(b) Scope of examination.

Unless otherwise ordered by the court as provided by Rule 30 (b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.

(c) Examination and cross-examination.

Examination and cross-examination of deponents may proceed as permitted at the trial under the provisions of Rule 43 (b).

(d) Use of depositions.

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: 1, that the witness is dead; or 2, that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or 3, that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or 4, that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 5, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and

duly filed in the former action may be used in the latter as if originally taken therefor.

(e) Objections to admissibility.

Subject to the provisions of Rules 28 (b) and 32(c), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(f) Effect of taking or using depositions.

A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (2) of subdivision (d) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. As amended Dec. 27, 1946, effective March 19, 1948; Jan. 21, 1963, effective July 1, 1963.

NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdivision (a). This rule freely authorizes the taking of depositions under the same circumstances and by the same methods whether for the purpose of discovery or for the purpose of obtaining evidence. Many states have adopted this practice on account of its simplicity and effectiveness, safeguarding it by imposing such restrictions upon the subsequent use of the deposition at the trial or hearing as are deemed advisable. See Ark. Civ. Code (Crawford, 1934) §§ 606-607; Calif. Code Civ. Proc. (Deering, 1937) § 2021; 1 Colo. Stat. Ann. (1935) Code Civ. Proc. § 376; Idaho Code Ann. (1932) § 16-906; Ill. Rules of Pract., Rule 19 (Ill. Rev. Stat. (1937) ch. 110, $259.19); Ill. Rev. Stat. (1937) ch. 51, § 24; 2 Ind. Stat. Ann. (Burns, 1933) §§ 2-1501, 2-1506; Ky. Codes (Carroll, 1932) Civ. Pract. § 557; 1 Mo. Rev. Stat. (1929) § 1753; 4 Mont. Rev. Codes Ann. (1935) § 10645; Neb. Comp. Stat. (1929) ch. 20, §§ 1246-7; 4 Nev. Comp. Laws (Hillyer, 1929) § 9001; 2 N. H. Pub. Laws (1926) ch. 337, § 1; N. C. Code Ann. (1935) § 1809; 2 N. D. Comp. Laws Ann. (1913) §§ 7889-7897; 2 Ohio Gen. Code Ann. (Page, 1926) § 11525-6; 1 Ore. Code Ann. (1930) Title 9, § 1503; 1 S. D. Comp. Laws (1929) §§ 2713-16; Tex. Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev. Stat. Ann. (1933) § 10451-7; Wash. Rules of Practice adopted by the Supreme Ct., Rule 8, 2 Wash. Rev. Stat. Ann. (Remington, 1932) § 308-8; W. Va. Code (1931) ch. 57, art. 4. § 1. Compare Equity Rules 47 (Depositions-To be Taken in Exceptional Instances); 54 (Depositions Under Revised Statutes, Sections 863, 865, 866, 867-Cross-Examination); 58 (Discovery-Interrogatories-Inspection and Production cf Documents-Admission of Execution or Genuineness). This and subsequent rules incorporate, modify, and broaden the provisions for depositions under U. S. C., Title 28, former §§ 639 (Depositions de bene esse; when and where taken; notice), 640 (Same; mode of taking), 641 (Same; transmission to court), 644 (Depositions under dedimus potestatem and in perpetuam), 646 (Deposition under dedimus potestatem; how taken). These statutes are superseded insofar as they differ from this and subsequent rules. U. S. C., Title 28, former § 643 (Depositions; taken in mode prescribed by State laws) is superseded by the third sentence of Subdivision (a).

While a number of states permit discovery only from parties or their agents, others either make no distinction between parties or agents of parties and ordinary witnesses, or authorize the taking of ordinary depositions, without restriction, from any persons who have knowledge of relevant facts. See Ark. Civ. Code (Crawford, 1934)

§§ 606 607; 1 Idaho Code Ann. (1932) § 16-906; Ill. Rules of Pract., Rule 19 (Ill. Rev. Stat. (1937) ch. 110, § 259.19);

Ill. Rev. Stat. (1937) ch. 51, § 24; 2 Ind. Stat. Ann. (Burns, 1933) § 2-1501; Ky. Codes (Carroll, 1932) Civ. Pract. §§ 554-558; 2 Md. Ann. Code (Bagby, 1924) Art. 35, § 21; 2 Minn. Stat. (Mason, 1927) § 9820; 1 Mo. Rev. Stat. (1929) §§ 1753, 1759; Neb. Comp. Stat. (1929) ch. 20, §§ 1246-7; 2 N. H. Pub. Laws (1926) ch. 337, § 1; 2 N. D. Comp. Laws Ann. (1913) § 7897; 2 Ohio Gen. Code Ann. (Page, 1926) §§ 11525-6; 1 S. D. Comp. Laws (1929) §§ 2713-16; Tex. Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev. Stat. Ann. (1933) § 104-51-7; Wash. Rules of Practice adopted by Supreme Ct.. Rule 8, 2 Wash. Rev. Stat. Ann. (Remingtcn, 1932) § 308-8; W. Va. Code (1931) ch. 57, art. 4, § 1. The more common practice in the United States is to take depositions on notice by the party desiring them, without any order from the court, and this has been followed in these rules. See Calif. Code Civ. Proc. (Deering 1937) § 2031; 2 Fla. Comp. Gen. Laws Ann. (1927) §§ 4405-7; 1 Idaho Code Ann. (1932) § 16-902; Ill. Rules of Pract., Rule 19 (Ill. Rev. Stat. (1937) ch. 110, § 259.19); Ill. Rev. Stat. (1937) ch. 51, § 24; 2 Ind. Stat. Ann. (Burns, 1933) § 2-1502; Kan. Gen. Stat. Ann. (1935) § 60-2827; Ky. Codes (Carroll, 1932) Civ. Pract. § 565; 2 Minn. Stat. (Mason, 1927) § 9820; 1 Mo. Rev. Stat. (1929) § 1761; 4 Mont. Rev. Codes Ann. (1935) § 10651; Nev. Comp. Laws (Hillyer, 1929) § 9002; N. C. Code Ann. (1935) § 1809; 2 N. D. Comp. Laws Ann. (1913) § 7895; Utah Rev. Stat. Ann. (1933) § 104-51-8.

Note to Subdivision (b). While the old chancery practice limited discovery to facts supporting the case of the party seeking it, this limitation has been largely abandoned by modern legislation. See Ala. Code Ann. (Michie, 1928) §§ 7764-7773; 2 Ind. Stat. Ann. (Burns, 1933) §§ 2-1028, 2-1506, 2-1728-2-1732; Iowa Code (1935) § 11185; Ky. Codes (Carroll, 1932) Civ. Pract. §§ 557, 606 (8); La. Code Pract. (Dart, 1932) arts. 347-356; 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 231, §§ 61-67; 1 Mo. Rev. Stat. (1929) §§ 1753, 1759; Neb. Comp. Stat. (1929) §§ 20-1246, 201247; 2 N. H. Pub. Laws (1926) ch. 337, § 1; 2 Ohio Gen. Code Ann. (Page, 1926) §§ 11497, 11526; Tex. Stat. (Vernon, 1928) arts. 3738, 3753, 3769; Wis. Stat. (1935) § 326.12; Ontario Consol. Rules of Pract. (1928) Rules 237-347; Quebec Code of Civ. Proc. (Curran, 1922) §§ 286-290.

Note to Subdivisions (d), (e), and (f). The restrictions here placed upon the use of depositions at the trial or hearing are substantially the same as those provided in U. S. C., Title 28, former § 641, for depositions taken, de bene esse, with the additional provision that any deposition may be used when the court finds the existence of exceptional circumstances. Compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 37, r. 18 (with additional provision permitting use of deposition by consent of the parties). See also former Equity Rule 64 (Former Depositions, Etc., May be Used Before Master); and 2 Minn. Stat. (Mason, 1927) § 9835 (Use in a subsequent action of a deposition filed in a previously dismissed action between the same parties and involving the same subject matter).

NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO RULES

Note. Subdivision (a). The amendment eliminates the requirement of leave of court for the taking of a deposition except where a plaintiff seeks to take a deposition within 20 days after the commencement of the action. The retention of the requirement where a deposition is sought by a plaintiff within 20 days of the commencement of the action protects a defendant who has not had an opportunity to retain counsel and inform himself as to the nature of the suit; the plaintiff, of course, needs no such protection. The present rule forbids the plaintiff to take a deposition, without leave of court, before the answer is served. Sometimes the defendant delays the serving of an answer for more than 20 days, but as 20 days are sufficient time for him to obtain a lawyer, there is no reason to forbid the plaintiff to take a deposition without leave merely because the answer has not been served. In all cases, Rule 30 (a) empowers the court, for cause shown, to alter the time of the taking of a deposition, and Rule 30 (b) contains provisions giving ample protection to persons who are unreasonably pressed. The modified practice here adopted is along the line of that followed in various states. See, e. g., 8 Mo. Rev. Stat.

Ann., 1939, § 1917; 2 Burns' Ind. Stat. Ann., 1933, § 21506.

Subdivision (b). The amendments to subdivision (b) make clear the broad scope of examination and that it may cover not only evidence for use at the trial but also inquiry into matters in themselves inadmissible as evidence but which will lead to the discovery of such evidence. The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case. Engl v. Aetna Life Ins. Co., C. C. A. 2d, 1943, 139 F. 2d 469; Mahler v. Pennsylvania R. Co., E. D. N. Y. 1945, 8 Fed. Rules Serv. 33.351, Case 1. In such a preliminary inquiry admissibility at trial should not be the test as to whether the information sought is within the scope of proper examination. Such a standard unnecessarily curtails the utility of discovery practice. Of course, matters entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if it produces no testimony directly admissible. Lewis v. United Air Lines Transportation Corp., D. Conn. 1939, 27 F. Supp. 946; Engl v. Aetna Life Ins. Co., supra; Mahler v. Pennsylvania R. Co., supra; Bloomer v. Sirian Lamp Co., D. Del. 1944, 8 Fed. Rules Serv. 26b.31, Case 3; Rosseau v. Langley, S. D. N. Y. 1945, 9 Fed. Rules Serv. 34.41, Case 1 (Rule 26 contemplates "examinations not merely for the narrow purpose of adducing testimony which may be offered in evidence but also for the broad discovery of information which may be useful in preparation for trial."); Olson Transportation Co. v. Socony-Vacuum Co., E. D. Wis. 1944, 8 Fed. Rules Serv. 34.41, Case 2 ("... the Rules permit 'fishing'

...

for evidence as they should."); Note, 1945, 45 Col. L. Rev. 482. Thus hearsay, while inadmissible itself, may suggest testimony which properly may be proved. Under Rule 26 (b) several cases, however, have erroneously limited discovery on the basis of admissibility, holding that the word "relevant" in effect meant "material and competent under the rules of evidence". Poppino v. Jones Store Co., W. D. Mo. 1940, 1 F. R. D. 215, 3 Fed. Rules Serv. 26b.5, Case 1; Benevento v. A. & P. Food Stores, Inc., E. D. N. Y. 1939, 26 F. Supp. 424. Thus it has been said that inquiry might not be made into statements or other matters which, when disclosed, amounted only to hearsay. See Maryland for use of Montvila v. Pan-American Bus Lines, Inc., D. Md. 1940, 1 F. R. D. 213, 3 Fed. Rules Serv. 26b.211, Case 3; Gitto v. "Italia," Societa Anonima Di Navigazione, E. D. N. Y. 1940, 31 F. Supp. 567; Rose Silk Mills, Inc. v. Insurance Co. of North America, S. D. N. Y. 1939, 29 F. Supp. 504; Colpak v. Hetterick, E. D. N. Y. 1941, 40 F. Supp. 350; Matthies v. Peter F. Connolly Co., E. D. N. Y. 1941, 6 Fed. Rules Serv. 30a.22, Case 1, 2 F. R. D. 277; Matter of Examination of Citizens Casualty Co. of New York S. D. N. Y. 1942, 3 F. R. D. 171, 7 Fed. Rules Serv. 26b.211, Case 1; United States v. Silliman, D. C. N. J. 1944 8 Fed. Rules. Serv. 26b.52, Case 1. The contrary and better view, however, has often been stated. See e. g.. Engl v. Aetna Life Ins. Co., supra: Stevenson v. Melady, S. D. N. Y. 1940, 3 Fed. Rules Serv. 26b.31, Case 1, 1 F. R. D. 329; Lewis v. United Air Lines Transport Corp., supra; Application of Zenith Radio Corp., E. D. Pa. 1941, 4 Fed. Rules Serv. 30b.21, Case 1, 1 F. R. D. 627; Steingut v. Guaranty Trust Co. of New York, S. D. N. Y. 1941, 1 F. R. D. 723, 4 Fed. Rules Serv. 26b.5, Case 2; DeSeversky v. Republic Aviation Corp, E. D. N. Y. 1941, 2 F. R. D. 183, 5 Fed. Rules Serv. 26b.31, Case 5; Moore v. George A. Hormel & Co., S. D. N. Y. 1942, 6 Fed. Rules Serv. 30b.41, Case 1, 2 F. R. D. 340; Hercules Powder Co. v. Rohm & Haas Co., D. Del. 1943, 7 Fed. Rules Serv. 45b.311, Case 2, 3 F. R. D. 302; Bloomer v. Sirian Lamp Co., supra; Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., D. Mass. 1944, 8 Fed. Rules Serv. 26b.31, Case 1; Patterson Oil Terminals, Inc. v. Charles Kurz & Co., Inc., E. D. Pa. 1945, 9 Fed. Rules Serv. 33.321, Case 2; Pueblo Trading Co. v. Reclamation Dist. No. 1500, N. D. Cal. 1945, 9 Fed. Rules Serv. 33.321, Case 4, 4 F. R. D. 471. See also discussion as to the broad scope of discovery in Hoffman v. Palmer, C. C. A. 2d, 1942, 129 F. 2d 976, 995-997, aff'd on other grounds, 1942, 318 U. S. 109, 63 S. Ct. 477; Note, 1945, 45 Col. L. Rev. 482.

NOTES OF ADVISORY COMMITTEE ON 1963 AMENDMENTS TO RULES

This amendment conforms to the amendment of Rule 28(b). See the next-to-last paragraph of the Advisory Committee's Note to that amendment.

CROSS REFERENCES

Certification and filing of depositions, see rule 30 (f). Consequences of refusal to appear for deposition, see rule 37 (d).

Continuance to procure depositions opposing motion for summary judgment, see rule 56 (f).

Depositions

Before action or pending appeal, see rule 27.

Of witnesses upon written interrogatories, see rule 31.

Opposing motion for summary judgment, see rule 56 (e).

Effect of errors and irregularities in depositions, see rule 32.

Examination and cross-examination of deponents, see rule 43 (e).

Failure to attend or serve subpoena, expenses, see rule 30 (g).

Motion to terminate or limit examination, see rule 30 (d).

Notice for taking deposition, see rule 30 (a). Objections to admissibility of depositions, see rule 32 (c).

Order compelling answer to question propounded upon oral examination, see rule 37 (a).

Orders for protection of parties and deponents, see rule 30 (b).

Persons before whom depositions may be taken, see rule 28.

Record of examination, see rule 30 (c). Stipulations regarding taking depositions, see rule 29. Subpoena for taking depositions, see rule 45 (d). Time and place for depositions, see rules 30 (a) and 45 (d).

Written interrogatories of party, see rule 33.

RULE 27.-DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

(a) Before Action.

(1) Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the United States may file a verified petition in the United States district court in the district of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: 1, that the petitioner expects to be a party to an action cognizable in a court of the United States but is presently unable to bring it or cause it to be brought, 2, the subject matter of the expected action and his interest therein, 3, the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, 4, the names or a description of the persons he expects will be adverse parties and their addresses so far as known, and 5, the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice

shall be served either within or without the district or state in the manner provided in Rule 4 (d) for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4 (d), an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Rule 17 (c) apply.

(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

(4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a United States district court, in accordance with the provisions of Rule 26 (d).

(b) Pending appeal.

If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the district court.

(c) Perpetuation by action.

This rule does not limit the power of a court to entertain an action to perpetuate testimony. As amended Dec. 27, 1946, effective March 19, 1948; Dec. 29, 1948, effective Oct. 20, 1949.

NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdivision (a). This rule offers a simple method of perpetuating testimony in cases where it is usually allowed under equity practice or under modern statutes. See Arizona v. California, 292 U. S. 341, 54 S. Ct. 735, 78 L. Ed. 1298 (1934); Todd Engineering Dry Dock and Repair Co. v. United States, 32 F. 2d 734 (C. C. A. 5th, 1929); Hall v. Stout, 4 Del. ch. 269 (1871). For comparable state statutes see Ark. Civ. Code (Crawford, 1934) §§ 666— 670; Calif. Code Civ. Proc. (Deering, 1937) 2083-2089; Ill. Rev. Stat. (1937) ch. 51, §§ 39-46; Iowa Code (1935) §§ 11400-11407; 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 233, §46-63; N. Y. C. P. A. (1937) § 295; Ohio Gen. Code Ann. (Throckmorton, 1936) § 12216-12222; Va. Code Ann. (Michie, 1936) § 6235; Wis. Stat. (1935) §§ 326.27—326.29. The appointment of an attorney to represent absent parties or parties not personally notified, or a guardian ad litem to represent minors and incompetents, is provided for in several of the above statutes.

Note to Subdivision (b). This follows the practice approved in Richter v. Union Trust Co., 115 U. S. 55, 5 S. Ct. 1162, 29 L. Ed. 345 (1885), by extending the right to perpetuate testimony to cases pending an appeal.

Note to Subdivision (c). This preserves the right to employ a separate action to perpetuate testimony under U. S. C., Title 28, former § 644 (Depositions under dedimus potestatem and in perpetuam) as an alternate method. NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO RULES

Note. Since the second sentence in subdivision (a) (3) refers only to depositions, it is arguable that Rules 34 and 35 are inapplicable in proceedings to perpetuate testimony. The new matter [in subdivisions (a) (3) and (b)] clarifies. A conforming change is also made in subdivision (b).

AMENDMENTS

1948- The amendment effective October 1949, substituted the words "United States district court" in subdivision (a) (1) and (4) for "district court of the United States."

CROSS REFERENCES

Persons before whom depositions may be taken, see

rule 28.

RULE 28.-PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

(a) Within the United States.

Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or 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, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his 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

A

to be taken either by name or descriptive title. 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.

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. As amended Dec. 27, 1946, effective March 19, 1948; Jan. 21, 1963, effective July 1, 1963. NOTES OF ADVISORY COMMITTEE ON RULES

In effect this rule is substantially the same as U. S. C., Title 28, former § 639 (Depositions de bene esse; when and where taken; notice). U. S. C., Title 28, former § 642 (Depositions, acknowledgments, and affidavits taken by notaries public) does not conflict with subdivision (a).

NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO RULES

Note.

The added language [in subdivision (a)] provides for the situation, occasionally arising, when depositions must be taken in an isolated place where there is no one readily available who has the power to administer oaths and take testimony according to the terms of the rule as originally stated. In addition, the amendment affords a more convenient method of securing depositions in the case where state lines intervene between the location of various witnesses otherwise rather closely grouped. The amendment insures that the person appointed shall have adequate power to perform his duties. It has been held that a person authorized to act in the premises, as, for example, a master, may take testimony outside the district of his appointment. Consolidated Fastener Co. v. Columbian Button & Fastener Co., C. C. N. D. N. Y. 1898, 85 Fed. 54; Mathieson Alkali Works v. Arnold Hoffman & Co., C. C. A. 1st, 1929, 31 F. 2d 1.

NOTES OF ADVISORY COMMITTEE ON 1963 AMENDMENTS TO RULES

The amendment of clause (1) is designed to facilitate depositions in foreign countries by enlarging the class of persons before whom the depositions may be taken on notice. The class is no longer confined, as at present, to a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States. In a country that regards the taking of testimony by a foreign official in aid of litigation pending in a court of another country as an infringement upon its sovereignty, it will be expedient to notice depositions before officers of the country in which the examination is taken. See generally Symposium Letters, Rogatory (Grossman ed. 1956); Doyle, Taking Evidence by Deposition and Letters Rogatory and Obtaining Documents in Foreign Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 37 (1959); Heilpern, Procuring Evidence Abroad, 14 Tul. L. Rev. 29 (1939); Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62, Yale L.J. 515, 526-29 (1953); Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1056-58 (1961).

Clause (2) of amended subdivision (b), like the corresponding provision of subdivision (a) dealing with depositions taken in the United States, makes it clear that the appointment of a person by commission in itself confers power upon him to administer any necessary oath.

It has been held that a letter rogatory will not be issued unless the use of a notice or commission is shown to be impossible or impractical. See, e.g., United States v. Matles, 154 F. Supp. 574 (E.D.N.Y. 1957); The Edmund Fanning, 89 F. Supp. 282 (E.D.N.Y. 1950); Branyan v. Koninklijke Luchtvaart Maatschappij, 13 F.R.D. 425 (S.D.N.Y. 1953). See also Ali Akber Kiachif v. Philco In

ternational Corp., 10 F.R.D. 277 (S.D.N.Y. 1950). The intent of the fourth sentence of the amended subdivision is to overcome this judicial antipathy and to permit a sound choice between depositions under a letter rogatory and on notice or by commission in the light of all the circumstances In a case in which the foreign country will compel a witness to attend or testify in aid of a letter rogatory but not in aid of a commission, a letter rogatory may be preferred on the ground that it is less expensive to execute, even if there is plainly no need for compulsive process. A letter rogatory may also be preferred when it cannot be demonstrated that a witness will be recalcitrant or when the witness states that he is willing to testify voluntarily, but the contingency exists that he will change his mind at the last moment. In the latter case, it may be advisable to issue both a commission and a letter rogatory, the latter to be executed if the former fails. The choice between a letter rogatory and a commission may be conditioned by other factors, including the nature and extent of the assistance that the foreign country will give to the execution of either.

In executing a letter rogatory the courts of other countries may be expected to follow their customary procedure for taking testimony. See United States v. Paraffin Wax, 2255 Bags, 23 F.R.D. 289 (E.D.N.Y. 1959). In many noncommon-law countries the judge questions the witness, sometimes without first administering an oath, the attorneys put any supplemental questions either to the witness or through the judge, and the judge dictates a summary of the testimony, which the witness acknowledges as correct. See Jones, supra, at 530-32; Doyle, supra, at 39-41. The last sentence of the amended subdivision provides, contrary to the implications of some authority, that evidence recorded in such a fashion need not be excluded on that account. See The Mandu, 11 F. Supp. 845 (E.D.N.Y. 1935). But cf. Nelson v. United States, 17 Fed. Cas. 1340 (No. 10,116) (C.C.D. Pa. 1816); Winthrop v. Union Ins. Co., 30 Fed. Cas. 376 (No. 17901) (C.C.D. Pa. 1807). The specific reference to the lack of an oath or a verbatim transcript is intended to be illustrative. Whether or to what degree the value or weight of the evidence may be affected by the method of taking or recording the testimony is left for determination according to the circumstances of the particular case, cf. Uebersee Finanz-Korporation, A. G. v. Brownell, 121 F. Supp. 420 (D.D.C. 1954); Danisch v. Guardian Life Ins. Co., 19 F.R.D. 235 (S.D.N.Y. 1956); the testimony may indeed be so devoid of substance or probative value as to warrant its exclusion altogether.

Some foreign countries are hostile to allowing a deposition to be taken in their country, especially by notice or commission, or to lending assistance in the taking of a deposition. Thus compliance with the terms of amended subdivision (b) may not in all cases ensure completion of a deposition abroad. Examination of the law and policy of the particular foreign country in advance of attempting a deposition is therefore advisable. See 4 Moore's Federal Practice ¶¶ 28.05-28.08 (2d ed. 1950). CROSS REFERENCES

Certification and filing of depositions by officer, see rule 30 (f).

Compensation of person taking deposition, see section 1821 of this title.

Foreign witnesses, depositions of, see section 1781 of this title.

Letters rogatory, failure to respond, see rule 37 (e). Taking responses to written interrogatories and preparation of record, see rule 31 (b).

United States commissioners

Authority to take depositions, see section 637 of this title.

Fees for taking and certifying depositions, see section 633 of this title.

Waiver as to disqualification of officer, see rule 32 (b). RULE 29. STIPULATIONS REGARDING THE TAKING OF

DEPOSITIONS

If the parties so stipulate in writing, depositions may be taken before any person, at any time or place,

upon any notice, and in any manner and when so taken may be used like other depositions.

RULE 30.-DEPOSITIONS UPON ORAL EXAMINATION (a) Notice of examination: Time and place.

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 him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time.

(b) Orders for the protection of parties and deponents.

After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

(c) Record of examination; oath; objections.

The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise. 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 interrogatories 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,