(a) Depositions; notice of examination. After commencement of the
action, any party may take the testimony of any person, including a
party, having personal or expert knowledge of the matters in issue, by
deposition upon oral examination. A party desiring to take a deposition
shall give reasonable notice in writing to every other party to the
proceeding, and may use an administrative subpoena. The notice shall
state the time and place for taking the deposition and the name and
address of each person to be examined, if known, and, if the name is not
known, a general description sufficient to identify him or the
particular class or group to which he belongs. The notice shall also set
forth the categories of documents the witness is to bring with him to
the deposition, if any. A copy of the notice shall be furnished to the
person to be examined unless his name is unknown.
(b) Production of witnesses; obligation of parties; objections. It
shall be the obligation of each party to produce for examination any
person, along with such documents as may be requested, at the time and
place, and on the date, set forth in the notice, if that party has
control over such person. Each party shall be deemed to have control
over its officers, agents, employees, and members. Unless the parties
agree otherwise, depositions shall be held within the county in which
the witness resides or works. The party or prospective witness may file
with the Administrative Law Judge an objection within 5 days after
notice of production of such witness is served, stating with
particularity the reasons why the party cannot or ought not to produce a
requested witness. The party serving the notice may move for an order
with respect to such objection or failure to produce a witness. All
errors or irregularities in compliance with the provisions of this
section shall be deemed waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after
such defect is or, with due diligence, might have been ascertained.
(c) Before whom taken; scope of examination; failure to answer.
Depositions may be taken before any officer authorized to administer
oaths by the laws of the United States or of the place where the
deposition is held. At the time and place specified in the notice, each
party shall be permitted to examine and cross-examine the witness under
oath upon any matter which is relevant to the subject matter of the
proceeding, or which is reasonably calculated to lead to the production
of relevant and otherwise admissible evidence. All objections to
questions, except as to the form thereof, and all objections to evidence
are reserved until the hearing. A refusal or failure on the part of any
person under the control of a party to answer a question shall operate
to create a presumption that the answer, if given, would be unfavorable
to the controlling party, unless the question is subsequently ruled
improper by the Administrative Law Judge or the Administrative Law Judge
rules that there was valid justification for the witness' failure or
refusal to answer the question: Provided, That the examining party shall
note on the record during the deposition the question which the deponent
has failed, or refused to answer, and state his intention to invoke the
presumption if no answer is forthcoming.
(d) Subscription; certification; filing. The testimony shall be
reduced to typewriting, either by the officer taking the deposition or
under his direction, and shall be submitted to the witness for
examination and signing. If the deposition is not signed by the witness
because he is ill, dead, cannot be found, or refuses to sign it, such
fact shall be noted in the certificate of the officer and the deposition
may then be used as fully as though signed. The officer shall
immediately deliver the original copy of the transcript, together with
his certificate, in person or by mail to the Administrative Law Judge.
Copies of the transcript and certificate shall be furnished to all
persons desiring them, upon payment of reasonable charges, unless
distribution is restricted by order of the Administrative Law Judge for
good cause shown.
(e) Rulings on admissibility; use of deposition. Subject to the
provisions of this section, objection may be made at the hearing to
receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were
then present and testifying. Any part or all of a deposition, so far as
admissible in the discretion of the Administrative Law Judge, may be
used against any party who was present or represented at the taking of
the deposition or who had reasonable notice, in accordance with the
following provisions:
(1) Any 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 or of any one who at the time of
taking the deposition was an officer, director, or managing agent, or
was designated to testify on behalf of a public or private corporation,
partnership, association, or governmental agency which is a party may be
used by the adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the administrative law judge finds: (i)
That the witness is dead; or (ii) that the witness is unable to attend
or testify because of age, illness, infirmity, or imprisonment; or (iii)
that the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or (iv) upon application and
notice, that such exceptional circumstances exist as to make it
desirable to allow the deposition to be used.
(4) If only part of a deposition is introduced in evidence by a
party, any party may introduce any other parts by way of rebuttal and
otherwise.
(f) Stipulations. If the parties so stipulate in writing,
depositions may be taken before any person at any time or place, upon
any notice and in any manner, and when so taken may be used like other
depositions.
[43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978]
