N.M. R. Civ. P. Dist. Ct. 1-030
If a party shows that, when the party was served with notice under this subparagraph, 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.
The attendance of witnesses may be compelled by subpoena as provided in Rule 1-045 NMRA. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
N.M. R. Civ. P. Dist. Ct. 1-030
Committee commentary. - Paragraph E requires a deponent to sign a statement reciting any changes that the deponent makes to a deposition transcript and the reasons for those changes. The signed statement is then attached to the deposition transcript by the court reporter. Electronic transmission of documents is increasingly common, which raises the question of whether a facsimile of an original signed statement from a deponent is sufficient to meet the requirements of Paragraph E. The Committee believes that any electronically transmitted form of an original signed statement of a deponent meets the Rule's requirements. If a dispute arises regarding the authenticity of a signature to a signed statement, the burden of establishing the signature's authenticity is on the proponent of the electronically transmitted form of the original signed statement. Cf., e.g., Rule 11-1003 NMRA ("A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity . . . .").
Rule 1-030(C) NMRA provides that examination and cross-examination of witnesses may proceed as permitted at trial under the New Mexico Rules of Evidence, "except Rules 11-103 and 11-615 NMRA." The reference to Rule 11-615 NMRA addresses whether other potential deponents can attend a deposition. Rule 1-030(C) NMRA provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 1-026(C)(6) NMRA when appropriate; and, if exclusion is ordered, consideration should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions. Rule 1-030(C) NMRA addresses only the matter of attendance by potential deponents, and does not attempt to resolve issues concerning attendance by others, such as members of the public or press.
[Adopted by Supreme Court Order No. 14-8300-010, effective for all cases filed or pending on or after December 31, 2014; as amended by Supreme Court Order No. 20-8300-005, 7 effective for all cases pending or filed on or after December 31, 2020.]
ANNOTATIONS The 2011 amendment, approved by Supreme Court Order No. 11-8300-052, effective for cases filed or pending on or after February 17, 2012, in Paragraph B, deleted "notice of non-appearance" in the heading; in Paragraph C, changed "Paragraph B(2)" to "Subparagraph (2) of Paragraph B"; in Paragraph E, changed Paragraph F(1)" to "Subparagraph (1) of Paragraph F"; in Paragraph G, added "notice of non-appearance" in the heading; and made formatting changes throughout the rule. The 2006 amendment, approved by Supreme Court Order 06-8300-07, effective May 1, 2006, deleted the second sentence and added a new second and third sentence of Paragraph A requiring the parties to confer in good faith as to the scheduling of depositions to avoid scheduling conflicts of the parties, witnesses and counsel; added a new second sentence of Paragraph C requiring the examination to begin within thirty (30) minutes of the time scheduled; added the next to last sentence of Paragraph C requiring the exchange of documents before a deposition begins and providing that the officer taking the statement may go off the record only with the agreement of all parties, which shall not be unreasonably withheld; revised Subparagraph (1) of Paragraph D relating to the form of objections and interruptions; added Subparagraph (2) of Paragraph D relating to the length of time for a deposition; and relettererd Subparagraph (3) of Paragraph D as Subparagraph (2). The 2003 amendment, effective February 16, 2004, substituted "shall" for "must" in the second and last sentences of Paragraph A and in the first sentence of Subparagraph (1) of Paragraph D, inserted the third sentence of Paragraph C, inserted "and delivery" and deleted "notice of transcription" in the introductory language of Paragraph F, substituted the present second and third sentences for the former second and third sentences in Subparagraph (1) of that paragraph, which formerly read "if the deposition is transcribed, the officer shall provide the original of the deposition to the party ordering the transcription and shall give notice thereof to all parties. The party receiving the original shall maintain it, without alteration, until final disposition of the case in which it was taken or other order of the court", substituted "attached to and returned with the deposition. Documents and things produced for inspection" for "annexed to and returned with the deposition, and" near the end of that subparagraph, substituted "attached" for "annexed" in Subparagraphs (1)(a) and (1)(b) of that Paragraph F, and deleted "and returned with" preceding "the deposition" in the last sentence of Subparagraph (1)(b) of that paragraph. The second 2002 amendment, effective November 1, 2002, rewrote Paragraph B(7) which formerly read "The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. For the purposes of this rule and Rules 1-028(A), 1-037(A)(1) and 1-037(B)(1) NMRA, a deposition taken by such means is taken in the county and at a place where the deponent is to answer questions". The first 2002 amendment, effective May 1, 2002, added Paragraph D(1) and designated the existing text of Paragraph D as Paragraph D(2). The 1998 amendment, effective January 1, 1999, amended this rule to conform more closely to Rule 30 of the Federal Rules of Civil Procedure; the amendment rewrote Paragraphs A through C and E; in Paragraph D substituted "during a deposition" for "during the taking of the deposition"; in Paragraph F deleted references to filing from the heading, made gender neutral changes, and inserted "transcript or other recording of the" in Subparagraph (2); in Paragraph G made gender neutral changes and added Subparagraph (3); deleted former Paragraphs H and I, relating to what constitutes reasonable notice and opening of depositions; and redesignated former Paragraph J as present Paragraph H, rewriting that paragraph.
For scope of deposition, see Rule 1-026 NMRA. For use of depositions, see Rules 1-027 and 1-032 NMRA. For stipulations concerning depositions, see Rule 1-029 NMRA. For the effect of irregularities in taking depositions, see Rule 1-032 NMRA. For sanctions for noncompliance, see Rule 1-037 NMRA. For subpoena for taking depositions, see Rule 1-045 NMRA. For taxing deposition fees as costs, see 39-2-7 NMSA 1978. For the fees for recording depositions, see 39-2-8 NMSA 1978. For qualifications of the officer presiding over the deposition, see Rule 1-028 NMRA. For the duty of each party and each party's attorney's to participate in good faith in the framing of a discovery plan, see Paragraph F of Rule 1-026 NMRA. Compiler's notes. - Paragraphs A to F, and H, together with Rule 1-028 NMRA, are deemed to have superseded 45-401 to 45-406, and 45-408, C.S. 1929, which dealt with the same subject matter. Paragraph I of this rule, together with Rules 1-028, 1-031, 1-032 and 1-045 NMRA, is deemed to have superseded 45-101 to 45-119, C.S. 1929 (36-5-21 to 36-5-39, 1953 Comp., now repealed), insofar as those provisions related to the taking of depositions for use in the district courts. Court did not abuse its discretion by granting summary judgment without the benefit of a deposition where on June 2, 2004, the district court permitted plaintiffs to depose prior to a hearing on the motion for summary judgment, the court granted summary judgment on August 18, 2004, and the deposition transcript was returned on September 14, 2004. Paragon Found., Inc. v. New Mexico Livestock Bd., 2006-NMCA-004, 138 N.M. 761, 126 P.3d 577, cert. denied, 2006-NMCERT-001. Nature of taking of deposition. - The taking of a deposition by oral examination is not a special proceeding nor an end in itself but is merely in aid of some civil cause pending. Davis v. Tarbutton, 1931-NMSC-019, 35 N.M. 393, 298 P. 941. Burden on party taking deposition to comply with rules. - Rule 32(C)(4) (see now Rule 1-032 NMRA) and subdivision (E) (see now Paragraph E) of this rule were designed to put the burden on the party who takes the deposition to comply with the rules to avoid problems. If the party who has the burden fails to comply with the rules, the duty shifts to the opposing party to comply with the rules in order to protect his rights. Lawyers should not use these rules lackadaisically, especially so when use of a deposition at trial is an essential ingredient. Garcia v. Co-Con, Inc., 1981-NMCA-065, 96 N.M. 308, 629 P.2d 1237. Use of repetitious depositions within discretion of trial court. - The rules do not forbid plaintiff to retake the deposition of defendant; however, the use of repetitious depositions rests in the sound discretion of the trial court. Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36. Likewise continuance of trial to permit additional discovery. - Rule 26 (now this rule) should be construed so as to secure the just, speedy and inexpensive determination of every action. If in the sound discretion of the trial judge a trial should be continued so as to permit additional discovery; particularly where the need results from a previous failure to respond to efforts to take a deposition, the determination so made should not be reversed; whether a trial should be interrupted so as to permit further discovery must lie in the sound discretion of the trial judge. Wieneke v. Chalmers, 1963-NMSC-158, 73 N.M. 8, 385 P.2d 65. Party may lose right to take depositions. - Counsel is entitled of right to take depositions of any witness after commencement of his action, but where plaintiff had been warned and admonished on several occasions by the court to take whatever depositions he desired and to get ready for trial, where he was granted a continuance for the express purpose of taking depositions and where he was then again advised by the court to get ready for trial, it cannot be said the court abused its discretion in denying the plaintiff's motion to dismiss without prejudice and granting the defendant's motion to dismiss with prejudice. Emmco Ins. Co. v. Walker, 1953-NMSC-074, 57 N.M. 525, 260 P.2d 712. Delay in taking deposition not determinative. - Although two years passed after action was filed before defendant moved to take plaintiff's deposition, authorization of deposition was within trial judge's discretion where most of delay occurred before local lawyer entered the case for the defendant and where during most of the time of delay plaintiff had not taken affirmative action to bring the case to trial. Wieneke v. Chalmers, 1963-NMSC-158, 73 N.M. 8, 385 P.2d 65. Parties on same side of suit remain separate. - These rules, as well as the common understanding of what is meant by a party to a lawsuit, are inconsistent with the position that all parties on one side of a lawsuit are but one party. Romero v. Felter, 1972-NMSC-032, 83 N.M. 736, 497 P.2d 738. Notice of examination may be waived. - An attorney of record may waive notice of intention to apply for order authorizing taking of testimony by oral examination out of court. Davis v. Tarbutton, 1931-NMSC-019, 35 N.M. 393, 298 P. 941 (decided under former law). Scope of examination not limited absent specified showing. - The power of the court under Subdivision (d) (see now Paragraph D) to limit the scope of an examination should not be exercised in the absence of a showing that the examination is being conducted in bad faith and in such a manner as unreasonably to annoy, embarrass or oppress the opposite party. Salitan v. Carrillo, 1961-NMSC-176, 69 N.M. 476, 368 P.2d 149. Motion by opposing party prerequisite for order to limit scope of deposition. - The trial court errs in limiting, upon motion of plaintiff, the examination of defendant to the subject matter of questions that appear on 10 pages of the deposition and in ordering that the examination shall not extend beyond those questions; there is no rule of law that allows a district court to limit the examination of a witness, absent a motion by the opposing party pursuant to Subdivision (b) (see now Rule 1-026 ) and Subdivision (d) (see now Paragraph D). Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36. Deponent's attorney may not limit examination by improper conduct. - Prior to the taking of the deposition, the attorney for a deponent may ascertain, as a guide to his examination, what the deponent knows and the extent and limitation of his memory, but he does not have the right to go beyond proper objection; if necessary, he can seek relief from the court pursuant to Subdivision (b) (see now Rule 1-026 NMRA) and Subdivision (d) (see now Paragraph D). Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36. Waiver of objections to manner of taking deposition. - The taking of a deposition includes all steps necessary to obtain the testimony of the witness and the issuance of the commission, and joinder in the proceeding and submitting of cross-interrogatories amounts to a waiver of objections to the commission to take the deposition. Palatine Ins. Co. v. Santa Fe Mercantile Co., 1905-NMSC-026, 13 N.M. 241, 82 P. 363 (decided under former law). Employers may be present at discovery proceedings conducted by the environmental improvement division under these rules where the testimony of employees is taken by private depositions. Kent Nowlin Constr., Inc. v. Environmental Imp. Div., 1982 -NMSC-094, 99 N.M. 294, 657 P.2d 621. Ruling on short notice denying motion to quash deposition no excuse for nonappearance. - Where, on at least two occasions, appellant filed motion to quash depositions, and then did not appear even though the court had not ruled in one instance, and in the other did so on short notice from appellee, there were no grounds for complaint by appellant concerning the short notice since the court had not entered an order on the motion on the date set for the hearing. Wieneke v. Chalmers, 1963-NMSC-158, 73 N.M. 8, 385 P.2d 65. Insufficient excuse for failure to appear at deposition. - Bald, unsupported statement that to appear at a deposition was "utterly impossible for personal reasons" is no excuse for failing to appear. Wieneke v. Chalmers, 1963-NMSC-158, 73 N.M. 8, 385 P.2d 65. Absent special circumstances nonresident plaintiff must submit to deposition in forum. - The general rule is that a nonresident plaintiff should make himself available and must submit to oral examination in the forum in which he has brought his action, absent a showing of special circumstances or undue hardship. Salitan v. Carrillo, 1961-NMSC-176, 69 N.M. 476, 368 P.2d 149. Right of clerk in sister state to administer binding oaths. - Since Laws 1891, ch. 28, §6 (45-108, C.S. 1929, now superseded by these rules), recognized the right of a clerk of the district court of a sister state to administer oaths, such clerk could swear a lien-claimant to his claim. Genest v. Las Vegas Masonic Bldg. Ass'n, 1902-NMSC-003, 11 N.M. 251, 67 P. 743 (decided under former law). Signatures mandatory unless waived or sufficiently explained. - Where the word "shall" is used in Subdivision (e) (see now Paragraph E) it is mandatory; therefore, Subdivision (e) (see now Paragraph E) requires signing unless signature is waived or the reasons for no signature are stated as provided in the rule. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. There are two methods under which waiver of signature by parties is accomplished: (1) by stipulation of the parties that the signature is waived; and (2) absent a stipulation, by failure to file motion to suppress with reasonable promptness after the lack of signature is, or with due diligence, might have been ascertained. Garcia v. Co-Con, Inc., 1981-NMCA-065, 96 N.M. 308, 629 P.2d 1237. Silence following voiced agreement constitutes waiver. - Mere physical presence alone of an opposing lawyer who cross-examined the witnesses does not constitute a waiver of signature. However, silence amounts to assent when one lawyer says "it is stipulated and agreed," and the opposing lawyer remains silent. Garcia v. Co-Con, Inc., 1981-NMCA-065, 96 N.M. 308, 629 P.2d 1237. Failure to suppress where absence of signature known. - Where the plaintiff not only had ample time to ascertain the absence of a deponent's signature but also had actual knowledge within time to file a motion to suppress the deposition, but failed to do so, he waives the error. Garcia v. Co-Con, Inc., 1981-NMCA-065, 96 N.M. 308, 629 P.2d 1237. Unsigned depositions inadmissible. - Depositions are not admissible in evidence where the witness has not signed the deposition and the signature of the witness has not been waived by the party objecting to the deposition, or the provisions for use of the deposition where it is not signed have not been met. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Oaths administered over telephone. - Generally, a court reporter may not administer oaths over the telephone. Paragraph B(7) does not change the general rule, and the court reporter must administer the oath and take the deposition in the witness' presence. 1988 Op. Att'y Gen. No. 88-81. Law reviews. - For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982) and 13 N.M.L. Rev. 251 (1983). For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 20 Am. Jur. 2d Costs §88 et seq.; 23 Am. Jur. 2d Depositions and Discovery §§84, 85, 139 to 167, 192 to 198. Form, particularity and manner of designation required in subpoena duces tecum for production of corporate books, records and documents, 23 A.L.R.2d 862. Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586. Claimant's deposition or statement taken by municipality or other political subdivision as statutory notice of claim for injury or as waiver thereof, 41 A.L.R.2d 883. Right to take depositions in perpetual remembrance for use in pending action, where statute does not expressly grant or deny such right, 70 A.L.R.2d 674. Construction and effect of Rules 30(b), (d), 31(d), of the Federal Rules of Civil Procedure, and similar state statutes and rules, relating to preventing, limiting, or terminating the taking of depositions, 70 A.L.R.2d 685. Admissibility in evidence of enlarged photographs or photostatic copies, 72 A.L.R.2d 308. Availability of writ of prohibition to prevent illegal or unauthorized taking of depositions, 73 A.L.R.2d 1169. Time and place, under pretrial discovery procedure, for inspection and copying of opposing litigant's books, records and papers, 83 A.L.R.2d 302. Who is a "managing agent" of a corporate party whose discovery deposition may be taken under Federal Rules of Civil Procedure or state counterparts, 98 A.L.R.2d 622. Taking deposition or serving interrogatories in civil case as waiver of incompetency, 23 A.L.R.3d 389. Use of videotape to take deposition for presentation at civil trial in state court, 66 A.L.R.3d 637. Permissibility and standards for use of audio recording to take deposition in state civil case, 13 A.L.R.4th 775. Dismissal of state court action for failure or refusal of plaintiff to appear or answer questions at deposition or oral examination, 32 A.L.R.4th 212. 26A C.J.S. Depositions §§ 21, 27, 35, 39, 41, 51 to 57, 59, 60, 64 to 72, 75(1) to (4), 79 to 81, 83, 99 to 105; 27 C.J.S. Discovery § 4.