Rule 30 - Depositions upon Oral Examination(a) When deposition 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 for the purpose of discovery or for use as evidence in the action or for both purposes, when: (1) the party obtains leave of court for the taking of the deposition upon showing to the satisfaction of the court the need therefor; or (2) the parties so stipulate under Rule 29. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. Leave of court may be granted upon oral motion which may be received at the pretrial conference or at a hearing of the same.(b) Notice of examination: General requirement; special notice; non-stenographic recording; production of documents and things; deposition of organization; deposition by telephone. (1) 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 the person to be examined or the particular class or group to which the person 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. (2) Leave of court is not required for the taking of a deposition by a party if the notice (A) states that the person to be examined is about to go out of the State or is about to go out of the United States, or is bound on a voyage to sea, or is impending death, and will be unavailable at the time of trial, and (B) sets forth facts to support the statement. The party or the party's attorney shall sign the notice, and that signature shall constitute a certification by the party or party's attorney in accordance with Rule 11. The sanctions provided by Rule 11 are applicable to the certification. If a party shows that when the party was served with notice under this subdivision (b)(2) the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, or the party establishes a Rule 11 violation, the deposition may not be used against that party.
(3) The court may for cause shown enlarge or shorten the time for taking the deposition. (4) Subject to the provisions of Rule 2 of the Rules Governing Court Reporting, the parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be 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 the party's own expense. Any objections under subdivision (c), any changes made by the witness, the witness' signature identifying the deposition as the witness' 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. (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 the party's 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 the person 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. (7) The parties may stipulate in writing, or on the record, or the court may, upon motion, order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken by telephone is taken in the circuit and at the place where the deponent is to answer questions propounded to the deponent.(8) The notice shall inform the deponent, of the requirements of subsection (e) of this rule in substantially the following form: | You are hereby notified that you may request a review of the completed transcript or recording of your deposition. You must make this request before the completion of your deposition. If you make such a request, after being notified by the court reporter or other officer taking the deposition that the transcript or recording is available, you will have 30 days to: (1) review the transcript or recording; and (2) if there are changes in form or substance, to sign a statement reciting such changes and the reasons for making them. |
Failure to substantially comply with this notice requirement prior to the completion of the deposition shall preclude the use of the transcript or recording until the deponent has been provided 30 days within which to review the transcript or recording, and, if there are changes, to sign a statement reciting them and the reasons therefor. Any changes shall be appended to the transcript or recording.
(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 Hawai'i Rules of Evidence. 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 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. 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. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written questions in a sealed envelope on the party taking the deposition and that party 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 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 circuit 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) 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 the witness, 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 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 and retention by officer; exhibits; copies; filing and notice of filing. (1) The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. The officer shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of [here insert name of witness]". The officer shall retain the deposition and shall be responsible for its safekeeping until the officer files it pursuant to subdivision (f) (3) of this rule, or if it is not filed, until 6 months after the final disposition of the case including any appeals; provided that an officer who has taken a deposition outside this state shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing; and further provided that if the officer discontinues the occupation of taking depositions by reason of death or otherwise, the officer or agent of the officer shall promptly file any depositions with the court. Unless the court orders otherwise, depositions may be destroyed 6 months after the final disposition of the action, including appeal. 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, except that (A) the person producing the materials may substitute copies to be marked for identification, if the person producing the materials affords to all parties fair opportunity to verify the copies by comparisons with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the officer or 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) A deposition shall be filed when submitted pursuant to this rule for use on a motion or at trial. For use on a motion, whether in support or opposition, a deposition may be filed concurrently with or after the filing of the motion. For use at trial, a previously unfiled deposition offered in evidence shall not be filed more than five days before the the scheduled commencement of trial. In addition the court may at any time, on ex parte request or sua sponte, order the filing of a deposition. When any party seeks to submit a deposition pursuant to this rule, the officer who took the deposition shall upon the party's request promptly file the deposition, or, if time permits, send it by registered or certified mail to the clerk of court for filing. The party who requested filing shall give prompt notice of the filing to all other parties.
(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 the other party and that party's attorney in 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 the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that other party 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 such other party and that party's attorney in attending, including reasonable attorney's fees. Haw. Dis. Ct. R. Civ. P. 30
Amended December 30, 2008, effective 7/1/2009; further amended August 3, 2011, effective 1/1/2012.COMMENTS:
Adopts HRCP Rule 30 with changes to gender neutral language and some alterations. The old language of Rule 30(a) was substituted for that of Rule 26(a) as it was decided that leave of court should still be necessary to take a deposition. On average, the dollar amounts in District Court are small and an unfair advantage could be taken by one side forcing another to concede by escalating legal costs and fees. Other minor changes were made to adapt to new procedures in the District Court or to make the section more understandable. Furthermore, an exception of impending death of a witness was added as an exception not requiring leave of court and it was felt that a stipulation on the record to take a deposition was just as good as in writing.