DEPOSITIONS UPON ORAL EXAMINATION
(a)(1) When Depositions May Be Taken. After commencement of an action any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of summons and complaint upon any defendant, except that leave is not required if a defendant has served a notice of taking depositions or otherwise sought discovery as provided in 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.
This language is similar to that currently found in Circuit Court Rule 87A. It is drawn from the current Rule 30(a) of the Federal Rules.
(2)Limitations. A witness may be compelled to attend in the county in which he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court. A party may be compelled to attend in the county in which the subject civil action is pending, or in the county in which he resides or is employed or transacts business, or at such other convenient place as is fixed by an order of the court.
The deposition of any party or witness may only be taken one time in any case except by agreement of the parties through their counsel or by order of the court for good cause shown.
A witness attending any deposition held pursuant to these rules shall receive for each day's attendance and for the time necessarily occupied in going to and returning from the same, $25.00 per day, and mileage for going from and returning to his place of residence, in the same amounts as provided by law for official travel of state officers and employees.
This rule shall not apply to those cases where the amount in controversy is less than the sum of $10,000.00, unless the parties or their counsel agree otherwise, or unless the court should so order upon good cause shown.
The above language is not contained in the current Federal Rule. However, the first two paragraphs are contained in Circuit Court Rule 87A and reflect limitations on the use of discovery in present State practice. The third paragraph is the language of Circuit Court Rule 87I and provides for statutory fees. The fourth paragraph is the language of Circuit Court Rule 87J and states that depositions should not be routinely available in cases involving less than $10,000 in controversy.
Rule 30(a)(2) previously established the counties in which a witness, but not a party, could be deposed. The rule is amended to add that a party may be deposed in the county where the action is pending, as well as where the deponent resides, or is employed or transacts business in person, or where set by order of the court.
(b) Notice of Examination: General Requirements; 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 ten (10) days 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 him or the particular class or group to which he 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.
The change alters the Federal Rule which requires reasonable notice of deposition to conform to present State practice requiring ten days notice of deposition. Rule 30(b)(3) permits the court to shorten or lengthen this period.
(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go more than 100 miles from the place of trial, or is about to go out of the State, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the 30-day period provided in Rule 30(a)(1), and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification. If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.
This is the language of the Federal Rule, slightly modified to delete a reference to the deponents departing from the county where the trial will be held. Sufficient protection is provided by the remaining factors including travel more than 100 miles from the place where the action is pending.
(3) The court may for cause shown enlarge or shorten the time for taking the deposition.
This is the language of Federal Rule 30, and makes no change in existing State practice.
(4) 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 his own expense. Any objection under Rule 30(c), any changes made by the witness, his signature identifying the deposition as his own or the statement of the officer that is required if the witness does not sign, as provided in Rule 30(e), and the certification of the officer required by Rule 30(f) shall be set forth in writing to accompany a deposition recorded by non-stenographic means.
This permits stipulation of the parties or the court to order the recording of a deposition by other than stenographic means. It is meant to encourage the use of other mechanisms including videotape. The rule requires a fairly extensive order or stipulation. Videotape depositions are presently authorized by Circuit Rule 99 which is reproduced in paragraph (h) of this rule.
(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.
This is the existing Federal Rule and makes clear what often occurs in practice, that a deposition and document request may be made returnable at the same time.
(6) A party may in his 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 he 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.
This permits a party seeking discovery to require of the other party that it designate the appropriate individual or individuals to respond to the deposition and thereby provides flexibility for a knowledgeable individual to be presented for a deposition. It is an expansion of language which now is in Circuit Court Rule 87C.
(7) The parties may stipulate in writing 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 at the same place where the deponent is to answer questions propounded to him. The notary before whom the deposition is taken shall be at the same place as the deponent during the taking of the deposition.
This section permits a deposition by telephone. Although such a deposition is permissible under present rules, this section makes the procedure explicit.
(c) Examination and Cross-Examinations; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the South Carolina Rules of Evidence except Rules 103 and 615. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his 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 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 may serve written questions in a sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
This is the language of the Federal Rule with the deletion of a reference to the Federal Rules of Evidence. It is consistent with Circuit Court Rule 87C. It specifically requires that evidence to which objection is made be taken subject to that objection. The last sentence changes existing State practice by permitting the use of written questions in lieu of personal attendance. This is intended for those multi-party depositions in which a party may only be interested in a small portion of the expected testimony.
Note to 1995 Amendment:
This amendment, which changed the first sentence of Rule 30(c), was made as a result of the adoption of the South Carolina Rules of Evidence. With this amendment, the first sentence is identical to the Federal Rule except for the substitution of the phrase "South Carolina Rules of Evidence" in place of the phrase "Federal Rules of Evidence."
(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or 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 place 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.
This language is substantially similar to Circuit Court Rule 87H(2), which was drawn from a previous version of Federal Rule 30(d). The language above permits an objection to be filed in the court where the action is pending, and also in the court in the place where the deposition is taking place. This is a change from the existing Circuit Court Rule which deleted the reference to the district where the deposition is taking place.
(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 him 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 him, 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.
This is similar to the language currently found in Circuit Court Rule 87H(4), and the language of the current Federal Rule.
(f) Certification and Delivery by Officer; Exhibits; Copies; Notice of Filing.
(1) The officer transcribing a deposition shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of (herein insert name of witness)" and shall promptly deliver it or send it by registered or certified mail to the party taking the deposition who shall retain the original and become the custodian. The custodian shall promptly file the original deposition with the clerk of court when the same is to be used at a hearing or at trial.
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 the deposition and may be inspected and copied by any party, except that if the person producing the materials desires to retain them he may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the originals be annexed to and returned with the deposition to 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) The party taking the deposition shall give prompt notice of its filing to all other parties.
(4) One year after final termination of an action in which a deposition has been taken, the party taking the deposition or the clerk of court, as the case may be, may destroy or otherwise dispose of the original deposition.
This Rule 30(f) is the Federal Rule modified to conform to State practice with regard to custody and destruction of deposition materials. See Rule 26(g)(2) as to destruction of other discovery materials.
(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 reasonable expenses incurred by him and his 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 him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.
This is the language of the current Federal Rule. It contains substantially the same material that is presently in Circuit Court Rule 87H(7).
(h) Videotaped Depositions.
(1) The provisions of this rule apply only to civil actions in which the prayer for relief involves an amount of one hundred thousand dollars or more or in which the court has granted permission for the use of videotape by court order.
(A) When a party taking a deposition, in addition to having the testimony taken stenographically and transcribed, also desires to have the testimony videotaped, the party shall include notice of the videotaping of the deposition in the written notice required. Neither the provisions of this Rule shall preclude the parties from agreeing that a written transcript will not be presented with respect to a particular deposition.
(B) The officer before whom a videotape deposition is taken shall be one of the officers enumerated herein.
(2)(A) At the beginning of the deposition, and prior to the deponent being sworn, the videotape operator shall record an identification sign. As the sign is being recorded, the operator shall, in addition, vocally record the information on the sign. The identification sign shall indicate the caption of the action, the docket number of the action, the name of the deponent, the date, the time, and the name of the officer before whom the videotaped deposition is being taken.
After the identification sign has been recorded, each participant shall identify himself or herself on camera, stating clearly the name, the address, and the role of the participant.
(B) After the identification required by subsection (a) above has been completed, the witness shall be put on oath as required; the swearing shall be on camera.
(C) After the witness has been sworn, testimony shall be taken in accord with the provisions herein. The taking of such testimony shall be videotaped in its entirety.
(D) During the taking of a videotape deposition under this rule, the officer before whom the deposition is taken shall assure that the videotape records the witness in a standard fashion at all times during the deposition, unless all counsel agree otherwise, or unless on motion before the court, the court directs otherwise. In no event shall the officer use, or permit the use of, videotape camera techniques such as close-up views of the witness or other similar techniques to vary the view which is being recorded for presentation in the courtroom unless agreed upon or ordered by the court as recited above. As an exemption to the foregoing, the officer shall, at the request of the attorney questioning the witness, cause a close-up view of a deposition exhibit to be taken while the witness is being questioned concerning the exhibit.
(3) When a videotape deposition has been taken the videotape shall be shown immediately to the witness for examination, unless such showing and examination are waived by the witness and the parties.
(4) The officer before whom a videotape deposition is taken shall cause to be attached to the original videotape recording a certification that the witness was sworn by him and that the videotape recording is a true record of the testimony given by the witness. If the witness has not waived his right to a showing and examination of the videotape deposition, the witness shall also sign the certification. If the witness has exercised his right pursuant to section (3) above to examine the videotape and, having done so, refuses to certify that the videotape recording is a true record of his testimony, the officer before whom the videotape deposition was taken shall so note on the certification form and shall further state the reasons given by the witness for refusing to certify that the videotape recording is a true record of his testimony.
(5) The videotape deposition, together with the officer's certification and the certification of the cameraman, shall be filed by the officer before whom the deposition was taken at the same time and in the same manner the written transcript of a deposition is filed pursuant to the provisions of these rules.
(6) Upon payment of reasonable charges therefor, the officer before whom the deposition was taken shall furnish a copy of the videotape deposition in the form of a videotape or an audio recording to any party or to the deponent.
(7) Except upon order of the trial judge and upon such terms as he may provide, the videotape recordings on file with the clerk of court shall not be available for inspection or viewing after their filing and prior to their use at the trial of the case or their disposition in accordance with this rule. The clerk may release the videotape to the officer before whom the deposition was taken, without the order of the trial judge, for the purpose of preparing a copy for a party or a deponent as provided in section (6) above.
(8) If objections have been made by any of the parties during the course of the deposition, upon the written request of any of the parties submitted to the clerk of court, the videotape depositions, with the written transcript and the certifications required hereinabove, shall be submitted by the clerk of court to the trial judge for the purpose of obtaining rulings on the objections. An audio copy of the sound track may be submitted in lieu of the videotape for this purpose. For the purpose of ruling on the objections, the trial judge may review the written transcript, view the entire videotape recording, view only those parts of the videotape recording pertinent to the objections made, or he may listen to an audiotape recording submitted in lieu of the videotape recording. The trial judge shall rule on the objections prior to the date set for the trial of the action and shall return the recording to the officer with notice to the parties of his rulings and of his instruction as to editing. The editing shall reflect the rulings of the trial judge and shall remove all reference to the objections. The officer shall then cause the videotape to be edited in accordance with the court's instructions and shall cause both the original videotape recording and the edited version of that recording, each clearly identified, to be filed with the clerk of court.
(9) If an objection is made at the time of trial when objection has not previously been raised and ruled upon, such objection shall be made before the videotape deposition is presented and shall be ruled upon by the trial judge in advance of the presentation. If such objection is sustained, that portion of the videotape deposition containing the objectionable testimony shall not be presented to the jury.
(10) The party taking the deposition shall be responsible for assuring that the necessary equipment for videotaping the deposition is present at the time the deposition is taken. The party desiring to use the videotape deposition for any purpose subsequent to the taking of the deposition shall be responsible for assuring that the necessary equipment for playing the videotape deposition back is available when the videotape deposition is to be used. When a videotape deposition is used during a hearing, a trial, or any other court proceeding, the party first using the videotape deposition in whole or in part shall assure the availability of the same or comparable videotape playback equipment to any other party for such other party's use in further showing the videotape deposition during the hearing, the trial, or other court proceeding in question.
(11) The cost of videotape, as a material, shall be borne by the party taking the videotape deposition. Where an edited version is required, the cost of videotape, as a material, shall be borne by the party who caused to be recorded testimony or other evidence subsequently determined to be objectionable and ordered stricken from the tape by the court. The cost of recording the deposition testimony on videotape shall be borne by the party taking videotape deposition. The cost of producing an edited version of the videotape recording for use at trial shall be borne by the party who caused to be recorded testimony or other evidence subsequently determined to be objectionable and ordered stricken from the tape by the court.
(12) The ownership of the videotape used in recording testimony shall remain with the party taking the videotape deposition. The ownership of the videotape used in producing an edited videotape recording shall remain with the party who caused to be recorded testimony or other evidence subsequently determined to be objectionable and ordered stricken from the tape by the court. Videotape may be reused for the recording of other testimony, but the proponent shall be responsible for the submission of a recording of acceptable quality. The trial court may authorize the clerk of court to release the original videotape recording and the edited videotape recording to the owner of the videotape:
(A) upon the final disposition of the case when no trial is had,
(B) upon the expiration of the appeal period following the trial of the case, provided no appeal is taken, or
(C) upon the final determination of the case, if an appeal is taken.
(13) The cameraman who videotaped a deposition pursuant to the provisions of this rule shall execute the following written certificate prior to the beginning of the videotape deposition:
"I _______ hereby affirm that I am familiar with the provisions of Rule 30(h) pertaining to videotape depositions and will assure that the videotaping of this deposition is done in compliance with the provisions of Rule 30(h) and in an impartial manner."
Such written certification will be filed in accordance with section (7) above.
This is the language of Circuit Court Rule 99, Videotaped Depositions. This is the same language as in Code §§ 15-28-10 and 20. There is no comparable detailed language in the Federal Rule, which authorizes videotaped depositions by court order or stipulation and contemplates that many of the matters contained in Circuit Court Rule 99 will be resolved by the stipulation or order.
(i) Use of Depositions of Treating Physicians and Other Specified Treating Health Care Providers. The deposition of any licensed physician, psychologist, chiropractor, osteopathic physician or dentist who provided actual medical treatment to a party may be taken by any party to an action in which the physician, psychologist, chiropractor, osteopathic physician or dentist may be called as a witness, on notice to each party or attorney as provided in the rules. Notwithstanding the provisions of Rule 32(a)(3) regarding the location of a witness, an evidence deposition, otherwise admissible, may be received in evidence at a trial or hearing. The deposition may be taken by stenographic means, or videotape as provided in these rules or in such other manner as may be provided by these rules. The notice shall specify that the purpose of the deposition is for evidence at a trial or hearing pursuant to this rule, and shall further specify the manner in which the deposition is to be taken. The cost of the deposition, including materials and fees, shall be borne by the party noticing the deposition. Before the evidence deposition, any party may obtain discovery from the witness as permitted by Rule 26. This rule shall not be the exclusive method of obtaining the testimony of the specified health care providers, nor shall the existence of an evidence deposition prevent any party from using any deposition otherwise admissible under Rule 32, or subpoenaing the deposed witness to testify at the trial or hearing. Provided, however, a party who noticed the evidence deposition must provide 2 days notice of the intent to call the treating health care provider as a witness and once that notice is given, must call that witness unless leave of court is granted.
(j) Conduct During Depositions.
(1) At the beginning of each deposition, deposing counsel shall instruct the witness to ask deposing counsel, rather than the witness’ own counsel, for clarifications, definitions, or explanations of any words, questions or documents presented during the course of the deposition. The witness shall abide by these instructions.
(2) All objections, except those which would be waived if not made at the deposition under Rule 32(d)(3), SCRCP, and those necessary to assert a privilege, to enforce a limitation on evidence directed by the Court, or to present a motion pursuant to Rule 30(d), SCRCP, shall be preserved.
(3) Counsel shall not direct or request that a witness not answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege1 or a limitation on evidence directed by the court or unless that counsel intends to present a motion under Rule 30(d), SCRCP. In addition, counsel shall have an affirmative duty to inform a witness that, unless such an objection is made, the question must be answered. Counsel directing that a witness not answer a question on those grounds or allowing a witness to refuse to answer a question on those grounds shall move the court for a protective order under Rule 26(c), SCRCP, or 30(d), SCRCP, within five business days of the suspension or termination of the deposition. Failure to timely file such a motion will constitute waiver of the objection, and the deposition may be reconvened.
(4) Counsel shall not make objections or statements which might suggest an answer to a witness. Counsel’s objections shall be stated concisely and in a non-argumentative and non-suggestive manner, stating the basis of the objection and nothing more.
(5) Counsel and a witness shall not engage in private, off-the-record conferences during depositions or during breaks or recesses regarding the substance of the testimony at the deposition, except for the purpose of deciding whether to assert a privilege or to make an objection or to move for a protective order.
(6) Any conferences which occur pursuant to, or in violation of, section (5) of this rule are proper subjects for inquiry by deposing counsel to ascertain whether there has been any witness coaching and, if so, to what extent and nature.
(7) Any conferences which occur pursuant to, or in violation of, section (5) of this rule shall be noted on the record by the counsel who participated in the conference. The purpose and outcome of the conference shall be noted on the record.
(8) Deposing counsel shall provide to opposing counsel a copy of all documents shown to the witness during the deposition, either before the deposition begins or contemporaneously with the showing of each document to the witness. If the documents are provided (or otherwise identified) at least two business days before the deposition, then the witness and the witness’ counsel do not have the right to discuss the documents privately before the witness answers questions about them. If the documents have not been so provided or identified, then counsel and the witness may have a reasonable amount of time to privately discuss the documents before the witness answers questions concerning the document.
(9) Violation of this rule may subject the violator to sanctions under Rule 37, SCRCP.
Rule 30 is amended to add paragraph (i) which provides that the depositions of specified health care providers may be introduced in evidence at trial or hearing notwithstanding that the witness is otherwise subject to subpoena. The restriction in Rule 32(a)(3)(B) that a deposition can only be used if the witness is more than 100 miles from the place of trial does not apply to a deposition taken pursuant to this paragraph. Moreover, this paragraph does not affect a deposition otherwise admissible under the rules. The rule authorizes the evidence deposition of the designated witnesses by stenographic or videotape as otherwise provided in the rules. The notice of the deposition must specify that the purpose is to obtain an evidence deposition and that it may be taken by videotape. The other parties may obtain discovery of the witness before the evidence deposition by any means, including deposition, authorized by Rule 26. The costs of the evidence deposition is borne by the party noticing the deposition. Once an evidence deposition has been obtained, the party noticing the evidence deposition must give 2 days notice of the intent to call the treating health care provider as a witness, and must call the witness unless the leave of court is granted.
Rule 30 is amended by adding Paragraph (j) which provides deposition guidelines similar to those used in federal district court in South Carolina. The final subsection differs from the federal rule by making the imposition of sanctions for violations of the rule discretionary. The intent of the amendment is to help eliminate conduct tending to interfere with or impede depositions.
Rule 30(j) is amended to clarify that any consultation between lawyer and client permitted by Rule 30 will be private.
Last amended by order dated April 27, 2005
1. For purposes of this rule, the term “privilege” includes but is not limited to: attorney-client privilege; work product protection; trade secret protection and privileges based on the United States Constitution and the South Carolina Constitution.