N.M. R. Civ. P. Dist. Ct. 1-031

As amended through August 23, 2024

Rule 1-031 - Depositions on written questions

A.Serving questions; notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of 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.

A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating:

(1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs; and

(2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Subparagraph (6) of Paragraph B of Rule 1-030 NMRA.

Within thirty (30) days after the notice and written questions are served, a party may serve cross-questions upon all other parties. Within ten (10) days after being served with cross-questions, a party may serve redirect questions upon all other parties. Within ten (10) days after being served with redirect questions, a party may serve recross-questions upon all other parties. The court may for cause shown enlarge or shorten the time.

B.Officer to take responses and prepare record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Paragraphs C, E and F of Rule 1-030 NMRA, to take the testimony of the witness in response to the questions and to prepare, certify and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him.

C.Notice of filing. When the deposition is filed, the party taking it shall promptly give notice thereof to all other parties.

N.M. R. Civ. P. Dist. Ct. 1-031

ANNOTATIONS Compiler's notes. - This rule, together with Rules 1-028, 1-030, 1-032 and 1-045 NMRA, is deemed to have superseded 45-101 to 45-119, C.S. 1929 (36-5-21 to 36-5-39, 1953 Comp., now repealed), insofar as those provisions related to the taking of depositions for use in the district courts. Additional subquestions require prior notice to party. - Pursuant to Subdivision (a) (see now Paragraph A) certain written interrogatories were submitted by the employer to the doctor and at the time they were answered several additional oral subquestions were asked by the reporter which were improper for the reporter to ask without prior notice to claimant, thereby giving him an opportunity to cross-examine. Thompson v. Banes Co., 1962-NMSC-143, 71 N.M. 154, 376 P.2d 574 (decided before 1979 amendment). Where undue hardship exists, examination outside forum permitted. - Upon a showing of special circumstances of undue hardship, a defendant may be required to examine plaintiff outside of the forum, and this may be by written interrogatories if they are suitable and appropriate for the purpose of eliciting the information to which defendant is entitled. Salitan v. Carrillo, 1961-NMSC-176, 69 N.M. 476, 368 P.2d 149 (decided before 1979 amendment). Written interrogation of out-of-state obligee unjust where resident obligor provides strong defense. - Where a resident obligor of an out-of-state child support obligation has provided evidence that constitutes a strong and convincing defense to the payment of support, the district court may order that the case be continued to allow the out-of-state obligee the opportunity to provide further evidence, either by appearing in person or by providing deposition testimony. Furthermore, the district court may order that if the obligee chooses to provide evidence by a deposition, then the petitioner-obligee must pay the costs of the obligor's attorney to travel to an out-of-state deposition. It would be unjust and inequitable to limit interrogation to written questions under these circumstances. State ex rel. California v. Ramirez, 1982-NMSC-141, 99 N.M. 92, 654 P.2d 545. Am. Jur. 2d, A.L.R. and C.J.S. references. - 20 Am. Jur. 2d Costs §§46 to 48; 23 Am. Jur. 2d Depositions and Discovery §§168 to 173. Conviction in another jurisdiction as disqualifying witness, 2 A.L.R.2d 579. Time for filing and serving discovery interrogatories, 74 A.L.R.2d 534. Propriety of considering answers to interrogatories in determining motion for summary judgment, 74 A.L.R.2d 984. Answer to interrogatory merely referring to other documents or sources of information, 96 A.L.R.2d 598. Party's right to use, as evidence in civil trial, his own testimony given upon interrogatories or depositions taken by opponent, 13 A.L.R.3d 1312. Disqualification of attorney, otherwise qualified, to take oath or acknowledgment from client, 21 A.L.R.3d 483. Taking deposition or serving interrogatories in civil case as waiver of incompetency, 23 A.L.R.3d 389. Tort or statutory liability for failure or refusal of witness to give testimony, 61 A.L.R.3d 1297. Propriety, on impeaching credibility of witness in civil case by showing former conviction, of questions relating to nature and extent of punishment, 67 A.L.R.3d 761. Answers to interrogatories as limiting answering party's proof at state trial, 86 A.L.R.3d 1089. 26A C.J.S. Depositions §§ 47 to 57, 65, 80.