Subpart C
Yes — a witness's testimony may be taken by deposition when the witness is unavailable or for other good cause shown. The rule permits depositions to be taken orally or by written interrogatories before any person designated by the presiding hearing examiner who has authority to administer oaths, as explained in 1905.25(a)(1).
The application must state the reasons for taking the deposition, where and when it will be taken and the name and address of the person before whom it will be taken, the name and address of each witness, and the subject matter each witness is expected to testify about. These requirements are set out in 1905.25(a)(2) and the specific items are listed at 1905.25(a)(2)(i)–(iv).
You must identify the time and place of the deposition and give the name and post office address of the person before whom the deposition will be taken (the officer). This is required by 1905.25(a)(2)(ii), so the presiding hearing examiner can approve the designee who will administer oaths.
You must list the name and address of each witness whose deposition you want to take. This is explicitly required by 1905.25(a)(2)(iii) so all parties and the examiner know who will be deposed.
State the subject matter about which each witness is expected to testify. This helps show relevance and necessity and is required by 1905.25(a)(2)(iv).
The party taking the deposition must give such notice to every other party as the presiding hearing examiner orders. The examiner controls the form and timing of notice under 1905.25(a)(3).
The witness must be sworn, opposing parties must have the right to cross-examine, and the questions, answers, and objections must be reduced to writing, read to the witness, signed by the witness, certified by the officer, sealed in an envelope with two copies, and mailed by registered mail to the presiding hearing examiner. These procedures are specified in 1905.25(a)(4).
No — a deposition may be read and offered in evidence against a party only if that party was present at, represented at, or had due notice of the taking of the deposition. This limitation is in 1905.25(a)(4).
Only objections that were made and noted at the time of taking the deposition and that would be valid if the witness were personally present are preserved. Those objections are governed by 1905.25(a)(4).
No — no part of a deposition is admissible unless there is a showing at the hearing that the reasons for taking the deposition still exist. The rule requires this showing before admitting deposition testimony, as provided in 1905.25(a)(4).
The presiding hearing examiner designates the person who will administer oaths; that person must have the power to administer oaths. This is stated in 1905.25(a)(1).
Yes — depositions may be taken orally or upon written interrogatories before the designated officer, so written question-and-answer depositions are permitted under 1905.25(a)(1).
After certification by the officer, the deposition and two copies must be sealed in an envelope and mailed by registered mail to the presiding hearing examiner. This mailing and sealing requirement is set out in 1905.25(a)(4).
The presiding hearing examiner may allow other appropriate discovery procedures such as written interrogatories upon a party, production of documents by a party, or entry for inspection of the employment or place of employment involved when appropriate to a just disposition of any issue. This discretion is described in 1905.25(b).
The presiding hearing examiner decides whether such discovery is appropriate for a just disposition of the issues; the examiner has discretion to allow production of documents or entry for inspection under 1905.25(b).
Yes — the presiding hearing examiner determines the notice requirements and can order the form and scope of notice to other parties, as provided in 1905.25(a)(3).
Yes — parties not calling the witness have the right to cross-examine the witness during the deposition. This cross-examination right is guaranteed by 1905.25(a)(4).
You must show that the reasons for taking the deposition originally (for example, the witness's unavailability) still exist at the time of the hearing. No part of a deposition is admissible unless that showing is made under 1905.25(a)(4).
No — the standard does not set specific time limits; instead, a party must apply in writing and the presiding hearing examiner controls timing and may grant or limit depositions as appropriate under 1905.25(a)(1)–(4).
Yes — the presiding hearing examiner may allow entry for inspection of the employment or place of employment involved when that inspection is appropriate to a just disposition of the issue, as provided in 1905.25(b).
Discovery in variance hearings follows the presiding hearing examiner's orders under Part 1905, and applications for variances must still meet the procedural rules in Part 1905. For example, variance guidance and the Part 1905 process are discussed in OSHA's interpretation about requesting variances in the "Variance for crane load over people" LOI, which refers employers to 29 CFR Part 1905 for variance procedures.
The party seeking the deposition must show unavailability or other good cause in its written application to the presiding hearing examiner; this is required by 1905.25(a)(1)–(2).
No — only objections made and noted at the time of taking the deposition that would be valid if the witness were testifying in person are preserved; objections not made during the deposition generally cannot be raised later, per 1905.25(a)(4).
Yes — the examiner may order production of documents by a party if it is appropriate to a just disposition of any issue, as authorized by 1905.25(b).