Me. R. Civ. P. 30
The notice shall state:
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.
If a party shows that when the party was served with notice under this subdivision (b)(2) the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party.
Any party may object to the taking of a deposition on the grounds that the recording method is not one of those approved above, or that the recording method will not comply with one or more of the criteria in subdivision (B) above. Such an objection shall be served in writing and received by the other parties and the court at least 3 days prior to the scheduled date for the deposition. Where such an objection is served, the deposition shall be deferred until such time as the objection is heard by the court.
In a video deposition, the camera shall focus only on the witness and any exhibits utilized by the witness, unless the parties agree otherwise.
Any party may record a deposition by any means, provided that the recording does not disrupt or impede the deposition process. The method of recording specified in the notice by the party noticing the deposition shall constitute the only official record of the deposition. Any party intending to record a deposition by another means designated in subdivision (b)(4)(A) of this rule shall give notice in writing to every other party of the additional recording method.
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 may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
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 and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if the person producing the materials affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.
Advisory Committee's Notes 1985
Rule 30(f)(1) is amended simultaneously with the addition of Rule 26(f) to provide that the officer taking a deposition shall transmit it to the party that served the notice of taking, rather than to the clerk of court. The amendment is applicable in the District Court by virtue of its incorporation in M.D.C. Civ. R. 30. The requirement of the rule that the deposition be sealed has been eliminated since it is no longer necessary to insure the integrity of the original.
Advisory Committee's Notes 1987
The purpose of these amendments is to broaden the current rules relating to recording of depositions to accommodate technologies, particularly electronic recording and video recording which have developed or been perfected since the rule was last significantly revised in 1970. Additionally, the rules amendments avoid concern that the present rules may unduly restrict competition in this area. Further, it is hoped that the amended rules may present some opportunities for cost savings in discovery.
The amendments have the following features:
Multi-track tape considerably eases the task of identifying separate speakers on a tape. It should be evident that single-track tape recorders, such as the standard cassette recorders with single microphones, would not meet this criterion and would not be viewed as adequate for deposition recording.
Video camera recording also considerably simplifies identification of the speaker, because the focus is on the witness, who is the principal speaker, and the questioners can identify themselves separately. Further, questioner identification can be aided by proper operator records. Frequently video camera recording of depositions is supplemented by stenotype machine recording. However, if alternative adequate means are provided to separately identify speakers, stenotype machine supplement of video camera recording would not be needed in all cases. In video depositions, occasionally disputes have developed regarding proper focus of the camera. For that reason, the rule includes a provision that, unless the parties agree otherwise, the camera should focus only on the testifying witness and exhibits being utilized by that witness.
In addition to the listed methods, any other method may be used which is agreed to by the parties or approved by the court. This qualification recognizes that there may be other developments and alternative systems which may be appropriate; it also recognizes, as presently under Rule 29, that the parties can do virtually anything in discovery procedure by agreement.
The rule also establishes criteria which any deposition recording method must meet. The purpose is to permit greater flexibility in deposition taking methods by only setting criteria, rather than dictating the technology which must be used in taking the deposition. Generally, deposition recording methods which meet these criteria will be approved even where not listed specifically above. The criteria basically:
The rules also establish a procedure for making objections to deposition methods. The procedures would require that any objection be received in writing by both the court and other parties to the deposition at least three business days before the deposition is scheduled. This would allow sufficient time to either reschedule or rearrange the deposition if a prompt court hearing on the objection to the deposition could not be scheduled. The issues at the court hearing would be whether the recording methods were those approved by this rule, and whether the recording methods to be utilized meet the criteria set in the rule. The procedure authorizes automatic extension of the time for deposition until the objection is ruled on by the court. The rule drafters recognize that there is the potential in this rule for improper use of frivolous objections to obstruct or delay depositions. At the same time, some objection procedure appears to be necessary until experience is gained with alternative technologies. Where the court finds objections to be frivolous or asserted for the purpose of delay, the court could impose appropriate sanctions under Rule 11 or Rule 37.
The amended rule also indicates that any party may record a deposition by any means as long as it does not obstruct the deposition. This amendment in part recognizes the current practice under Rule 30(b)(4) which authorizes stenographic recording even if an alternative means of taking the deposition is used. In addition, it recognizes current problems which have developed where some persons, often indigent or pro se litigants, have brought tape recorders to depositions, seeking to have a means of preserving their testimony without undertaking the cost of purchase of a transcript. Such recording would be allowed under the rules provided that it in no way obstructed the deposition. However, the result of any recording would not be an official transcript of the proceedings and could not be used to compete in any way with the official transcript should the official transcript be used in court.
Rule 30(c) is amended for consistency with the simultaneous amendment of Rule 30(b)(4).
Rule 30(e) is amended to make clear that it is the responsibility of the officer before whom a deposition has been taken to present the transcribed deposition to the witness for signature and that the officer must then notify counsel whether or not the witness has signed the deposition. The changes will allow counsel to request the officer to sign and file the transcript in timely fashion so that, at trial, issues as to whether the deposition transcript has been properly handled so as to be usable in court may be minimized.
The catch-line of Rule 30(f) has been amended to eliminate a reference to filing by the officer, for consistency with the 1985 amendments eliminating the requirement of filing.
Rule 30(f)(3) has been added, consistent with the amendments of Rule 30(b), to allow the filing of a certification and evidence used at the deposition along with a cassette or other electronically preserved record of the deposition without the necessity for filing a transcript.
Me. R. Civ. P. 30
Advisory Note - November 2023
Subdivision (a) of Rule 30 is amended to include reference to service of notice regarding Electronic Service described in Rule 5(b).
Advisory Committee's Notes - 1989
Rule 30(b)(7) is added to provide that a deposition may be taken by telephone upon stipulation or order of the court. The amendment embodies the first sentence of Federal Rule 30(b)(7) added by amendment in 1980.
Advisory Committee's Notes - May 1, 1999
There are two significant amendments to Rule 30, one limiting the number and length of depositions and the other proscribing certain unfair tactics. Rule 30(a) now provides that each party may take no more than five depositions. The purpose of this amendment and the other new limitations in the discovery rules is to limit the amount of discovery a party may undertake as a matter of right. If a party proposes to take more than five depositions, court approval must be obtained by request under Rule 26(g). Just as the amendment does not limit the court authority to allow more than five depositions, the court also has the authority to limit the number of depositions to less than five in appropriate cases, such as where multiple parties represent a single interest. Thus, a case brought by a tort claimant for injury and by the claimant's spouse for loss of consortium may well be a candidate for the court deciding on motion that both parties represent a single interest for the purposes of the discovery limitations. The total length of a single deposition is also limited to eight hours under Rule 30(d)(2). Again, the court may alter the limitation "as justice requires" on application under Rule 26(g).
A second amendment to Rule 30 is made by a new subdivision (d)(1), taken from its federal counterpart. The amendment proscribes "speaking objections" at depositions that either burden the record with argument of counsel or suggest responses to the witness. The new subdivision also permits an instruction to a deponent not to answer a question only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court or to present a motion concerning the issue. Lawyers frequently complain that opposing counsel instruct witnesses not to answer questions on the grounds of relevance or other improper bases. The intent of the rule is to eliminate this practice by providing that the only proper occasion for an instruction not to answer is one in which the giving of the answer would make the invocation of a privilege or a limitation imposed by the court an empty exercise. Applications to the court under Rule 30(d)(1) should be made under Rule 26(g).
An amendment to the redesignated subdivision (d)(3) has no substantive affect. The language "during the taking of the deposition" has simply been changed to "during a deposition."
Advisory Note - January 1, 2003
The amendment to M.R. Civ. P. 30(b)(1)(A) requires a party to state in the notice whether a court reporter will be present to record the deposition. The intention of the amendment is to give an opposing party sufficient time to procure a court reporter if the recording method is to be one of the other methods permitted by the rule.
COMMENTS
§ 30.1 Deposition Objection Practice:
Today, much trial evidence is actually taken in depositions. See 7 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE 32.40-47 (3d ed. 2001). Where a deposition is offered at trial, M.R. Civ. P. 32(b) indicates that an objection may be made to all or a part of a deposition "for any reason which would require the exclusion of the evidence if the witness were then present and testifying." This suggestion that objections are proper if first presented at trial is qualified by M.R. Civ. P. 32(d)(3)(B) which states, in part, that errors or irregularities "of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition." The line between these two provisions of the Civil Rules is not easy to identify, and must be considered in the context of the view that objections during depositions are not favored except where absolutely essential. See 7 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE 30.43 [1] (3d. ed. 2001).
Deposition objection practice is necessarily different from trial objection practice because deposition witnesses must answer objected-to questions, unless the objection is based on a privilege, and because no hearing officer is present. Anticipating use of deposition testimony at trial and the editing out of objected-to material, M.R. Civ. P. 30(b)(4)(D), requires that:
Any method for recording a deposition shall:
. . . .
(D) Permit editing for use at trial in a manner that will allow expeditious removal of objectionable and extraneous material without significant disruption in presentation of the edited testimony to a jury [.]
Deposition objection practice is directly addressed in M.R. Civ. P. 30(c) and (d).
Appellate precedent addressing deposition objection practice is sparse. Where evidentiary issues arise in the course of the taking or use of deposition testimony, the issues are usually resolved by trial courts in ways that rarely surface in appellate opinions. See 7 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE 30.43 (3d ed. 2001) (discussing objections during depositions with citations mostly to Federal Rules Decisions of United States District Courts); Accordingly, the observations in this deposition objection practice comment rely more on experience and review of the rules.
Key Points:
* The Question Gets Answered Anyway.
In deposition objection practice, the objectionable question must be answered, unless it addresses a matter subject to a privilege or any area specifically excluded by a court order that is directed to the particular case or deposition. M.R. Civ. P. 30(d)(1). Thus, deposition objections really serve two purposes. First, the objection identifies the challenged question, area of inquiry, or manner of inquiry for later judicial review. Second, the objection identifies the area of challenge to the opposing party and gives that party the opportunity to correct any problem by a revised approach to questioning.
* Opportunity to Correct is Important.
The notice and opportunity to correct function of deposition objections is very important for both sides. See M.R. Civ. P. 32(d)(3) B). Depositions may be taken years before they are used at trial. At the time the deposition is to be used, the deposed witness may be unavailable or correction of problems identified by the objection may be impractical. In those circumstances, on a close question, a trial judge may be more likely to exclude objectionable material from a deposition to be presented at trial if a timely objection was made during the deposition. If the questioning party was given the opportunity to correct the problem and chose not to, there is a better argument for exclusion than if there was no objection or notice to the questioning party and the objection is being lodged for the first time, perhaps years later, on the eve of trial.
* Keep The Objection Short.
As with trial objections, deposition objections must be short and to the point. Deposition objections should be sufficient to identify the objectionable matter and put questioning counsel on notice as to the basis of the objection, but no more. Spending a lot of time making objections at deposition suggests counsel is engaging in tactics to delay or disrupt the deposition, a practice that violates Rule 30(d), is unethical and is likely to be subject to unfavorable review by any court.
* No Coaching.
Deposition objections must "be stated concisely and in a non-argumentative and non-suggestive manner." M.R. Civ. P. 30(d)(1). Coaching a witness, by using objections, is bad practice and may be turned against a party at trial with a suggestion that counsel was telling the witness what to say.
* Depositions Are Not the End of the Game.
Regardless of the role counsel plays in a deposition, remember that the deposition is not an end in itself, but a stage in the information development process. The significance of various portions of the deposition may only become apparent later in motions for summary judgment, motions for sanctions, or at trial to impeach, support or replace live testimony. Keep aware of the possibility for long term, perhaps unanticipated, impacts as you consider how to conduct yourself and question witnesses in a deposition.
* Preparing For Trial: A Three-Step Process.
There are three steps in preparing any deposition for use at trial.
First, review the deposition, preferably in concert with the other parties, and remove any objectionable or extraneous material. Failure to properly review and edit the deposition transcript is one of the biggest problems in presenting depositions at trial, either by reading them or presenting them by video. Remember to remove "objectionable and extraneous" material. M.R. Civ. P. 30(b)(4)(D). Too often the editing process focuses on objections, nothing more. Depositions presented at trial regularly include irrelevant questions and answers, colloquy of counsel about the objections and, in video depositions, periods of silence or rustling papers while witnesses search through their records for answers to questions. All of this is extraneous material. All of it should be removed, leaving for the fact-finder's review only the admissible evidence that is important for the case. See Maine Jury Instruction Manual § 3-5(4th ed. 2001) (Editing and Summarizing Depositions).
Second, once the preliminary review is completed and if the matter is to be presented to a jury, the parties should meet with the court in advance of trial to resolve any disputes as to areas that should be included or excluded from the presentation of the deposition at trial.
Third, once review with the court is completed, the deposition should be edited again to remove objectionable material, extraneous material and any other matters unnecessary to the case so that the deposition can be presented to the fact-finder.
As noted above, a deposition must be taken in a manner such that the deposition, after editing, can be presented in a coherent fashion to the fact-finder. M.R. Civ. P. 30(b)(4)(D).
Advisory Note - February 2018
The substantive amendment to Rule 30(b)(4) permits recording by any party at a deposition. Specifically, it provides that, upon notice in writing to all other parties, a party may make a recording by another means listed in Rule 30(b)(4)(A). The amendment does not change the current language that "[t]he method of recording specified in the notice by the party noticing the deposition shall constitute the only official record of the deposition." The purpose of the amendment is to allow parties to make a recording for their own trial preparations.
In addition, the amendment adjusts the lettering and numbering of the two lists in Rule 30(b)(4) to eliminate the use of the same subdivision letters for two separate lists. As amended, Rule 30(b)(4)(A) contains the list of methods for recording a deposition, and Rule 30(b)(4)(B) contains the list of criteria that must be satisfied when employing any method for recording a deposition.
Advisory Note - December 2020
Rule 30(h) is amended to bring the Maine Rules of Civil Procedure into conformity with the Uniform Interstate Depositions and Discovery Act.