(a) When depositionsmay be taken. After commencement of the action, any party may take thetestimony of any person, including a party, by deposition upon oralexamination. Leave of court, granted with or without notice, must be obtainedonly if the plaintiff seeks to take a deposition prior to the expiration of 30days after service of the summons and complaint upon any defendant or servicemade under Rule 4(e), except that leave is not required (i) if a defendant hasserved a notice of taking deposition or otherwise sought discovery, or (ii) ifspecial notice is given as provided in subsection (b)(2) of this rule. Theattendance of witnesses may be compelled by subpoena as provided in Rule 45,provided that no subpoena need be served on a deponent who is a party or anofficer, director or managing agent of a party, provided the party has beenserved with notice pursuant to subsection (b)(1) of this rule. The depositionof a person confined in prison or of a patient receiving in‑patient carein or confined to an institution or hospital for the mentally ill or mentallyhandicapped may be taken only by leave of court on such terms as the courtprescribes.
(b) Notice ofexamination; general requirements; place of examination; special notice;nonstenographic recording; production of documents and things; deposition oforganization.
(1) A party desiring totake the deposition of any person upon oral examination shall give notice inwriting to every other party to the action. The notice shall state the time andplace for taking the deposition and the name and address of each person to beexamined, if known, and, if the name is not known, a general descriptionsufficient to identify him or the particular class or group to which hebelongs. If a subpoena duces tecum is to be served on the person to beexamined, the designation of the materials to be produced as set forth in thesubpoena shall be attached to or included in the notice. The notice shall beserved on all parties at least 15 days prior to the taking of the depositionwhen any party required to be served resides without the State and shall beserved on all parties at least 10 days prior to the taking of the depositionwhen all of the parties required to be served reside within the State.Depositions of parties, officers, directors or managing agents of parties or ofother persons designated pursuant to subsection (b)(6) hereof to testify onbehalf of a party may be taken only at the following places:
Aresident of the State may be required to attend for examination by depositiononly in the county wherein he resides or is employed or transacts his businessin person. A nonresident of the State may be required to attend for suchexamination only in the county wherein he resides or within 50 miles of theplace of service except that a judge, as defined by subdivision (h) of thisrule, may, upon motion showing good cause, require that a party who selectedthe county where the action is pending as the forum for the action or anofficer, director or managing agent of such a party, or a person designatedpursuant to subsection (b)(6) hereof to testify on behalf of such a partypresent himself for the taking of his deposition in the county where the actionis pending. The judge upon granting the motion may make any other ordersallowed by Rule 26(c) with respect thereto, including orders with respect tothe expenses of the deponent.
(2) Leave of court isnot required for the taking of a deposition by plaintiff if the notice (i)states that the person to be examined is about to go out of the county wherethe action is pending and more than 100 miles from the place of trial, or isabout to go out of the United States, or is bound on a voyage to sea, and willbe unavailable for examination unless his deposition is taken before expirationof the 30‑day period, and (ii) sets forth facts to support the statement.The plaintiff's attorney shall sign the notice, and his signature constitutes acertification by him that to the best of his knowledge, information, and beliefthe statement and supporting facts are true. The sanctions provided by Rule 11are applicable to the certification.
If aparty shows that when he was served with notice under this subsection (b)(2) hewas unable through the exercise of diligence to obtain counsel to represent himat the taking of the deposition, the deposition may not be used against him.
(3) The court may forcause shown enlarge or shorten the time for taking the deposition.
(4) Unless the courtorders otherwise, testimony at a deposition may be recorded by sound recording,sound‑and‑visual, or stenographic means. If the testimony is to betaken by other means in addition to or in lieu of stenographic means, thenotice shall state the methods by which it shall be taken and shall statewhether a stenographer will be present at the deposition. In the case of adeposition taken by stenographic means, the party that provides for thestenographer shall provide for the transcribing of the testimony taken. If thedeposition is by sound recording only, the party noticing the deposition shallprovide for the transcribing of the testimony taken. If the deposition is bysound‑and‑visual means, the appearance or demeanor of deponents orattorneys shall not be distorted through camera techniques. Regardless of themethod stated in the notice, any party or the deponent may have the testimonyrecorded by stenographic means.
(5) A party deponent,deponents who are officers, directors or managing agents of parties and otherpersons designated pursuant to subsection (b)(6) hereof to testify on behalf ofa party may not be served with a subpoena duces tecum, but the notice to aparty for the deposition of such a deponent may be accompanied by a requestmade in compliance with Rule 34 for the production of documents and tangiblethings at the taking of the deposition. The procedure of Rule 34, except as totime for response, shall apply to the request. When a notice to take such adeposition is accompanied by a request made in compliance with Rule 34 thenotice and the request must be served at least 15 days earlier than wouldotherwise be required by Rule 30(b)(1), and any objections to such a requestmust be served at least seven days prior to the taking of the deposition.
(6) A party may in hisnotice and in a subpoena name as the deponent a public or private corporationor a partnership or association or governmental agency and describe withreasonable particularity the matters on which examination is requested. In thatevent, the organization so named shall designate one or more officers,directors, or managing agents, or other persons who consent to testify on itsbehalf, and may set forth, for each person designated, the matters on which hewill testify. A subpoena shall advise a nonparty organization of its duty tomake such a designation. It shall not be necessary to serve a subpoena on anorganization which is a party, but the notice, served on a party without anaccompanying subpoena shall clearly advise such of its duty to make therequired designation. The persons so designated shall testify as to mattersknown or reasonably available to the organization. This subsection (b)(6) doesnot preclude taking a deposition by any other procedure authorized in theserules.
(7) The parties maystipulate in writing or the court may upon motion order that a deposition betaken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1) and45(d), a deposition taken by telephone is taken in the district and the placewhere the deponent is to answer questions propounded to him.
(c) Examination andcross‑examination; record of examination; oath; objections. Examinationand cross‑examination of witnesses may proceed as permitted at the trialunder the provisions of Rule 43(b). The person before whom the deposition is tobe taken shall put the deponent on oath and shall personally, or by someoneacting under his direction and in his presence, record the testimony of thedeponent. The testimony shall be taken stenographically or recorded by anyother means ordered in accordance with subsection (b)(4) of this rule. Ifrequested by one of the parties, the testimony shall be transcribed.
All objections made at thetime of the examination to the qualifications of the person before whom thedeposition is taken, or to the manner of taking it, or to the evidencepresented, or to the conduct of any party, and any other objection to theproceedings, shall be noted upon the deposition by the person before whom thedeposition is taken. Subject to any limitations imposed by orders enteredpursuant to Rule 26(c) or 30(d), evidence objected to shall be taken subject tothe objections. In lieu of participating in the oral examination, parties mayserve written questions in a sealed envelope on the party who served the noticeof taking the deposition, and he shall transmit them to the person before whomthe deposition is to be taken who shall open them at the deposition, propoundthem to the witness and record the answers verbatim.
(d) Motion to terminateor limit examination. At any time during the taking of the deposition, onmotion of a party or of the deponent and upon a showing that the examination isbeing conducted in bad faith or in such manner as unreasonably to annoy,embarrass, or oppress the deponent or party, a judge of the court in which theaction is pending or any judge in the county where the deposition is beingtaken may order before whom the examination is being taken to cease forthwithfrom taking the deposition, or may limit the scope and manner of the taking ofthe deposition as provided in Rule 26(c). If the order made terminates theexamination, it shall be resumed thereafter only upon the order of a judge ofthe court in which the action is pending. Upon demand of the objecting party ordeponent, the taking of the deposition shall be suspended for the timenecessary to make a motion for an order. The provisions of Rule 37(a)(4) applyto the award of expenses incurred in relation to the motion.
(e) Submission todeponent; changes; signing. The sound‑and‑visual recording, orthe transcript of it, if any, the transcript of the sound recording, or thetranscript of a deposition taken by stenographic means, shall be submitted tothe deponent for examination and shall be reviewed by the deponent, unless suchexamination and review are waived by the deponent and by the parties. If thereare changes in form or substance, the deponent shall sign a statement recitingsuch changes and the reasons given by the deponent for making them. The personadministering the oath shall indicate in the certificate prescribed bysubdivision (f)(1) whether any review was requested and, if so, shall appendany changes made by the deponent. The certificate shall then be signed by thedeponent, unless the parties by stipulation waive the signing or the deponentis ill or cannot be found or refuses to sign. If the certificate is not signedby the deponent within 30 days of its submission to him, the person before whomthe deposition was taken shall sign the certificate and state on thecertificate the fact of the waiver or of the illness or absence of the deponentor the fact of the refusal or failure to sign together with the reason, if any,given therefor; and the deposition may then be used as fully as though thecertificate were signed unless on a motion to suppress under Rule 32(d)(4) thecourt holds that the reasons given for the refusal to sign require rejection ofthe deposition in whole or in part.
(f) Certification byperson administering the oath; exhibits; copies.
(1) The personadministering the oath shall certify that the deponent was duly sworn by himand that the deposition is a true record of the testimony given by thedeponent. This certificate shall be in writing and accompany the sound‑and‑visualor sound recording or transcript of the deposition. He shall then place thedeposition in an envelope or package endorsed with the title of the action andmarked "Deposition of (here insert name of witness)" and shallpersonally deliver it or mail it by first class mail to the party taking thedeposition or his attorney who shall preserve it as the court's copy.
Documentsand things produced for inspection during the examination of the deponentshall, upon the request of a party, be marked for identification and annexed toand returned with the deposition, and may be inspected and copied by any party,except that (i) the person producing the materials may substitute copies to bemarked for identification, if he affords to all parties fair opportunity toverify the copies by comparison with the originals, and (ii) if the personproducing the materials requests their return, the person before whom thedeposition is taken shall mark them, give each party an opportunity to inspectand copy them, and return them to the person producing them, and the materialsmay then be used in the manner as if annexed to and returned with thedeposition. Any party may move for an order that the original be annexed to andreturned with the deposition to the court, pending final disposition of thecase.
(2) Upon payment ofreasonable charges therefor, the person administering the oath shall furnish acopy of the deposition to any party or to the deponent.
(3) Repealed by SessionLaws 2005‑138, s. 3, effective October 1, 2005.
(g) Failure to attendor to serve subpoena; expenses.
(1) If the party givingthe notice of the taking of a deposition fails to attend and proceed therewithand another party attends in person or by attorney pursuant to the notice, thejudge may order the party giving the notice to pay to such other party thereasonable expenses incurred by him and his attorney in attending, includingreasonable attorney's fees.
(2) If the party givingthe notice of the taking of a deposition of a witness fails to serve a subpoenaupon him and the witness because of such failure does not attend, and ifanother party attends in person or by attorney because he expects thedeposition of that witness to be taken, the judge may order the party givingthe notice to pay to such other party the reasonable expenses incurred by himand his attorney in attending, including reasonable attorney's fees.
(h) Judge; definition.
(1) In respect toactions in the superior court, a judge of the court in which the action ispending shall, for the purposes of this rule, and Rule 26, Rule 31, Rule 33,Rule 34, Rule 35, Rule 36 and Rule 37, be a superior court judge who hasjurisdiction pursuant to G.S. 7A‑47.1 or G.S. 7A‑48 in that county.
(2) In respect toactions in the district court, a judge of the court in which the action ispending shall, for the purposes of this rule, Rule 26, Rule 31, Rule 33, Rule34, Rule 35, Rule 36 and Rule 37, be the chief district judge or any judgedesignated by him pursuant to G.S. 7A‑192.
(3) In respect to actionsin either the superior court or the district court, a judge of the court in thecounty where the deposition is being taken shall, for the purposes of thisrule, be a superior court judge who has jurisdiction pursuant to G.S. 7A‑47.1or G.S. 7A‑48 in that county, or the chief judge of the district court orany judge designated by him pursuant to G.S. 7A‑192. (1967, c. 954, s. 1; 1973, c.828, s. 1; c. 1126, ss. 1, 2; 1975, c. 762, s. 2; 1977, c. 769; 1983, c. 201,s. 2; c. 801, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1037, s. 42; 1995, c. 353,ss. 1‑3; 1995 (Reg. Sess., 1996), c. 742, s. 4; 2005‑138, s. 3.)
(a) When depositionsmay be taken. After commencement of the action, any party may take thetestimony of any person, including a party, by deposition upon oralexamination. Leave of court, granted with or without notice, must be obtainedonly if the plaintiff seeks to take a deposition prior to the expiration of 30days after service of the summons and complaint upon any defendant or servicemade under Rule 4(e), except that leave is not required (i) if a defendant hasserved a notice of taking deposition or otherwise sought discovery, or (ii) ifspecial notice is given as provided in subsection (b)(2) of this rule. Theattendance of witnesses may be compelled by subpoena as provided in Rule 45,provided that no subpoena need be served on a deponent who is a party or anofficer, director or managing agent of a party, provided the party has beenserved with notice pursuant to subsection (b)(1) of this rule. The depositionof a person confined in prison or of a patient receiving in‑patient carein or confined to an institution or hospital for the mentally ill or mentallyhandicapped may be taken only by leave of court on such terms as the courtprescribes.
(b) Notice ofexamination; general requirements; place of examination; special notice;nonstenographic recording; production of documents and things; deposition oforganization.
(1) A party desiring totake the deposition of any person upon oral examination shall give notice inwriting to every other party to the action. The notice shall state the time andplace for taking the deposition and the name and address of each person to beexamined, if known, and, if the name is not known, a general descriptionsufficient to identify him or the particular class or group to which hebelongs. If a subpoena duces tecum is to be served on the person to beexamined, the designation of the materials to be produced as set forth in thesubpoena shall be attached to or included in the notice. The notice shall beserved on all parties at least 15 days prior to the taking of the depositionwhen any party required to be served resides without the State and shall beserved on all parties at least 10 days prior to the taking of the depositionwhen all of the parties required to be served reside within the State.Depositions of parties, officers, directors or managing agents of parties or ofother persons designated pursuant to subsection (b)(6) hereof to testify onbehalf of a party may be taken only at the following places:
Aresident of the State may be required to attend for examination by depositiononly in the county wherein he resides or is employed or transacts his businessin person. A nonresident of the State may be required to attend for suchexamination only in the county wherein he resides or within 50 miles of theplace of service except that a judge, as defined by subdivision (h) of thisrule, may, upon motion showing good cause, require that a party who selectedthe county where the action is pending as the forum for the action or anofficer, director or managing agent of such a party, or a person designatedpursuant to subsection (b)(6) hereof to testify on behalf of such a partypresent himself for the taking of his deposition in the county where the actionis pending. The judge upon granting the motion may make any other ordersallowed by Rule 26(c) with respect thereto, including orders with respect tothe expenses of the deponent.
(2) Leave of court isnot required for the taking of a deposition by plaintiff if the notice (i)states that the person to be examined is about to go out of the county wherethe action is pending and more than 100 miles from the place of trial, or isabout to go out of the United States, or is bound on a voyage to sea, and willbe unavailable for examination unless his deposition is taken before expirationof the 30‑day period, and (ii) sets forth facts to support the statement.The plaintiff's attorney shall sign the notice, and his signature constitutes acertification by him that to the best of his knowledge, information, and beliefthe statement and supporting facts are true. The sanctions provided by Rule 11are applicable to the certification.
If aparty shows that when he was served with notice under this subsection (b)(2) hewas unable through the exercise of diligence to obtain counsel to represent himat the taking of the deposition, the deposition may not be used against him.
(3) The court may forcause shown enlarge or shorten the time for taking the deposition.
(4) Unless the courtorders otherwise, testimony at a deposition may be recorded by sound recording,sound‑and‑visual, or stenographic means. If the testimony is to betaken by other means in addition to or in lieu of stenographic means, thenotice shall state the methods by which it shall be taken and shall statewhether a stenographer will be present at the deposition. In the case of adeposition taken by stenographic means, the party that provides for thestenographer shall provide for the transcribing of the testimony taken. If thedeposition is by sound recording only, the party noticing the deposition shallprovide for the transcribing of the testimony taken. If the deposition is bysound‑and‑visual means, the appearance or demeanor of deponents orattorneys shall not be distorted through camera techniques. Regardless of themethod stated in the notice, any party or the deponent may have the testimonyrecorded by stenographic means.
(5) A party deponent,deponents who are officers, directors or managing agents of parties and otherpersons designated pursuant to subsection (b)(6) hereof to testify on behalf ofa party may not be served with a subpoena duces tecum, but the notice to aparty for the deposition of such a deponent may be accompanied by a requestmade in compliance with Rule 34 for the production of documents and tangiblethings at the taking of the deposition. The procedure of Rule 34, except as totime for response, shall apply to the request. When a notice to take such adeposition is accompanied by a request made in compliance with Rule 34 thenotice and the request must be served at least 15 days earlier than wouldotherwise be required by Rule 30(b)(1), and any objections to such a requestmust be served at least seven days prior to the taking of the deposition.
(6) A party may in hisnotice and in a subpoena name as the deponent a public or private corporationor a partnership or association or governmental agency and describe withreasonable particularity the matters on which examination is requested. In thatevent, the organization so named shall designate one or more officers,directors, or managing agents, or other persons who consent to testify on itsbehalf, and may set forth, for each person designated, the matters on which hewill testify. A subpoena shall advise a nonparty organization of its duty tomake such a designation. It shall not be necessary to serve a subpoena on anorganization which is a party, but the notice, served on a party without anaccompanying subpoena shall clearly advise such of its duty to make therequired designation. The persons so designated shall testify as to mattersknown or reasonably available to the organization. This subsection (b)(6) doesnot preclude taking a deposition by any other procedure authorized in theserules.
(7) The parties maystipulate in writing or the court may upon motion order that a deposition betaken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1) and45(d), a deposition taken by telephone is taken in the district and the placewhere the deponent is to answer questions propounded to him.
(c) Examination andcross‑examination; record of examination; oath; objections. Examinationand cross‑examination of witnesses may proceed as permitted at the trialunder the provisions of Rule 43(b). The person before whom the deposition is tobe taken shall put the deponent on oath and shall personally, or by someoneacting under his direction and in his presence, record the testimony of thedeponent. The testimony shall be taken stenographically or recorded by anyother means ordered in accordance with subsection (b)(4) of this rule. Ifrequested by one of the parties, the testimony shall be transcribed.
All objections made at thetime of the examination to the qualifications of the person before whom thedeposition is taken, or to the manner of taking it, or to the evidencepresented, or to the conduct of any party, and any other objection to theproceedings, shall be noted upon the deposition by the person before whom thedeposition is taken. Subject to any limitations imposed by orders enteredpursuant to Rule 26(c) or 30(d), evidence objected to shall be taken subject tothe objections. In lieu of participating in the oral examination, parties mayserve written questions in a sealed envelope on the party who served the noticeof taking the deposition, and he shall transmit them to the person before whomthe deposition is to be taken who shall open them at the deposition, propoundthem to the witness and record the answers verbatim.
(d) Motion to terminateor limit examination. At any time during the taking of the deposition, onmotion of a party or of the deponent and upon a showing that the examination isbeing conducted in bad faith or in such manner as unreasonably to annoy,embarrass, or oppress the deponent or party, a judge of the court in which theaction is pending or any judge in the county where the deposition is beingtaken may order before whom the examination is being taken to cease forthwithfrom taking the deposition, or may limit the scope and manner of the taking ofthe deposition as provided in Rule 26(c). If the order made terminates theexamination, it shall be resumed thereafter only upon the order of a judge ofthe court in which the action is pending. Upon demand of the objecting party ordeponent, the taking of the deposition shall be suspended for the timenecessary to make a motion for an order. The provisions of Rule 37(a)(4) applyto the award of expenses incurred in relation to the motion.
(e) Submission todeponent; changes; signing. The sound‑and‑visual recording, orthe transcript of it, if any, the transcript of the sound recording, or thetranscript of a deposition taken by stenographic means, shall be submitted tothe deponent for examination and shall be reviewed by the deponent, unless suchexamination and review are waived by the deponent and by the parties. If thereare changes in form or substance, the deponent shall sign a statement recitingsuch changes and the reasons given by the deponent for making them. The personadministering the oath shall indicate in the certificate prescribed bysubdivision (f)(1) whether any review was requested and, if so, shall appendany changes made by the deponent. The certificate shall then be signed by thedeponent, unless the parties by stipulation waive the signing or the deponentis ill or cannot be found or refuses to sign. If the certificate is not signedby the deponent within 30 days of its submission to him, the person before whomthe deposition was taken shall sign the certificate and state on thecertificate the fact of the waiver or of the illness or absence of the deponentor the fact of the refusal or failure to sign together with the reason, if any,given therefor; and the deposition may then be used as fully as though thecertificate were signed unless on a motion to suppress under Rule 32(d)(4) thecourt holds that the reasons given for the refusal to sign require rejection ofthe deposition in whole or in part.
(f) Certification byperson administering the oath; exhibits; copies.
(1) The personadministering the oath shall certify that the deponent was duly sworn by himand that the deposition is a true record of the testimony given by thedeponent. This certificate shall be in writing and accompany the sound‑and‑visualor sound recording or transcript of the deposition. He shall then place thedeposition in an envelope or package endorsed with the title of the action andmarked "Deposition of (here insert name of witness)" and shallpersonally deliver it or mail it by first class mail to the party taking thedeposition or his attorney who shall preserve it as the court's copy.
Documentsand things produced for inspection during the examination of the deponentshall, upon the request of a party, be marked for identification and annexed toand returned with the deposition, and may be inspected and copied by any party,except that (i) the person producing the materials may substitute copies to bemarked for identification, if he affords to all parties fair opportunity toverify the copies by comparison with the originals, and (ii) if the personproducing the materials requests their return, the person before whom thedeposition is taken shall mark them, give each party an opportunity to inspectand copy them, and return them to the person producing them, and the materialsmay then be used in the manner as if annexed to and returned with thedeposition. Any party may move for an order that the original be annexed to andreturned with the deposition to the court, pending final disposition of thecase.
(2) Upon payment ofreasonable charges therefor, the person administering the oath shall furnish acopy of the deposition to any party or to the deponent.
(3) Repealed by SessionLaws 2005‑138, s. 3, effective October 1, 2005.
(g) Failure to attendor to serve subpoena; expenses.
(1) If the party givingthe notice of the taking of a deposition fails to attend and proceed therewithand another party attends in person or by attorney pursuant to the notice, thejudge may order the party giving the notice to pay to such other party thereasonable expenses incurred by him and his attorney in attending, includingreasonable attorney's fees.
(2) If the party givingthe notice of the taking of a deposition of a witness fails to serve a subpoenaupon him and the witness because of such failure does not attend, and ifanother party attends in person or by attorney because he expects thedeposition of that witness to be taken, the judge may order the party givingthe notice to pay to such other party the reasonable expenses incurred by himand his attorney in attending, including reasonable attorney's fees.
(h) Judge; definition.
(1) In respect toactions in the superior court, a judge of the court in which the action ispending shall, for the purposes of this rule, and Rule 26, Rule 31, Rule 33,Rule 34, Rule 35, Rule 36 and Rule 37, be a superior court judge who hasjurisdiction pursuant to G.S. 7A‑47.1 or G.S. 7A‑48 in that county.
(2) In respect toactions in the district court, a judge of the court in which the action ispending shall, for the purposes of this rule, Rule 26, Rule 31, Rule 33, Rule34, Rule 35, Rule 36 and Rule 37, be the chief district judge or any judgedesignated by him pursuant to G.S. 7A‑192.
(3) In respect to actionsin either the superior court or the district court, a judge of the court in thecounty where the deposition is being taken shall, for the purposes of thisrule, be a superior court judge who has jurisdiction pursuant to G.S. 7A‑47.1or G.S. 7A‑48 in that county, or the chief judge of the district court orany judge designated by him pursuant to G.S. 7A‑192. (1967, c. 954, s. 1; 1973, c.828, s. 1; c. 1126, ss. 1, 2; 1975, c. 762, s. 2; 1977, c. 769; 1983, c. 201,s. 2; c. 801, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1037, s. 42; 1995, c. 353,ss. 1‑3; 1995 (Reg. Sess., 1996), c. 742, s. 4; 2005‑138, s. 3.)
(a) When depositionsmay be taken. After commencement of the action, any party may take thetestimony of any person, including a party, by deposition upon oralexamination. Leave of court, granted with or without notice, must be obtainedonly if the plaintiff seeks to take a deposition prior to the expiration of 30days after service of the summons and complaint upon any defendant or servicemade under Rule 4(e), except that leave is not required (i) if a defendant hasserved a notice of taking deposition or otherwise sought discovery, or (ii) ifspecial notice is given as provided in subsection (b)(2) of this rule. Theattendance of witnesses may be compelled by subpoena as provided in Rule 45,provided that no subpoena need be served on a deponent who is a party or anofficer, director or managing agent of a party, provided the party has beenserved with notice pursuant to subsection (b)(1) of this rule. The depositionof a person confined in prison or of a patient receiving in‑patient carein or confined to an institution or hospital for the mentally ill or mentallyhandicapped may be taken only by leave of court on such terms as the courtprescribes.
(b) Notice ofexamination; general requirements; place of examination; special notice;nonstenographic recording; production of documents and things; deposition oforganization.
(1) A party desiring totake the deposition of any person upon oral examination shall give notice inwriting to every other party to the action. The notice shall state the time andplace for taking the deposition and the name and address of each person to beexamined, if known, and, if the name is not known, a general descriptionsufficient to identify him or the particular class or group to which hebelongs. If a subpoena duces tecum is to be served on the person to beexamined, the designation of the materials to be produced as set forth in thesubpoena shall be attached to or included in the notice. The notice shall beserved on all parties at least 15 days prior to the taking of the depositionwhen any party required to be served resides without the State and shall beserved on all parties at least 10 days prior to the taking of the depositionwhen all of the parties required to be served reside within the State.Depositions of parties, officers, directors or managing agents of parties or ofother persons designated pursuant to subsection (b)(6) hereof to testify onbehalf of a party may be taken only at the following places:
Aresident of the State may be required to attend for examination by depositiononly in the county wherein he resides or is employed or transacts his businessin person. A nonresident of the State may be required to attend for suchexamination only in the county wherein he resides or within 50 miles of theplace of service except that a judge, as defined by subdivision (h) of thisrule, may, upon motion showing good cause, require that a party who selectedthe county where the action is pending as the forum for the action or anofficer, director or managing agent of such a party, or a person designatedpursuant to subsection (b)(6) hereof to testify on behalf of such a partypresent himself for the taking of his deposition in the county where the actionis pending. The judge upon granting the motion may make any other ordersallowed by Rule 26(c) with respect thereto, including orders with respect tothe expenses of the deponent.
(2) Leave of court isnot required for the taking of a deposition by plaintiff if the notice (i)states that the person to be examined is about to go out of the county wherethe action is pending and more than 100 miles from the place of trial, or isabout to go out of the United States, or is bound on a voyage to sea, and willbe unavailable for examination unless his deposition is taken before expirationof the 30‑day period, and (ii) sets forth facts to support the statement.The plaintiff's attorney shall sign the notice, and his signature constitutes acertification by him that to the best of his knowledge, information, and beliefthe statement and supporting facts are true. The sanctions provided by Rule 11are applicable to the certification.
If aparty shows that when he was served with notice under this subsection (b)(2) hewas unable through the exercise of diligence to obtain counsel to represent himat the taking of the deposition, the deposition may not be used against him.
(3) The court may forcause shown enlarge or shorten the time for taking the deposition.
(4) Unless the courtorders otherwise, testimony at a deposition may be recorded by sound recording,sound‑and‑visual, or stenographic means. If the testimony is to betaken by other means in addition to or in lieu of stenographic means, thenotice shall state the methods by which it shall be taken and shall statewhether a stenographer will be present at the deposition. In the case of adeposition taken by stenographic means, the party that provides for thestenographer shall provide for the transcribing of the testimony taken. If thedeposition is by sound recording only, the party noticing the deposition shallprovide for the transcribing of the testimony taken. If the deposition is bysound‑and‑visual means, the appearance or demeanor of deponents orattorneys shall not be distorted through camera techniques. Regardless of themethod stated in the notice, any party or the deponent may have the testimonyrecorded by stenographic means.
(5) A party deponent,deponents who are officers, directors or managing agents of parties and otherpersons designated pursuant to subsection (b)(6) hereof to testify on behalf ofa party may not be served with a subpoena duces tecum, but the notice to aparty for the deposition of such a deponent may be accompanied by a requestmade in compliance with Rule 34 for the production of documents and tangiblethings at the taking of the deposition. The procedure of Rule 34, except as totime for response, shall apply to the request. When a notice to take such adeposition is accompanied by a request made in compliance with Rule 34 thenotice and the request must be served at least 15 days earlier than wouldotherwise be required by Rule 30(b)(1), and any objections to such a requestmust be served at least seven days prior to the taking of the deposition.
(6) A party may in hisnotice and in a subpoena name as the deponent a public or private corporationor a partnership or association or governmental agency and describe withreasonable particularity the matters on which examination is requested. In thatevent, the organization so named shall designate one or more officers,directors, or managing agents, or other persons who consent to testify on itsbehalf, and may set forth, for each person designated, the matters on which hewill testify. A subpoena shall advise a nonparty organization of its duty tomake such a designation. It shall not be necessary to serve a subpoena on anorganization which is a party, but the notice, served on a party without anaccompanying subpoena shall clearly advise such of its duty to make therequired designation. The persons so designated shall testify as to mattersknown or reasonably available to the organization. This subsection (b)(6) doesnot preclude taking a deposition by any other procedure authorized in theserules.
(7) The parties maystipulate in writing or the court may upon motion order that a deposition betaken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1) and45(d), a deposition taken by telephone is taken in the district and the placewhere the deponent is to answer questions propounded to him.
(c) Examination andcross‑examination; record of examination; oath; objections. Examinationand cross‑examination of witnesses may proceed as permitted at the trialunder the provisions of Rule 43(b). The person before whom the deposition is tobe taken shall put the deponent on oath and shall personally, or by someoneacting under his direction and in his presence, record the testimony of thedeponent. The testimony shall be taken stenographically or recorded by anyother means ordered in accordance with subsection (b)(4) of this rule. Ifrequested by one of the parties, the testimony shall be transcribed.
All objections made at thetime of the examination to the qualifications of the person before whom thedeposition is taken, or to the manner of taking it, or to the evidencepresented, or to the conduct of any party, and any other objection to theproceedings, shall be noted upon the deposition by the person before whom thedeposition is taken. Subject to any limitations imposed by orders enteredpursuant to Rule 26(c) or 30(d), evidence objected to shall be taken subject tothe objections. In lieu of participating in the oral examination, parties mayserve written questions in a sealed envelope on the party who served the noticeof taking the deposition, and he shall transmit them to the person before whomthe deposition is to be taken who shall open them at the deposition, propoundthem to the witness and record the answers verbatim.
(d) Motion to terminateor limit examination. At any time during the taking of the deposition, onmotion of a party or of the deponent and upon a showing that the examination isbeing conducted in bad faith or in such manner as unreasonably to annoy,embarrass, or oppress the deponent or party, a judge of the court in which theaction is pending or any judge in the county where the deposition is beingtaken may order before whom the examination is being taken to cease forthwithfrom taking the deposition, or may limit the scope and manner of the taking ofthe deposition as provided in Rule 26(c). If the order made terminates theexamination, it shall be resumed thereafter only upon the order of a judge ofthe court in which the action is pending. Upon demand of the objecting party ordeponent, the taking of the deposition shall be suspended for the timenecessary to make a motion for an order. The provisions of Rule 37(a)(4) applyto the award of expenses incurred in relation to the motion.
(e) Submission todeponent; changes; signing. The sound‑and‑visual recording, orthe transcript of it, if any, the transcript of the sound recording, or thetranscript of a deposition taken by stenographic means, shall be submitted tothe deponent for examination and shall be reviewed by the deponent, unless suchexamination and review are waived by the deponent and by the parties. If thereare changes in form or substance, the deponent shall sign a statement recitingsuch changes and the reasons given by the deponent for making them. The personadministering the oath shall indicate in the certificate prescribed bysubdivision (f)(1) whether any review was requested and, if so, shall appendany changes made by the deponent. The certificate shall then be signed by thedeponent, unless the parties by stipulation waive the signing or the deponentis ill or cannot be found or refuses to sign. If the certificate is not signedby the deponent within 30 days of its submission to him, the person before whomthe deposition was taken shall sign the certificate and state on thecertificate the fact of the waiver or of the illness or absence of the deponentor the fact of the refusal or failure to sign together with the reason, if any,given therefor; and the deposition may then be used as fully as though thecertificate were signed unless on a motion to suppress under Rule 32(d)(4) thecourt holds that the reasons given for the refusal to sign require rejection ofthe deposition in whole or in part.
(f) Certification byperson administering the oath; exhibits; copies.
(1) The personadministering the oath shall certify that the deponent was duly sworn by himand that the deposition is a true record of the testimony given by thedeponent. This certificate shall be in writing and accompany the sound‑and‑visualor sound recording or transcript of the deposition. He shall then place thedeposition in an envelope or package endorsed with the title of the action andmarked "Deposition of (here insert name of witness)" and shallpersonally deliver it or mail it by first class mail to the party taking thedeposition or his attorney who shall preserve it as the court's copy.
Documentsand things produced for inspection during the examination of the deponentshall, upon the request of a party, be marked for identification and annexed toand returned with the deposition, and may be inspected and copied by any party,except that (i) the person producing the materials may substitute copies to bemarked for identification, if he affords to all parties fair opportunity toverify the copies by comparison with the originals, and (ii) if the personproducing the materials requests their return, the person before whom thedeposition is taken shall mark them, give each party an opportunity to inspectand copy them, and return them to the person producing them, and the materialsmay then be used in the manner as if annexed to and returned with thedeposition. Any party may move for an order that the original be annexed to andreturned with the deposition to the court, pending final disposition of thecase.
(2) Upon payment ofreasonable charges therefor, the person administering the oath shall furnish acopy of the deposition to any party or to the deponent.
(3) Repealed by SessionLaws 2005‑138, s. 3, effective October 1, 2005.
(g) Failure to attendor to serve subpoena; expenses.
(1) If the party givingthe notice of the taking of a deposition fails to attend and proceed therewithand another party attends in person or by attorney pursuant to the notice, thejudge may order the party giving the notice to pay to such other party thereasonable expenses incurred by him and his attorney in attending, includingreasonable attorney's fees.
(2) If the party givingthe notice of the taking of a deposition of a witness fails to serve a subpoenaupon him and the witness because of such failure does not attend, and ifanother party attends in person or by attorney because he expects thedeposition of that witness to be taken, the judge may order the party givingthe notice to pay to such other party the reasonable expenses incurred by himand his attorney in attending, including reasonable attorney's fees.
(h) Judge; definition.
(1) In respect toactions in the superior court, a judge of the court in which the action ispending shall, for the purposes of this rule, and Rule 26, Rule 31, Rule 33,Rule 34, Rule 35, Rule 36 and Rule 37, be a superior court judge who hasjurisdiction pursuant to G.S. 7A‑47.1 or G.S. 7A‑48 in that county.
(2) In respect toactions in the district court, a judge of the court in which the action ispending shall, for the purposes of this rule, Rule 26, Rule 31, Rule 33, Rule34, Rule 35, Rule 36 and Rule 37, be the chief district judge or any judgedesignated by him pursuant to G.S. 7A‑192.
(3) In respect to actionsin either the superior court or the district court, a judge of the court in thecounty where the deposition is being taken shall, for the purposes of thisrule, be a superior court judge who has jurisdiction pursuant to G.S. 7A‑47.1or G.S. 7A‑48 in that county, or the chief judge of the district court orany judge designated by him pursuant to G.S. 7A‑192. (1967, c. 954, s. 1; 1973, c.828, s. 1; c. 1126, ss. 1, 2; 1975, c. 762, s. 2; 1977, c. 769; 1983, c. 201,s. 2; c. 801, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1037, s. 42; 1995, c. 353,ss. 1‑3; 1995 (Reg. Sess., 1996), c. 742, s. 4; 2005‑138, s. 3.)
