(a) (1) When Depositions May Be Taken. After commencement of an action any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of summons and complaint upon any defendant, except that leave is not required if a defendant has served a notice of taking depositions or otherwise sought discovery as provided in these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
This language is similar to that currently found in Circuit Court Rule 87A. It is drawn from the current Rule 30(a) of the Federal Rules.
(2) Limitations. A witness may be compelled to attend in the county in which he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court. A party may be compelled to attend in the county in which the subject civil action is pending, or in the county in which he resides or is employed or transacts business, or at such other convenient place as is fixed by an order of the court.
The deposition of any party or witness may only be taken one time in any case except by agreement of the parties through their counsel or by order of the court for good cause shown.
A witness attending any deposition held pursuant to these rules shall receive for each day's attendance and for the time necessarily occupied in going to and returning from the same, $25.00 per day, and mileage for going from and returning to his place of residence, in the same amounts as provided by law for official travel of state officers and employees.
This rule shall not apply to those cases where the amount in controversy is less than the sum of $10,000.00, unless the parties or their counsel agree otherwise, or unless the court should so order upon good cause shown.
The above language is not contained in the current Federal Rule. However, the first two paragraphs are contained in Circuit Court Rule 87A and reflect limitations on the use of discovery in present State practice. The third paragraph is the language of Circuit Court Rule 87I and provides for statutory fees. The fourth paragraph is the language of Circuit Court Rule 87J and states that depositions should not be routinely available in cases involving less than $10,000 in controversy.
Rule 30(a)(2) previously established the counties in which a witness, but not a party, could be deposed. The rule is amended to add that a party may be deposed in the county where the action is pending, as well as where the deponent resides, or is employed or transacts business in person, or where set by order of the court.
(b) Notice of Examination: General Requirements; Special Notice; Non-stenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone.
(1) A party desiring to take the deposition of any person upon oral examination shall give ten (10) days['] notice in writing to every other party to the action. 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. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
The change alters the Federal Rule which requires reasonable notice of deposition to conform to present State practice requiring ten days notice of deposition. Rule 30(b)(3) permits the court to shorten or lengthen this period.
(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go more than 100 miles from the place of trial, or is about to go out of the State, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the 30-day period provided in Rule 30(a)(1), and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification. If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.
This is the language of the Federal Rule, slightly modified to delete a reference to the deponents departing from the county where the trial will be held. Sufficient protection is provided by the remaining factors including travel more than 100 miles from the place where the action is pending.
(3) The court may for cause shown enlarge or shorten the time for taking the deposition.
This is the language of Federal Rule 30, and makes no change in existing State practice.
(4) The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at his own expense. Any objection under Rule 30(c), any changes made by the witness, his signature identifying the deposition as his own or the statement of the officer that is required if the witness does not sign, as provided in Rule 30(e), and the certification of the officer required by Rule 30(f) shall be set forth in writing to accompany a deposition recorded by non-stenographic means.
This permits stipulation of the parties or the court to order the recording of a deposition by other than stenographic means. It is meant to encourage the use of other mechanisms including videotape. The rule requires a fairly extensive order or stipulation. Videotape depositions are presently authorized by Circuit Rule 99 which is reproduced in paragraph (h) of this rule.
(5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request.
This is the existing Federal Rule and makes clear what often occurs in practice, that a deposition and document request may be made returnable at the same time.
(6) A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, 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 he will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
This permits a party seeking discovery to require of the other party that it designate the appropriate individual or individuals to respond to the deposition and thereby provides flexibility for a knowledgeable individual to be presented for a deposition. It is an expansion of language which now is in Circuit Court Rule 87C.
(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken by telephone is taken at the same place where the deponent is to answer questions propounded to him. The notary before whom the deposition is taken shall be at the same place as the deponent during the taking of the deposition.
This section permits a deposition by telephone. Although such a deposition is permissible under present rules, this section makes the procedure explicit.
(c) Examination and Cross-Examinations; Record of Examination; Oath;
Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the South Carolina Rules of Evidence except Rules 103 and 615. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he shall transmit them to...
