Neb. Sup. Ct. R. 6-330
Neb. Sup. Ct. R. 6-330
COMMENTS TO § 6-330
[1] Although depositions can normally be taken without leave of court, leave is required in the situations described in subpart (a)(2). The 2024 Amendments added a provision requiring leave to depose persons who have been previously deposed. Requiring leave in that situation is appropriate because being deposed more than once can be burdensome for the deponent. A court order is not necessary, however, if all the parties and the deponent stipulate to the second deposition.
[2] The title of § 6-330 is "Depositions by oral examination." Despite the title of the rule, a deposition is not an oral examination as defined by statute because it is not testimony in the presence of the trier of fact. See Neb. Rev. Stat. § 25-1243 (defining "oral examination" as "an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness"). It is instead a document in the form of a transcript or recording. See Neb. Rev. Stat. § 25-1242 (defining deposition as "a written declaration under oath or a videotape taken under oath in accordance with procedures provided by law"). Because a deposition is not an oral examination as defined by statute, the statutory limitations on oral testimony by videoconferencing or telephone do not apply to depositions.
[3] The rule originally required a court order or stipulation to take a deposition by videoconferencing or telephone. The requirement was eliminated by the 2024 Amendments. Subpart (a)(3) now allows a deposition to be taken "in person, by videoconferencing, by telephone, or by a combination of these methods." The reference to "a combination of these methods" means that there can be hybrid depositions, with some participants attending in person and others attending by another method such as videoconferencing. Furthermore, parties may attend a deposition by a method different than the method stated in the notice, provided that they give the other parties reasonable notice.
[4] Subpart (a)(3) also allows depositions to be taken by other methods with a stipulation or court order. The provision gives the courts and parties flexibility to use new technologies that may emerge in the future.
[5] Subpart (b) specifies what must be included in a deposition notice. Among other things, the notice must contain information about the software that will be used if the deposition will be taken by videoconferencing and instructions on how to join the call if the deposition will be taken by telephone.
[6] The notice must also state the recording method. Subpart (b)(4) authorizes three methods:
(1) stenographic,
(2) audio, and
(3) audiovisual. The deponent or another party may designate an additional recording method. In order to prevent different people from preparing different records of the deposition, subpart (b)(4)(B) provides that the additional recording must be prepared by the deposition officer (who is selected by the noticing party).
[7] Although the rule allows the testimony to be recorded by nonstenographic means, parties need to bear in mind that, as a practical matter, they will need to have a transcript prepared if they plan to use the deposition to support or oppose a motion, including, for example, a motion for summary judgment. Parties also need to bear in mind that they should have an audio or audiovisual recording made if an interpreter is used because, as a practical matter, without a record of the questions and answers in the interpreted language, they will be unable to assert later that the interpreter's interpretation was not accurate.
[8] Because of the increasing number of Nebraskans who may have difficulty communicating in the English language, there is an increased likelihood that the deponent will need the assistance of an interpreter. It is important for the parties to work together to ensure that an interpreter is used when necessary. Subpart (b)(1)(D) provides that if an interpreter will be used, the notice should state that and should also state the language that will be interpreted. If notice is silent about an interpreter but another party believes that one is necessary, then the other party should contact the noticing party. That way, both parties may avoid appearing for a deposition that would otherwise have to be canceled for lack of an interpreter. To facilitate parties working together, the rule requires the inclusion of an advisory statement in the notice.
[9] It is less likely that the noticing party will know if nonparties require an interpreter, and it is also less likely that nonparties will know to contact the noticing party if they do. Therefore, it is especially important that a subpoena served on a nonparty include the advisory statement. If a subpoena will be served on a nonparty witness, a party may give the other parties written notice of the deposition by serving them with a copy of the subpoena, provided that the subpoena contains the information required by the rule. Alternatively, a party may give the other parties written notice by serving them with a separate document that contains the information required by the rule. If the party does so, the party may omit the advisory statement from the notice because it will be contained in the subpoena served on the witness.
[10] Ideally, the parties should use a certified or provisionally certified interpreter for a deposition. That is not always possible in Nebraska, however, because there are a limited number of certified and provisionally certified interpreters in some languages. The rule therefore allows the use of registered interpreters if the noticing party has made reasonably diligent efforts to obtain a certified or provisionally certified interpreter and none are available. It is possible that no registered interpreters are reasonably available either. In that case, the parties need to agree on an interpreter, or the noticing party needs to file a motion for a court order.
[11] Among the factors that a court may consider in deciding whether to grant a motion to vary from the rule's interpreter hierarchy are: the availability, cost, and logistical difficulties of obtaining a certified, provisionally certified, or registered interpreter, the amount in controversy in the case, the significance of the testimony and the purpose for which it is sought (for example, steppingstone discovery as opposed to key evidence), and the competence and experience of the proposed interpreter.
[12] A party may seek the production of documents in connection with a deposition by either a document request served pursuant to § 6-334 or a subpoena duces tecum served pursuant to Neb. Rev. Stat. § 25-1224. The response time for a document request is normally 30 days. See § 6-334(c)(2)(A). The response time for a subpoena duces tecum is no less than 14 days. See § 6-334(A)(d)(5). It is possible that a subpoena duces tecum could be served on a party deponent in an attempt to circumvent the longer response time in § 6-334. To eliminate that possibility, the 2024 Amendments added a new sentence in § 6-330(b)(2)(A) to make it clear that the response times in § 6-334 apply to parties served with a subpoena duces tecum.
[13] A deposition can only be used against a party who was not present or represented at the deposition if the party had notice of the deposition. See § 6-332(a)(1)(A). Sometimes it is not possible to serve a party with a deposition notice because the party's identity or whereabouts are unknown. That may occur in a quiet title action. Historically, publication was the only method for giving notice. Subpart (b)(3) now allows the use of any other method reasonably calculated to give actual notice if the use of that method has been approved by the court. The standard stated in subpart (b)(3) is consistent with the standard for substitute service under Neb. Rev. Stat. § 25-517.02(3).
[14] Subpart (2) previously contained a provision that prohibited the use of a deposition against a party who made diligent but unsuccessful efforts to obtain a lawyer. The provision applied to depositions taken within 30 days of the service of the summons because the deponent was expected to leave the State. The 2024 Amendments moved the contents of provision to § 6-332(a)(5).
[15] Subpart (b)(6) governs depositions of organizations and, among other things, lists the types of organizations that may be deposed. The 2024 Amendments added "or other entity" at the end of the list to make it clear that organizations can be deposed regardless of their form. The 2024 Amendments also added a requirement that the deposing party and the deponent organization confer about the subjects of the deposition organization. Doing so may help the party to structure the deposition and also help the organization to identify the proper person(s) to testify on its behalf.
[16] The 2015 Amendments added a provision requiring the deposition officer to be in the same location as the deponent when the deposition was not taken in person. During the Covid-19 Pandemic, the officer and deponent were often in different locations without incident. Therefore, the requirement has been eliminated. The parties are free, however, to enter into a stipulation or to seek a court order regarding the officer's location for a particular deposition.
[17] Subpart (b)(7) specifies the officer's duties, which include stating on the record preliminary information such as the date and time of the deposition. If the deposition is recorded stenographically, the officer is not required to state the information orally. The officer can instead include the information in the transcript. The oath or affirmation, however, must be administered orally on the record.
[18] Subpart (c)(1) provides that the examination and cross-examination of the deponent proceed as they would at trial under the Nebraska Evidence Rules. The 2024 Amendments added two exceptions: Rule 103 and Rule 615. The reason for the Rule 103 exception is that a judge is usually not present at a deposition. The reason for the Rule 615 exception is to make it clear that persons who may be deposed in the future may not be excluded from deposition at the request of a party. If a party wants to exclude persons from the deposition, the party should file a motion for a protective order pursuant to § 6-326(d)(1)(E).
[19] Subpart (c)(2) governs objections. The 2015 Amendments added the requirement that the interpreter must be sworn and that an objection to the interpreter's qualifications must be recorded. The 2015 Amendments also add provisions on how objections must be stated and when a person may instruct the witness not to answer. Those provisions - which are modeled on Rule 30(c)(2) of the Federal Rules of Civil Procedure - are designed to eliminate speaking objections made for the purpose of disrupting the questioning or suggesting how the deponent should answer a question.
[20] The attorneys, the parties, and the deponent should behave in a professional and civil manner during a deposition. They should not use vulgar language, repeatedly interrupt each other, repeatedly make improper objections, or repeatedly give improper instructions not to answer. If a person engages in misconduct that impedes, delays, or frustrates the fair examination of the deponent, then the court has the discretion to impose sanctions under subpart (d)(1). Those sanctions may be monetary (for example, reasonable expenses or attorney fees) or nonmonetary (for example, admonishing an attorney or requiring the attorney to attend a continuing legal education program), or both.
[21] Subpart (d)(2)(A) allows a party to terminate a deposition if the interpreter's performance is so problematic that it undermines the usefulness of the deposition. It should be emphasized that a problem with how the interpreter handled a particular question or answer is insufficient to justify terminating a deposition. "'[I]nterpretation is a demanding and inexact art, and . . . the languages involved may not have precise equivalents for particular words or concepts.' Minor or isolated inaccuracies, omissions, interruptions, or other defects in translation are inevitable ...." Tapia-Reyes v. Excel Corp., 281 Neb. 15, 27, 793 N.W.2d 319, 328 (2011). Repeated problems, however, may signal that the interpretation is so fundamentally flawed that it would be pointless for the party to continue the deposition.
[22] Subpart (f) was amended in 2015 to streamline the procedures for review and use of the deposition. Under the prior version of the rule, the deponent had a right to review the deposition unless the right was waived by deponent and the parties. There was no time limit on review except for videotape depositions, which had to be reviewed immediately. The rule as amended requires the deponent or party to invoke the right of review before the end of the deposition and gives the deponent or party thirty days to review after being notified that the transcript or recording is available. The parties may agree or the court may order a different time. For example, a shorter time may be necessary when the deposition is taken a few days before trial. A signature is only required if (1) the deponent or a party invoked the right to review and (2) the deponent made changes to the testimony.
[23] Subpart (e)(2) is designed to make it clear to the deponent and to the parties that failing to invoke the right to review has serious consequences. The subpart provides that the transcript or recording of the deposition is deemed to be accurate if (1) the right to review was not invoked or (2) the right was invoked, no changes were submitted to the officer in the time and manner required by subpart (e)(1), and no motion to suppress was filed pursuant to subpart (e)(3).
[24] If the right to review is invoked, then the deponent has a duty to review the transcript or recording and make changes to correct any errors. If the deponent fails to do so, then the deponent cannot later seek to suppress the deposition on the ground that the transcription or interpretation was inaccurate. If the deponent invokes the right to review and determines that the transcription or interpretation is inherently inaccurate, however, the deponent may move to suppress the deposition instead of making changes. Even if the deponent makes changes, any other party who believes that the deposition is inherently inaccurate may move to suppress the deposition. The burden of proof is on the moving party.
[25] Subpart (f)(3) requires the officer to retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. This requirement mirrors Rule 30(f)(3) of the Federal Rules of Civil Procedure. Retaining the notes or a copy is necessary because the officer must furnish a copy of the transcript or recording if a party or the deponent later requests and pays for one.
[26] Subpart (f) previously contained a provision that required the deposing party to give notice to the other parties when the officer delivered the deposition. The provision was deleted in 2024 because the requirement is unnecessary.
[27] As a result of the growth of social media, it is much easier today for parties to disseminate sensitive portions of depositions in an attempt to harass or oppress their adversaries. Subpart (h) serves as a reminder that a court may enter a protective order pursuant to § 6-326(d)(1) to prevent parties from using the recording or transcription of a deposition for improper purposes.