N.M. R. Civ. P. Dist. Ct. 1-028

As amended through November 1, 2024

Rule 1-028 - Persons before whom depositions may be taken

A.Within the United States. Depositions shall be taken before an officer authorized to administer oaths by the laws of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.

B.In foreign countries. In a foreign country, depositions may be taken:

(1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States;

(2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony; or

(3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in (here name the country)." Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.

C.Disqualification for interest. Subject to Rule 1-029 NMRA, 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 a relative or employee of such attorney or counsel, or is financially interested in the action.

N.M. R. Civ. P. Dist. Ct. 1-028

As amended, effective 2/1/2001.

ANNOTATIONS The 2000 amendment, effective February 1, 2001, in Paragraph A, deleted "Within the United States or within a terriory or insular possession subject to the dominion of the United States" at the beginning of the first sentence and deleted "of the United States" following "oaths by the laws" in the middle of the first sentence; and in Paragraph C, inserted "Subject to Rule 1-029 NMRA".

For power of notaries public to take depositions, see Section 14-12A-1 NMSA 1978. For taking of depositions within state for use outside state, see 38-8-1 to 38-8-3 NMSA 1978. For fees for clerk, witnesses and officer taking deposition, see Section 39-2-8 NMSA 1978. Compiler's notes. - This rule, together with Rules 1-030, 1-031, 1-032 and 1-045 NMRA, is deemed to have superseded 45-101 to 45-119, C.S. 1929 (36-5-21 to 36-5-39, 1953 Comp., now repealed), insofar as those provisions related to the taking of depositions for use in the district courts. This rule, together with Rules 1-027, 1-030 and 1-045 NMRA, is deemed to have superseded 45-201 to 45-214, C.S. 1929, relating to perpetuation of testimony and use of same. This rule, together with Rules 1-030 and 1-032 NMRA, is deemed to have superseded 45-401 to 45-406 and 45-408, C.S. 1929, relating to the taking of testimony to be used in pending civil cause by oral examination, under certain circumstances, and use of same. Am. Jur. 2d, A.L.R. and C.J.S. references. - 23 Am. Jur. 2d Depositions and Discovery §§15 to 18, 110 to 117. Subpoena duces tecum for production of items held by a foreign custodian in another country, 82 A.L.R.2d 1403. Disqualification of attorney, otherwise qualified, to take oath or acknowledgment from client, 21 A.L.R.3d 483. Grounds for disqualification of criminal defendant's chosen and preferred attorney in federal prosecution, 127 A.L.R. Fed. 67. 26A C.J.S. Depositions §§ 17 to 21, 28, 58.