Rule 28. Persons before whom depositions may be taken

Alabama Rules of Civil Procedure

V. DEPOSITIONS AND DISCOVERY

Rule 28.

Persons before whom depositions may be taken.

(a)

Depositions taken within the United States to be used in this state.

Within the United States or within a territory or insular possession subject to the

jurisdiction of the United States, depositions to be used in this State shall be taken

before an officer authorized to administer oaths by the laws of the United States,

or of the State of Alabama, or of the place where the examination is held, or before

a person appointed by the court in which the action is pending. A person so

appointed has power to administer oaths and take testimony.

(b)

Depositions taken in foreign countries to be used in this state. In a

foreign country, depositions to be used in this state may be taken (1) on notice

before a person authorized to administer oaths in the place in which the

examination is held, either by the law thereof or by the law of the United States, or

(2) before a person commissioned by the court, and a person so commissioned

shall have the power, by virtue of the commission, to administer any necessary

oath and take testimony, or (3) pursuant to letters rogatory or a letter of request, or

(4) pursuant to any applicable treaty or convention. A commission or letters

rogatory or a letter of request shall be issued on application and notice and on

terms that are just and appropriate. It is not requisite to the issuance of a

commission or letters rogatory or a letter of request that the taking of the deposition

in any other manner be impracticable or inconvenient; and both a commission and

letters rogatory or a letter of request may be issued in proper cases. A notice or

commission may designate the person before whom the deposition is to be taken

either by name or by descriptive title

uisite to the issuance of a

commission or letters rogatory or a letter of request that the taking of the deposition

in any other manner be impracticable or inconvenient; and both a commission and

letters rogatory or a letter of request may be issued in proper cases. A notice or

commission may designate the person before whom the deposition is to be taken

either by name or by descriptive title. Letters rogatory or a letter of request may be

addressed “To the Appropriate Authority in [here name the country].” When a letter

of request or any other device is used pursuant to any applicable treaty or

convention, it shall be styled in the form prescribed by that treaty or convention.

Evidence obtained in response to letters rogatory or a letter of request need not

be excluded merely for the reason that it is not a verbatim transcript or that the

testimony was not taken under oath or for any similar departure from the

requirements for depositions taken within the United States under these rules.

(c)

Depositions taken within this state to be used outside this state. A

person desiring to take depositions in this state to be used in proceedings pending

in the courts of any other state or country may produce to a judge of the circuit

where the witness resides a commission authorizing the taking of such depositions

or proof of notice duly served, whereupon it shall be the duty of the judge to issue,

pursuant to Rule 45, the necessary subpoenas. Orders of the character provided

for in Rules 30(d), 37(a)(1), 37(b)(1), and 45(c) may be made upon proper

application therefor by the person to whom such a subpoena is directed. Failure

by any person without adequate excuse to obey a subpoena served upon that

person pursuant to this rule may be deemed a contempt of the court from which

the subpoena issued.

Rule 45, the necessary subpoenas. Orders of the character provided

for in Rules 30(d), 37(a)(1), 37(b)(1), and 45(c) may be made upon proper

application therefor by the person to whom such a subpoena is directed. Failure

by any person without adequate excuse to obey a subpoena served upon that

person pursuant to this rule may be deemed a contempt of the court from which

the subpoena issued.

(d)

Disqualification for interest. No deposition shall be taken before a

person who is a relative, employee, attorney or counsel of any of the parties, or

who is a relative or employee of such attorney or counsel, or who is financially

interested in the action.

(dc) District court rule. Rule 28(a), Rule 28(b), and Rule 28(d) apply in the

district courts in those instances when depositions on written questions or

depositions on oral examination are permitted by Rule 26(dc). Rule 28(c) does not

apply in the district courts.

[Amended 1-21-86, eff. 9-1-87; Amended eff. 10-1-95.]

Committee Comments on 1973 Adoption

Rule 28(a) is based generally on Federal Rule 28(a). It provides a broad

class of persons before whom depositions may be taken for use in Alabama

actions.

As is indicated by that part of Rule 28(a) which authorizes taking a

deposition before “an officer authorized to administer oaths by the laws …

of the

state or other place where the examination is held …”, depositions for use

in Alabama actions need not be taken within the state. They may be taken

wherever the party noticing the taking of the depositions desires, subject to the

power of the court under Rule 26(c) to make a protective order barring taking of

the deposition at the place indicated. But a subpoena to require the witness to

attend the deposition will not run outside the state. See Rule 45(d). This is

immaterial where it is the deposition of a party which is sought. The mere notice of

taking the deposition is enough to require a party to attend, Rule 30, and no

subpoena is needed

Rule 26(c) to make a protective order barring taking of

the deposition at the place indicated. But a subpoena to require the witness to

attend the deposition will not run outside the state. See Rule 45(d). This is

immaterial where it is the deposition of a party which is sought. The mere notice of

taking the deposition is enough to require a party to attend, Rule 30, and no

subpoena is needed. But these rules do not and cannot provide any means to

compel a recalcitrant non-party witness who cannot be served within the state to

attend the taking of a deposition. Many states, however, have statutes like Rule

28(b) making their subpoena power available to compel their residents to appear

for depositions to be used in foreign actions.

Rule 28(b) is closely modeled on Ky.R.C.P. 28.03, and is substantially

similar to Code of Ala., Tit. 7, § 464. It provides a procedure for compelling

residents of Alabama to attend deposition hearings here for use in actions pending

in other states and countries, of the same sort as the similar courtesy which many

states extend where the testimony of their residents is needed for use in Alabama

actions.

Committee Comments to Amendment to Rule 28

Effective September 1, 1987

Rule 28(a) is virtually identical to Rule 28(a), Federal Rules of Civil

Procedure. It provides a broad class of persons before whom depositions may be

taken for use in Alabama actions. This amendment revised slightly the wording of

Rule 28(a) to more nearly parallel the wording of the Federal Rule.

As is indicated by that part of Rule 28(a) which authorizes taking a

deposition before “an officer authorized to administer oaths by the laws … of the

place where the examination is held …”, depositions for use in Alabama actions

need not be taken within the state. They may be taken wherever the party noticing

the taking of the depositions desires, subject to the power of the Court under Rule

26(c) to make a protective order barring taking of the deposition at the place

indicated

n officer authorized to administer oaths by the laws … of the

place where the examination is held …”, depositions for use in Alabama actions

need not be taken within the state. They may be taken wherever the party noticing

the taking of the depositions desires, subject to the power of the Court under Rule

26(c) to make a protective order barring taking of the deposition at the place

indicated. But a subpoena to require the witness to attend the deposition will not

run outside the state. See Rule 45(d). This is immaterial where it is the deposition

of a party which is sought. The mere notice of taking the deposition is enough to

require a party to attend, Rule 30, and no subpoena is needed. But these rules do

not and cannot provide a recalcitrant non-party witness who cannot be served

within the state to attend the taking of a

deposition. Many states, however, have statutes like Rule 28(c) making their

subpoena power available to compel their residents to appear for depositions to

be used in foreign actions.

Rule 28(b) was added by the 1987 Amendment. This rule is modeled on

Federal Rule 28(b) and was added to facilitate discovery in foreign countries to be

used in this state, pursuant to these rules.

The taking of depositions in foreign countries which are signatories to the

Hague Convention through letters rogatory or letters of request must conform to

the provisions of the Hague Convention on The Taking of Evidence Abroad in Civil

or Commercial Matters of March 18, 1970. Appended to the Convention is a

specific form for requesting international judicial assistance in taking evidence in a

foreign country. See Note to 28 U.S.C. § 1781 (1982).

The necessity for complying precisely with the requirements of a treaty or

convention to which the United States is a signatory is demonstrated by Rivers v

vidence Abroad in Civil

or Commercial Matters of March 18, 1970. Appended to the Convention is a

specific form for requesting international judicial assistance in taking evidence in a

foreign country. See Note to 28 U.S.C. § 1781 (1982).

The necessity for complying precisely with the requirements of a treaty or

convention to which the United States is a signatory is demonstrated by Rivers v.

Stihl, Inc., 434 So.2d 766 (Ala.1983), which held service of process under Rule

4.4(b)(1) insufficient where the provisions of the Hague Convention on The Service

Abroad of Judicial and Extrajudicial Documents In Civil or Commercial Matters of

November 15, 1965, were not precisely followed. For federal statutory

authorization regarding letters rogatory, see 28 U.S.C. §§ 1781, 1782 (1982).

Rule 28(c), formerly Rule 28(b), closely follows Ky.R.C.P. 28.03, and is

substantially similar to Code of Ala., Tit. 7, § 464 (1958). It provides a procedure

for compelling residents of Alabama to attend deposition hearings here for use in

actions pending in other states and countries of the same sort as the similar

courtesy which many states extend where the testimony of their residents is

needed for use in Alabama actions. The September 1, 1987, amendment changed

the style of this provision from Rule 28(b) to Rule 28(c) and made nonsubstantive

grammatical changes.

Rule 28(d) is identical to Federal Rule 28(c). The September 1, 1987,

amendment changed the style of this provision from Rule 28(c) to Rule 28(d) and

made nonsubstantive grammatical changes.

Rule 28(dc) was changed by the amendment of September 1, 1987, so far

as was necessary in order to recognize the changes that had been made by that

amendment in the remainder of Rule 28.

Committee Comments to October 1, 1995,

Amendment to Rule 28

The amendment is technical. No substantive change is intended.