1921 Subpart E
Yes — testimony of any witness may be taken by deposition for good cause once a complaint has been filed, whether the complaint is at issue or not.
Depositions may be taken orally or by written interrogatories before a person designated by the hearing examiner who has authority to administer oaths. See 1921.19(a) and the general 1921 overview.
The application must be in writing and state why the deposition should be taken, when and where it will be taken, 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 will address.
Lay out these items clearly in your written request so the hearing examiner can decide. See 1921.19(b).
You must give at least 5 days' written notice before taking a deposition within the United States.
The hearing examiner may order different notice, but it cannot be less than 5 days for depositions inside the United States. See 1921.19(c).
You must give at least 15 days' written notice before taking a deposition outside the United States.
The hearing examiner can order a different notice period, but it cannot be less than 15 days for a deposition taken elsewhere. See 1921.19(c).
A person designated by the hearing examiner who has power to administer oaths may administer oaths for depositions.
That designee can be any qualified official the hearing examiner appoints; confirm the identity and authority of the officer before the deposition. See 1921.19(a).
Yes — every witness testifying by deposition must be sworn.
The rule requires the oath, and the deposition questions, answers, and objections must be reduced to writing and certified by the officer taking the deposition. See 1921.19(d).
Yes — the adverse party has the right to cross-examine a witness who testifies by deposition.
Cross-examination rights must be preserved at the time the deposition is taken; objections and cross-examination must be recorded as required. See 1921.19(d).
All questions, answers, and objections must be put in writing, read to the witness, subscribed by the witness, and certified by the officer taking the deposition.
After certification, the officer seals the deposition with two copies in an envelope and mails it by registered mail to the hearing examiner. See 1921.19(d).
The officer must seal the deposition, with two copies, in an envelope and mail it by registered mail to the hearing examiner.
This ensures chain of custody and formal delivery to the hearing record. See 1921.19(d).
A deposition may be read and offered in evidence if the party against whom it is offered was present or represented at the taking of the deposition or had due notice of it.
Admission is subject to the same objections that would have applied if the witness had testified in person, and no part of a deposition is admissible unless the reasons for taking it in the first place still exist at the time of the hearing. See 1921.19(d).
A written application is required; you cannot rely on an informal request alone to take a deposition.
The party seeking the deposition must file a written application with the hearing examiner that sets out the reasons, timing, place, officer before whom it will be taken, witnesses' names and addresses, and the subject matter, per 1921.19(b). See also 1921.19(a) regarding need for good cause.
Only objections that were made and noted at the time of taking the deposition are preserved and can be relied upon when the deposition is offered in evidence.
Those objections must be the same ones that would be valid had the witness been present and testifying, so clearly state and record any objections during the deposition. See 1921.19(d).
No part of a deposition can be admitted unless it is shown that the reasons for taking the deposition originally still exist at the time of the hearing.
So if the original justification (for example, witness unavailability) no longer applies at hearing, the deposition or parts of it may be excluded. See 1921.19(d).
Yes — depositions may be taken either orally or upon written interrogatories as allowed by the rule.
When using written interrogatories, follow the same application and notice requirements and ensure the person taking the deposition can administer oaths, per 1921.19(a).
No — the hearing examiner cannot set notice shorter than the statutory minimum of 5 days for depositions taken within the United States.
While the hearing examiner controls notice details, the rule establishes that notice must be at least 5 days for domestic depositions and at least 15 days for depositions taken elsewhere. See 1921.19(c) and 1921.19(b).