Neb. Sup. Ct. R. 6-330
The attendance of witnesses may be compelled by subpoena. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
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.
Neb. Sup. Ct. R. 6-330
COMMENTS TO RULE 30
30(b)(1) 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. Rule 30(b)(1)(A) 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.
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 document because it will be contained in the subpoena served on the witness.
Parties sometimes attempt to circumvent the thirty-day period for responding to Rule 34 requests by serving a subpoena on the party. Rule 30(b)(1)(C) makes it clear that document subpoenas should only be served on nonparty deponents.
A deposition can only be used against a party who had notice of the deposition. See Rule 32(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 has been the only method for giving notice. Rule 30(b)(1)(D) 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. This is the standard for substitute service under Neb. Rev. Stat. § 25-517.02(3).
30(b)(4) The rule previously provided that the notice had to state the means by which the testimony would be recorded but did not specify what those means were. The assumption was that the testimony would be recorded by stenographic means. Former Rule 30(b)(8) added a second option: videotape depositions. The rule as amended provides for three means: (1) stenographic, (2) audio, and (3) audiovisual. The term "audiovisual" is used because "videotape" refers to an outdated form of recording technology (magnetic tape).
The rules previously did not discuss whether the opposing party could designate an additional means of recording the deposition. Rule 30(b)(4)(B) now makes it clear that the opposing party may do so. In order to prevent different persons from preparing different records of the deposition, the rule provides that the additional recording must be prepared by the deposition officer (who is selected by the noticing party).
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.
30(b)(5) 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 tracks Neb. Ct. R. § 6-703 and 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.
Among the factors that a court may consider in deciding whether to grant a motion to vary from the rule's interpreter hierarchy are: 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.
30(b)(7) The rule has been amended to allow depositions to be taken by remote means other than telephone - for example, by video conferencing technology - but only pursuant to a stipulation or court order. The rule has also been amended to eliminate the uncertainty about whether the officer must be in the same physical location as the deponent. The rule as amended provides that they must be in the same location absent a court order or stipulation otherwise. One reason for having the officer and the deponent in the same location is to minimize the risk of improper behavior such as coaching of the witness or the surreptitious use of documents. There are other ways of minimizing the risk. For example, the parties may stipulate that a notary be present in the same location as the deponent and administer the oath to the deponent but the officer who is stenographically recording the deposition may be present in the same location as the person or attorney taking the deposition.
30(b)(8) The former rule governed videotape depositions and had special provisions that governed the review of such depositions. The provisions of Rule 30(e) now apply to the review of all depositions, regardless of how they were recorded. Rule 30(b)(8) as amended is substantially the same as the current version of Rule 30(b)(5) of the Federal Rules of Civil Procedure. The rule as amended sets out the deposition officer's duties at the beginning and end of the deposition. It also sets out the officer's duties during a deposition in which the testimony is recorded by audio or audiovisual means.
30(c) The rule has been divided into three subdivisions. The first addresses the order of examination and the officer's obligation to record all objections. It is substantially similar to former Rule 30(c). The major differences are the addition of a requirement that the interpreter be sworn and the inclusion of an objection to the interpreter's qualifications in the list of objections that must be recorded. The second subdivision is modeled on Rule 30(c)(2) of the Federal Rules of Civil Procedure and is designed to eliminate speaking objections that are made for the purpose of disrupting the questioning or suggesting how the deponent should answer a question. The third subdivision is taken from the last sentence of the former rule.
30(d) The rule has been amended to add a provision allowing 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.
30(e) The rule has been amended to streamline the procedures for review and use of the deposition. Under the former rule, the deponent had a right to review 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 to 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 the right to review was invoked and the deponent made changes to the testimony.
If the right to review is not invoked, or if invoked no changes are submitted to the officer in the time and manner required in subdivision (1) and no motion to suppress is filed pursuant to subdivision (3), then the transcript or recording of the deposition is deemed to be accurate. Subdivision (2) of the rule is designed to make it clear to the deponent and to the parties that failing to invoke the right to review has serious consequences. 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.
30(f)(2) of the rule has been amended to require the officer to retain the stenographic notes of a deposition taken stenographically or a copy of the recoding 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.
30(g) The former language of the rule has been replaced by the current language of Rule 30(g) of the Federal Rules of Civil Procedure. The new language is easier to read and makes no substantive changes.
30(h) This subdivision is new. As a result of the growth of electronic media, it is much easier today for parties to disseminate sensitive portions of depositions in an attempt to harass or oppress their adversaries. This subdivision serves as a reminder that courts may enter appropriate orders pursuant to Rule 26(c) to prevent parties from using the recording or transcription of a deposition for improper purposes.