply to criminal proceedings. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). III. Disqualification for Interest. Law reviews. For article, "The Federal Rules from the Standpoint of the Colorado Code", see 17 Dicta 170 (1940).

For persons authorized to administer oaths, see § 24-12-103 , C.R.S.; for objections to admissibility, see C.R.C.P. 32(b).