RULE 75. DEPOSITIONS FOR DISCOVERY PURPOSES--WITHOUT CONSENT OF PARTIES IN CERTAIN CASES
- (a) When Depositions May Be Taken: After a notice of trial has
been issued or after a case has been assigned to a Judge or Special
Trial Judge of the Court, and within the time for completion of
discovery under Rule 70(a)(2), any party
may, without leave of Court, take a deposition for discovery
purposes of a non-party witness in the circumstances described in
paragraph (b) of this Rule. Unless the Court shall determine
otherwise for good cause shown, the taking of such a deposition
will not be regarded as sufficient ground for granting a
continuance from a date or place of trial theretofore set.
- (b) Availability: The taking of a deposition of a non-party
witness under this Rule is an extraordinary method of discovery and
may be used only where a non-party witness can give testimony or
possesses documents or things which are discoverable within the
meaning of Rule 70(b) and where such
testimony, documents, or things practicably cannot be obtained
through informal consultation or communication (Rule 70(a)(1)) or by a deposition taken with
consent of the parties (Rule 74). If
such requirements are satisfied, then a deposition may be taken
under this Rule, for example, where a party is a member of a
partnership and an issue in the case involves an adjustment with
respect to such partnership, or a party is a shareholder of an
electing small business corporation (as described in Code Section
1371(b) prior to the enactment of the Subchapter S Revision Act of
1982), and an issue in the case involves an adjustment with respect
to such corporation. See Title XXIV, relating to partnership
actions, brought under provisions first enacted by the Tax Equity
and Fiscal Responsibility Act of 1982.
- (c) Notice: A party desiring to take a deposition under this
Rule shall give notice in writing to every other party to the case
and to the non-party witness to be deposed. The notice shall state
that the deposition is to be taken under Rule 75 and shall set forth the name of the party
seeking the deposition, the name and address of the person to be
deposed, the time and place proposed for the deposition, and the
officer before whom the deposition is to be taken. If the
deposition is to be taken on written questions, a copy of the
questions shall be annexed to the notice.
- (d) Objections: Within 15 days after service of the notice of
deposition, a party or a non-party witness shall serve on the party
seeking the deposition any objections to the deposition. The burden
shall be upon the party seeking the deposition to move for an order
with respect to any such objections or any failure of the non-party
witness, and such party shall annex to any such motion the notice
of deposition with proof of service thereof, together with a copy
of any responses and objections. Prior to moving for such an order,
neither the notice nor the responses shall be filed with the
Court.
- (e) Other Applicable Rules: Depositions for discovery purposes
under this Rule shall be governed by the provisions of the
following Rules with respect to the matters to which they apply: Rule 74(d) (transcript), 74(e) (depositions upon written
questions), Rule 81(c) (designation of
person to testify), 81(e)
(person before whom deposition taken), 81(f) (taking of
deposition), 81(g) (expenses), 81(h) (execution, form, and return
of deposition), 81(i) (use of deposition),
and Rule 85(a), (b),
(c), (d), and (e) (objections and irregularities). For Rules
concerned with the timing and frequency of depositions,
supplementation of answers, protective orders, effect of evasive or
incomplete answers or responses, and sanctions and enforcement
action, see Title X.
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