Section 442-12-004 - Depositions Upon Oral Examination (Rule 30)004.01 When Depositions May Be TakenAfter filing a petition or appeal, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of the Commission, granted with or without notice, must be obtained only if the petitioner or appellant seeks to take a deposition prior to the expiration of thirty days after service of notice in lieu of summons, except that leave is not required:
004.01A If a defendant or appellee has served a notice of taking a deposition or otherwise sought discovery, or004.01B If special notice is given as provided in subdivision 004.02B of this rule. The attendance of witnesses may be compelled by subpoena.
004.02 Notice of Examination: General Requirements; Special Notice; Nonstenographic Recording; Production of Documents and Things; Deposition of Organization. 004.02A 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 petition or appeal. 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 her or the particular class or group to which he or she 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.004.02B Leave of the Commission is not required for the taking of a deposition by a petitioner or appellant if the notice: 004.02B1 States that the person to be examined is about to go out of the State of Nebraska and will be unavailable for examination in the State of Nebraska unless his or her deposition is taken before expiration of the thirty-day period, and004.02B2 Sets forth facts to support the statement. Legal counsel for petitioner or appellant shall sign the notice, and his or her signature constitutes a certification by him or her that to the best of his or her knowledge, information, and belief the statement and supporting facts are true.
If a party shows that when the party was served with notice under subdivision 004.02B the party was unable through the exercise of diligence to obtain legal counsel to represent the party at the taking of the deposition the deposition may not be used against the party.
004.02C The Commission may for cause shown enlarge or shorten the time for taking the deposition.004.02D The notice required by subdivision 004.02A shall state the manner in which the testimony will be recorded and preserved. The Commission may make any order necessary to assure that the record of the testimony will be accurate and trustworthy.004.02E The notice to a party may be accompanied by a request made in compliance with subsection 008 for the production of documents and tangible things at the taking of the deposition. The procedure of subsection 008 shall apply to the request.004.02F A party may in the party's notice and in a subpoena name as the witness 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 or she will testify. A subpoena shall advise a nonparty 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 004.02F does not preclude taking a deposition by any other procedure authorized in these rules.004.02G The parties may stipulate in writing or the Commission may upon motion order that a deposition be taken by telephone. 004.02H1 A party taking a deposition may have the testimony recorded by videotape. The notice of deposition shall specify that a videotape deposition is to be taken.004.02H2 Upon the request of any of the parties, the officer before whom a videotape deposition is taken shall provide, at the cost of the party making the request, a copy of the deposition in the form of a videotape, an audio recording, or a written transcript.004.02H3 When the 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. Any changes in form or substance which the witness desires to make shall be recorded on the videotape with a statement by the witness on such tape of the reasons given by him or her for making such changes.004.02H4 The officer before whom the videotape deposition is taken shall cause to be attached to the original videotape recording a certificate that the witness was duly sworn or affirmed by him or her and that the videotape recording is a true record of the testimony given by the witness. If the witness has not waived the right to a showing and examination of the videotape deposition, the witness shall also sign the certification.004.03 Examination and Cross-Examination; Record of Examination; Oath; ObjectionsExamination and cross-examination of witnesses may proceed as permitted at the hearing under the provisions of Neb. Rev. Stat. § 77-5016. 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 or her direction and in his or her presence, record the testimony of the witness. The testimony shall be recorded in accordance with subdivision 004.02D 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 the party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
004.04 Motion to Terminate or Limit ExaminationAt any time during the taking of the deposition on motion of a party or of the witness 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 witness or party, the Commission 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 subsection 001.03. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the Commission. Upon demand of the objecting party or witness the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of subsection 011.01C apply to the award of expenses incurred in relation to the motion.
004.05 When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him or her, 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, 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 006.03D the Commission holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.004.06 Certification; Delivery; Storage004.06A The officer shall certify on the deposition that the witness was truly sworn by him or her and that the deposition is a true record of the testimony of the witness. Unless otherwise ordered by the Commission, he or she shall then deliver the deposition to the party taking the deposition, who must store it under conditions that will protect it against loss, destruction, tampering, or deterioration. 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 or she may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he or she 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 the deposition, pending final disposition of the case.
004.06B Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the witness.004.06C The party taking the deposition shall give prompt notice to all other parties that it has been delivered by the officer before whom taken.004.07 Failure to Attend or to Serve Subpoena; Expenses 004.07A 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 through legal counsel pursuant to the notice the Commission may order the party giving the notice to pay to such other party the reasonable expenses incurred by the party and his or her legal counsel in attending.004.07B If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or through legal counsel because the party expects the deposition of that witness to be taken, the Commission may order the party giving the notice to pay to such other party the reasonable expenses incurred by the party and his or her legal counsel in attending.442 Neb. Admin. Code, ch. 12, § 004