Internal Revenue Code:Rule 81. Depositions in Pending Case
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Location in Internal Revenue Code
TITLE 26 - INTERNAL REVENUE CODE
TITLE 26 - APPENDIX
TITLE VIII. - DEPOSITIONS
Statute
Rule 81. Depositions in Pending Case
(a) Depositions to Perpetuate Testimony: A party to a case
pending in the Court, who desires to perpetuate testimony or to
preserve any document or thing, shall file an application pursuant
to these Rules for an order of the Court authorizing such party to
take a deposition for such purpose. Such depositions shall be
taken only where there is a substantial risk that the person or
document or thing involved will not be available at the trial of
the case, and shall relate only to testimony or document or thing
which is not privileged and is material to a matter in controversy.
(b) The Application: (1) Content of Application: The application
to take a deposition pursuant to paragraph (a) of this Rule shall
be signed by the party seeking the deposition or such party's
counsel, and shall show the following:
(A) the names and addresses of the persons to be examined;
(B) the reasons for deposing those persons rather than waiting
to call them as witnesses at the trial;
(C) the substance of the testimony which the party expects to
elicit from each of those persons;
(D) a statement showing how the proposed testimony or document
or thing is material to a matter in controversy;
(E) a statement describing any books, papers, documents, or
tangible things to be produced at the deposition by the persons
to be examined;
(F) the time and place proposed for the deposition;
(G) the officer before whom the deposition is to be taken;
(H) the date on which the petition was filed with the Court,
and whether the pleadings have been closed and the case placed on
a trial calendar;
(I) any provision desired with respect to payment of expenses,
fees, and charges relating to the deposition (see paragraph (g)
of this Rule, and Rule 103); and
(J) if the applicant proposes to videotape the deposition, then
the application shall so state, and shall show the name and
address of the videotape operator and of the operator's employer.
(The videotape operator and the officer before whom the
deposition is to be taken may be the same person. See
subparagraph (2) of paragraph (j) of this Rule.)
The application shall also have annexed to it a copy of the
questions to be propounded, if the deposition is to be taken on
written questions. For the form of application to take a
deposition, see Appendix I.
(2) Filing and Disposition of Application: The application may be
filed with the Court at any time after the case is docketed in the
Court, but must be filed at least 45 days prior to the date set for
the trial of the case. The application and a conformed copy
thereof, together with an additional conformed copy for each
additional docket number involved, shall be filed with the Clerk.
The applicant shall serve a copy of the application on each of the
other parties to the case, as well as on such other persons who are
to be examined pursuant to the application, and shall file with the
Clerk a certificate showing such service. Such other parties or
persons shall file their objections or other response, with the
same number of copies and with a certificate of service thereof on
the other parties and such other persons, within 15 days after such
service of the application. A hearing on the application will be
held only if directed by the Court. Unless the Court shall
determine otherwise for good cause shown, an application to take a
deposition will not be regarded as sufficient ground for granting a
continuance from a date or place of trial theretofore set. If the
Court approves the taking of a deposition, then it will issue an
order which will include in its terms the name of the person to be
examined, the time and place of the deposition, and the officer
before whom it is to be taken. If the deposition is to be
videotaped, then the Court's order will so state.
(c) Designation of Person to Testify: The party seeking to take a
deposition may name, as the deponent in the application, a public
or private corporation or a partnership or association or
governmental agency, and shall designate with reasonable
particularity the matters on which examination is requested. The
organization so named shall designate one or more officers,
directors, or managing agents, or other persons who consent to
testify on its behalf, and may set forth, for each person
designated, the matters on which such person will testify. The
persons so designated shall testify as to matters known or
reasonably available to the organization.
(d) Use of Stipulation: The parties or their counsel may execute
and file a stipulation to take a deposition by agreement instead of
filing an application as hereinabove provided. Such a stipulation
shall be filed with the Court in duplicate, and shall contain the
same information as is required in items (A), (F), (G), (I), and
(J) of Rule 81(b)(1), but shall not require the approval or an
order of the Court unless the effect is to delay the trial of the
case. A deposition taken pursuant to a stipulation shall in all
respects conform to the requirements of these Rules.
(e) Person Before Whom Deposition Taken: (1) Domestic
Depositions: Within the United States or a territory or insular
possession subject to the dominion of the United States,
depositions shall be taken before an officer authorized to
administer oaths by the laws of the United States (see Code Section
7622) or of the place where the examination is held, or before a
person appointed by the Court. A person so appointed has power to
administer oaths and to take such testimony.
(2) Foreign Depositions: In a foreign country, depositions may be
taken (A) before a person authorized to administer oaths or
affirmations in the place in which the examination is held, either
by the law thereof or by the law of the United States, or (B)
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 (C) pursuant
to a letter rogatory or a letter of request issued in accordance
with the provisions of the Hague Convention of 18 March 1970 on the
Taking of Evidence Abroad in Civil or Commercial Matters. A
commission, a letter rogatory, or a letter of request shall be
issued on application and notice and on terms that are just and
appropriate. The party seeking to take a foreign deposition shall
contact the United States Department of State to ascertain any
requirements imposed by it or by the foreign country in which the
deposition is to be taken, including any required foreign language
translations and any fees or costs, and shall submit to the Court,
along with the application, any such foreign language translations,
fees, costs, or other materials required. It is not requisite to
the issuance of a commission, a letter 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 a letter
rogatory, or both a commission and 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
descriptive title. A letter rogatory may be addressed ''To the
Appropriate Authority in (here name the country).'' A letter of
request is addressed to the central authority of the requested
State. The model recommended for letters of request is set forth in
the Hague Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters, 23 U.S.T. 2555, T.I.A.S. No.
7444. Evidence obtained by deposition or in response to a letter
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 within the United States under these
Rules.
(3) Disqualification for Interest: No deposition shall be taken
before a person who is a relative or employee or counsel of any
party, or is a relative or employee or associate of such counsel,
or is financially interested in the action. However, on consent of
all the parties or their counsel, a deposition may be taken before
such person, but only if the relationship of that person and the
waiver are set forth in the certificate of return to the Court.
(f) Taking of Deposition: (1) Arrangements: All arrangements
necessary for taking of the deposition shall be made by the party
filing the application or, in the case of a stipulation, by such
other persons as may be agreed upon by the parties.
(2) Procedure: Attendance by the persons to be examined may be
compelled by the issuance of a subpoena, and production likewise
may be compelled of exhibits required in connection with the
testimony being taken. The officer before whom the deposition is
taken shall first put the witness on oath (or affirmation) and
shall personally, or by someone acting under such officer's
direction and in such officer's presence, record accurately and
verbatim the questions asked, the answers given, the objections
made, and all matters transpiring at the taking of the deposition
which bear on the testimony involved. Examination and
cross-examination of witnesses, and the marking of exhibits, shall
proceed as permitted at trial. All objections made at the time of
examination shall be noted by the officer upon the deposition.
Evidence objected to, unless privileged, shall be taken subject to
the objections made. If an answer is improperly refused and as a
result a further deposition is taken by the interrogating party,
the objecting party or deponent may be required to pay all costs,
charges, and expenses of that deposition to the same extent as is
provided in paragraph (g) of this Rule where a party seeking to
take a deposition fails to appear at the taking of the deposition.
At the request of either party, a prospective witness at the
deposition, other than a person acting in an expert or advisory
capacity for a party, shall be excluded from the room in which, and
during the time that, the testimony of another witness is being
taken; and if such person remains in the room or within hearing of
the examination after such request has been made, such person shall
not thereafter be permitted to testify, except by the consent of
the party who requested such person's exclusion or by permission of
the Court.
(g) Expenses: (1) General: The party taking the deposition shall
pay all the expenses, fees, and charges of the witness whose
deposition is taken by such party, any charges of the officer
presiding at or recording the deposition other than for copies of
the deposition, and any expenses involved in providing a place for
the deposition. The party taking the deposition shall pay for the
original of the deposition; and, upon payment of reasonable charges
therefor, the officer shall also furnish a copy of the deposition
to any party or the deponent. By stipulation between the parties
or on order of the Court, provision may be made for any costs,
charges, or expenses relating to the deposition.
(2) Failure to Attend or to Serve Subpoena: If the party
authorized to take a deposition fails to attend and proceed
therewith and another party attends in person or by attorney
pursuant to the arrangements made, then the Court may order the
former party to pay to such other party the reasonable expenses
incurred by such other party and such other party's attorney in
attending, including reasonable attorney's fees. If the party
authorized to take a deposition of a witness fails to serve a
subpoena upon the witness and the witness because of such failure
does not attend, and if another party attends in person or by
attorney because such party expects the deposition of that witness
to be taken, then the Court may order the former party to pay to
such other party the reasonable expenses incurred by such other
party and such other party's attorney attending, including
reasonable attorney's fees.
(h) Execution and Return of Deposition: (1) Submission to
Witness; Changes; Signing: When the testimony is fully transcribed,
the deposition shall be submitted to the witness for examination
and shall be read to or by the witness, unless such examination and
reading are waived by the witness and by the parties. Any changes
in form or substance, which the witness desires to make, shall be
entered upon the deposition by the officer with a statement of the
reasons given by the witness for making them. The deposition shall
then be signed by the witness, unless the parties by stipulation
waive the signing or the witness is ill or cannot be found or
refuses to sign. If the deposition is not signed by the witness
within 30 days of its submission to the witness, then the officer
shall sign it and state on the record the fact of the waiver or of
the illness or absence of the witness or the fact of the refusal to
sign together with the reason, if any, given therefor; and the
deposition may then be used as fully as though signed unless the
Court determines that the reasons given for the refusal to sign
require rejection of the deposition in whole or in part. As to
correction of errors, see Rules 85 and 143(c).
(2) Form: The deposition shall show the docket number and caption
of the case as they appear in the Court's records, the place and
date of taking the deposition, the name of the witness, the party
by whom called, the names of counsel present and whom they
represent. The pages of the deposition shall be securely
fastened. Exhibits shall be carefully marked, and when practicable
annexed to, and in any event returned with, the deposition, unless,
upon motion to the Court, a copy shall be permitted as a substitute
after an opportunity is given to all interested parties to examine
and compare the original and the copy. The officer shall execute
and attach to the deposition a certificate in accordance with Form
8 shown in Appendix I.
(3) Return of Deposition: The deposition and exhibits shall not
be filed with the Court. Unless otherwise directed by the Court,
the officer shall deliver the original deposition and exhibits to
the party taking the deposition or such party's counsel, who shall
take custody of and be responsible for the safeguarding of the
original deposition and exhibits. Upon payment of reasonable
charges therefor, the officer also shall deliver a copy of the
deposition and exhibits to any party or the deponent, or to counsel
for any party or for the deponent. As to use of a deposition at
the trial or in any other proceeding in the case, see paragraph (i)
of this Rule. As to introduction of a deposition in evidence, see
Rule 143(c).
(i) Use of Deposition: At the trial or in any other proceeding in
the case, any part or all of a deposition, so far as admissible
under the rules of evidence applied as though the witness were then
present and testifying, may be used against any party who was
present or represented at the taking of the deposition or who had
reasonable notice thereof, in accordance with any of the following
provisions:
(1) The deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness.
(2) The deposition of a party may be used by an adverse party
for any purpose.
(3) The deposition may be used for any purpose if the Court
finds: (A) that the witness is dead; or (B) that the witness is
at such distance from the place of trial that it is not
practicable for the witness to attend, unless it appears that the
absence of the witness was procured by the party seeking to use
the deposition; or (C) that the witness is unable to attend or
testify because of age, illness, infirmity, or imprisonment; or
(D) that the party offering the deposition has been unable to
obtain attendance of the witness at the trial, as to make it
desirable in the interests of justice, to allow the deposition to
be used; or (E) that such exceptional circumstances exist, in
regard to the absence of the witness at the trial, as to make it
desirable in the interests of justice, to allow the deposition to
be used.
(4) If only part of a deposition is offered in evidence by a
party, then an adverse party may require the party offering the
deposition to introduce any other part which ought in fairness to
be considered with the part introduced, and any party may
introduce any other parts. As to introduction of a deposition in
evidence, see Rule 143(c).
(j) Videotape Depositions: (1) General: By stipulation of the
parties or upon order of the Court, a deposition to perpetuate
testimony to be taken upon oral examination may be recorded by
videotape. Except as otherwise provided by this paragraph, all
other provisions of these Rules governing the practice and
procedure in depositions shall apply.
(2) Procedure: The deposition shall begin by the operator stating
on camera (A) the operator's name and address, (B) the name and
address of the operator's employer, (C) the date, time, and place
of the deposition, (D) the caption and docket number of the case,
(E) the name of the witness, and (F) the party on whose behalf the
deposition is being taken. The officer before whom the deposition
is taken shall then identify himself or herself and swear the
witness on camera. At the conclusion of the deposition, the
operator shall state on camera that the deposition is concluded.
The officer before whom the deposition is taken and the operator
may be the same person. When the length of the deposition requires
the use of more than one tape, the end of each tape and the
beginning of each succeeding tape shall be announced on camera by
the operator. The deposition shall be timed by a digital clock on
camera which shall show continually each hour, minute, and second
of each tape of the deposition.
(3) Transcript: If requested by one of the parties, then the
testimony shall be transcribed at the cost of such party; but no
signature of the witness shall be required, and the transcript
shall not be filed with the Court.
(4) Custody: The party taking the deposition or such party's
counsel shall take custody of and be responsible for the
safeguarding of the videotape together with any exhibits, and such
party shall permit the viewing of or shall provide a copy of the
videotape and any exhibits upon the request and at the cost of any
other party.
(5) Use: A videotape deposition may be used at a trial or hearing
in the manner and to the extent provided in paragraph (i) of this
Rule. The party who offers the videotape in evidence shall provide
all necessary equipment for viewing the videotape and personnel to
operate such equipment. At a trial or hearing, that part of the
audio portion of a videotape deposition which is offered in
evidence and admitted, or which is excluded on objection, shall be
transcribed in the same manner as the testimony of other
witnesses. The videotape shall be marked as an exhibit and,
subject to the provisions of Rule 143(d)(2), shall remain in the
custody of the Court.
