(a) When Taken.
(1) In General. A party may move that a prospective witness
be deposed in order to preserve testimony for trial. The court
may grant the motion because of exceptional circumstances
and in the interest of justice. If the court orders the deposi-
tion to be taken, it may also require the deponent to produce
at the deposition any designated material that is not privi-
leged, including any book, paper, document, record, recording,
or data.
(2) Detained Material Witness. A witness who is detained
under 18 U.S.C. §
3144 may request to be deposed by filing a
written motion and giving notice to the parties. The court
may then order that the deposition be taken and may dis-
charge the witness after the witness has signed under oath the
deposition transcript.
(b) Notice.
(1) In General. A party seeking to take a deposition must
give every other party reasonable written notice of the deposi-
tion’s date and location. The notice must state the name and
address of each deponent. If requested by a party receiving the
notice, the court may, for good cause, change the deposition’s
date or location.
(2) To the Custodial Officer. A party seeking to take the dep-
osition must also notify the officer who has custody of the de-
fendant of the scheduled date and location.
(c) Defendant’s Presence.
(1) Defendant in Custody. Except as authorized by Rule
15(c)(3), the officer who has custody of the defendant must
produce the defendant at the deposition and keep the defend-
ant in the witness’s presence during the examination, unless
the defendant:
(A) waives in writing the right to be present; or
(B) persists in disruptive conduct justifying exclusion
after being warned by the court that disruptive conduct
will result in the defendant’s exclusion.
(2) Defendant Not in Custody. Except as authorized by Rule
15(c)(3), a defendant who is not in custody has the right upon
request to be present at the deposition, subject to any condi-
tions imposed by the court. If the government tenders the de-
fendant’s expenses as provided in Rule 15(d) but the defendant
still fails to appear, the defendant—absent good cause—waives
both the right to appear and any objection to the taking and
use of the deposition based on that right.
(3) Taking Depositions Outside the United States Without the
Defendant’s Presence. The deposition of a witness who is out-
side the United States may be taken without the defendant’s
presence if the court makes case-specific findings of all the
following:
(A) the witness’s testimony could provide substantial
proof of a material fact in a felony prosecution;
(B) there is a substantial likelihood that the witness’s
attendance at trial cannot be obtained;
(C) the witness’s presence for a deposition in the United
States cannot be obtained;
(D) the defendant cannot be present because:
(i) the country where the witness is located will not
permit the defendant to attend the deposition;
(ii) for an in-custody defendant, secure transpor-
tation and continuing custody cannot be assured at the
witness’s location; or
(iii) for an out-of-custody defendant, no reasonable
conditions will assure an appearance at the deposition
or at trial or sentencing; and
(E) the defendant can meaningfully participate in the
deposition through reasonable means.
(d) Expenses. If the deposition was requested by the government,
the court may—or if the defendant is unable to bear the deposi-
tion expenses, the court must—order the government to pay:
(1) any reasonable travel and subsistence expenses of the de-
fendant and the defendant’s attorney to attend the deposition;
and
(2) the costs of the deposition transcript.
(e) Manner of Taking. Unless these rules or a court order pro-
vides otherwise, a deposition must be taken and filed in the same
manner as a deposition in a civil action, except that:
(1) A defendant may not be deposed without that defendant’s
consent.
(2) The scope and manner of the deposition examination and
cross-examination must be the same as would be allowed dur-
ing trial.
(3) The government must provide to the defendant or the de-
fendant’s attorney, for use at the deposition, any statement of
the deponent in the government’s possession to which the de-
fendant would be entitled at trial.
(f) Admissibility and Use as Evidence. An order authorizing a
deposition to be taken under this rule does not determine its ad-
missibility. A party may use all or part of a deposition as provided
by the
Federal Rules of Evidence.
(g) Objections. A party objecting to deposition testimony or evi-
dence must state the grounds for the objection during the deposi-
tion.
(h) Depositions by Agreement Permitted. The parties may by
agreement take and use a deposition with the court’s consent.