§ 3113 — Conduct of the examination

New York § 3113

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 31: Disclosure

Text

Rule 3113. Conduct of the examination. (a) Persons before whom\ndepositions may be taken. Depositions may be taken before any of the\nfollowing persons except an attorney, or employee of an attorney, for a\nparty or prospective party and except a person who would be disqualified\nto act as a juror because of interest in the event or consanguinity or\naffinity to a party:\n 1. within the state, a person authorized by the laws of the state to\nadminister oaths;\n 2. without the state but within the United States or within a\nterritory or possession subject to the jurisdiction of the United\nStates, a person authorized to take acknowledgments of deeds outside of\nthe state by the real property law of the state or to administer oaths\nby the laws of the United States or of the place where the deposition is\ntaken; and\n 3. in a foreign country, any diplomatic or consular agent or\nrepresentative of the United States, appointed or accredited to, and\nresiding within, the country, or a person appointed by commission or\nunder letters rogatory, or an officer of the armed forces authorized to\ntake the acknowledgment of deeds.\n Officers may be designated in notices or commissions either by name or\ndescriptive title and letters rogatory may be addressed "To the\nAppropriate Authority in (here name the state or country)."\n (b) Oath of witness; recording of testimony; objections; continuous\nexamination; written questions read by examining officer. The officer\nbefore whom the deposition is to be taken shall put the witness on oath\nand shall personally, or by someone acting under his direction, record\nthe testimony. The testimony shall be recorded by stenographic or other\nmeans, subject to such rules as may be adopted by the appellate division\nin the department where the action is pending. All objections made at\nthe time of the examination to the qualifications of the officer taking\nthe deposition or the person recording it, or to the manner of taking\nit, or to the testimony presented, or to the conduct of any person, and\nany other objection to the proceedings, shall be noted by the officer\nupon the deposition and the deposition shall proceed subject to the\nright of a person to apply for a protective order. The deposition shall\nbe taken continuously and without unreasonable adjournment, unless the\ncourt otherwise orders or the witness and parties present otherwise\nagree. In lieu of participating in an oral examination, any party served\nwith notice of taking a deposition may transmit written questions to the\nofficer, who shall propound them to the witness and record the answers.\n (c) Examination and cross-examination. Examination and\ncross-examination of deponents shall proceed as permitted in the trial\nof actions in open court, except that a non-party deponent's counsel may\nparticipate in the deposition and make objections on behalf of his or\nher client in the same manner as counsel for a party. When the\ndeposition of a party is taken at the instance of an adverse party, the\ndeponent may be cross-examined by his or her own attorney.\nCross-examination need not be limited to the subject matter of the\nexamination in chief.\n (d) The parties may stipulate that a deposition be taken by telephone\nor other remote electronic means and that a party may participate\nelectronically. The stipulation shall designate reasonable provisions to\nensure that an accurate record of the deposition is generated, shall\nspecify, if appropriate, reasonable provisions for the use of exhibits\nat the deposition; shall specify who must and who may physically be\npresent at the deposition; and shall provide for any other provisions\nappropriate under the circumstances. Unless otherwise stipulated to by\nthe parties, the officer administering the oath shall be physically\npresent at the place of the deposition and the additional costs of\nconducting the deposition by telephonic or other remote electronic\nmeans, such as telephone charges, shall be borne by the party requesting\nthat the deposition be conducted by such means.\n