Rule 30. Depositions Upon Oral Examination

Advisory Commission Comments to Rules 30.01-30.07

Advisory Commission Comments

This Rule is designed to provide a comprehensive guide for the taking of depositions upon oral examination. The method of serving notice for depositions taken under these Rules is set out in Rule 5. Rule 30.04 eliminates the reference “like or similar court in the jurisdiction where the deposition is being taken,” found in the Federal Rules.

Rule 30 generally corresponds to the equivalent numbered rule in the Georgia Civil Practice Act and in the Federal Rules of Civil Procedure.

Rule 30.02 contains two important innovations. Subdivision (4) empowers the court to order that a deposition may be taken by other than stenographic means. One example of recording the testimony at a deposition by other than stenographic means is the use of videotape in the taking of depositions. This is relatively new but is apparently being used in some places. It is emphasized that the testimony at a deposition may be recorded by other than stenographic means only upon order of the court. This rule permits but does not require the court to make such an order. Even when such an order is made, the party may arrange to have a stenographic transcription made at the party’s own expense. [1979.]

Subdivision (6) permits an organization rather than an individual to be named in a subpoena. The organization shall then designate the person or persons to testify on its behalf in response to the subpoena. [1979.]

30.02: The language permitting written stipulation comes from F. R. Civ. P. 30(b)(4) and constitutes merely a cross-reference to T. R. Civ. P. 29, under which parties may vary any discovery rule by a stipulation in writing. The word “assume” in the Code text is a typographical error; the word should be “assure.” The last sentence in the first paragraph, taken from F. R. Civ. P. 30(b)(4) but modified, is needed to cover the procedure incident to depositions taken by other than traditional methods. [1986.]

Beginning with the paragraph (B), T. R. Civ. P. 30.02(4) is new [in 1986]. With few changes, the Commission proposes adoption of the Uniform Audio-Visual Deposition Rule. Although a stenographic record of the videotape deposition is optional, an appellant will need to provide a transcribed record for the appellate court. See T. R. App. P. 24 and the Advisory Commission Comment. [1986.]

(7): While perhaps not preferable from a tactical standpoint in many instances, there are occasions when great distances and modest funds militate in favor of a deposition by telephone. The [1984] amendment expressly allows this form of “deposition upon oral examination” by stipulation or order; probably it has been implicitly permissible by stipulation under Rule 29. [1984.]

30.03: The added language in the second paragraph of Rule 30.03 admonishes lawyers not to make “speaking” objections, which unethically put lawyers’ words in deponents’ mouths. “Instructions” to a deponent not to answer a deposition question are made not only without authority but are unethical and sanctionable. See First Tennessee Bank v. FDIC, 108 F.R.D. 640 (E.D. Tenn. 1985). Some courts have reminded the bar that a deposition is a formal judicial proceeding – albeit absent a presiding judge – and consequently consultations between counsel and deponent during questioning are not to be tolerated any more than it would be in the courtroom. See Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). [1995.]

30.06: In rare cases, the “party who requested the taking of the deposition” may have been dismissed from the cause prior to the hearing. In such instances, a copy in the possession of a remaining party could be used under Evidence Rule 1003. [1996.]

Advisory Commission Comment [1996]

A lawyer or agent can operate the equipment at a videotaped deposition.

Advisory Commission Comment [2004]

The new second paragraph of Rule 30.06 will require that parties give notice whenever they file a deposition.

Advisory Commission Comment [2016]

Rule 30.03 provides that “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence.” This language does not imply that Tenn. R. Evid. 615 is applicable to depositions. Unless otherwise ordered by the court, a lawyer may communicate with a deponent about deposition procedure or the substance of deposition testimony before, during (unless a question is pending) or after the deposition; however, such communications are subject to the Rules of Professional Conduct including, but not limited to, Tenn. Sup. Ct. R. 8, RPC 3.3 and RPC 3.4.


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