(a) Agreement of Parties. Upon agreement of the parties, a deposition may be taken on oral examination.(b) Order of Court. Following the initial appearance, any party may move the court to order the testimony of any other person or party be taken by deposition on oral examination, if:(1) there is a reasonable probability that the witness will be unable to be present or to testify at the hearing because of the witness' existing physical or mental illness, infirmity, or death;(2) the party taking the deposition cannot procure the attendance of the witness at a hearing by a subpoena, order of the court, or other reasonable means; or(3) on a showing that the information sought cannot be obtained by other means.(c) Subpoena. Attendance of witnesses at oral deposition may be compelled by subpoena as provided by Rule 13. Attendance of parties at oral deposition must be ordered by the court when the court grants a motion under subdivision (b) and must be procured through service of the order and a notice of the time and place of the taking of the deposition on the party.(d) Notice, Oath and Record.(1) Notice. A party taking a deposition must give reasonable notice in writing to each party to the action. The notice must 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 or the particular class or group to which the person belongs.(2) Oath and Record. The officer before whom the deposition is to be taken must put the witness on oath and personally, or by someone acting under the officer's direction and in the officer's presence, must record the testimony of the witness. The testimony must be taken stenographically or recorded by audio-visual means or any other means ordered. If requested by one of the parties, the testimony must be transcribed. The court may order the cost of transcription paid by one or some of, or apportioned among, the parties.(e) Scope and Manner of Examination; Objections; Motion to Terminate or Limit.(1) Participation. (A) In no event shall the deposition of a child who is charged with an offense be taken without the child's consent.(B) A victim may refuse to participate in a deposition requested by a respondent or a respondent's attorney.(2) Scope and Manner of Taking. The scope and manner of examination and cross examination in the taking of a deposition to be used at the hearing must be the same as that allowed at the hearing.(3) Objections. All objections made at the time of the examination to the qualifications of the person taking the deposition, or to the manner of taking it, or to the evidence presented or to the conduct of any person present at the depositions and any other objection to the proceedings must be recorded by the officer before whom the deposition is taken. Evidence objected to must be taken subject to the objections unless the objection is based on the witness's use of the Fifth Amendment.(4) Motion to Terminate or Limit Examination. 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 court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of the taking of the deposition by ordering as follows: (A) that certain matters not be inquired into or that the scope of examination be limited to certain matters, or(B) that the examination be conducted with no one present except persons designated by the court.(f) Transcription, Certification and Filing. When the testimony is fully transcribed, the officer must certify on the deposition the witness was duly sworn and the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court, the officer must securely seal the deposition in an envelope endorsed with the title of the case and marked "Deposition of (here insert name of witness)" and must promptly deliver or send the transcript by registered or certified mail or a traceable third-party commercial delivery service to the party noticing the deposition, who must be identified on the record. Upon the request of a party, documents and other things produced during the examination of a witness, or copies thereof, must be marked for identification and annexed as exhibits to the deposition, and may be inspected and copied by any party. The exhibits may then be used in the same manner as if annexed to the deposition.(g) Failure to Appear. If a party giving 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 the other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees.Effective Date 3/1/2010; 5/1/2017 .
Explanatory Note
Rule 12.1 was adopted effective March 1, 2010. Amended effective May 1,
2017.
Paragraph (e)(1) was amended, effective May 1, 2017, to provide that a victim may refuse to participate in a deposition requested by a respondent or a respondent's attorney. This right is granted by N.D. Const. Art. I, § 25(1)(f). "Victim" is defined in N.D. Const. Art. I, § 25(4).
SOURCES: Joint Procedure Committee Minutes of January 26-27, 2017, pages 15-16; Minn. R. Juv. Prot. P. 17.04(b), Minn. R. Juv. Del. P. 10.07, N.D.R.Civ.P. 30.
STATUTES AFFECTED:
CONSIDERED: N.D. Const. Art. I, § 25.