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This entry was published on 2014-09-26
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SECTION 3113
Conduct of the examination
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 31
Rule 3113. Conduct of the examination. (a) Persons before whom
depositions may be taken. Depositions may be taken before any of the
following persons except an attorney, or employee of an attorney, for a
party or prospective party and except a person who would be disqualified
to act as a juror because of interest in the event or consanguinity or
affinity to a party:

1. within the state, a person authorized by the laws of the state to
administer oaths;

2. without the state but within the United States or within a
territory or possession subject to the jurisdiction of the United
States, a person authorized to take acknowledgments of deeds outside of
the state by the real property law of the state or to administer oaths
by the laws of the United States or of the place where the deposition is
taken; and

3. in a foreign country, any diplomatic or consular agent or
representative of the United States, appointed or accredited to, and
residing within, the country, or a person appointed by commission or
under letters rogatory, or an officer of the armed forces authorized to
take the acknowledgment of deeds.

Officers may be designated in notices or commissions either by name or
descriptive title and letters rogatory may be addressed "To the
Appropriate Authority in (here name the state or country)."

(b) Oath of witness; recording of testimony; objections; continuous
examination; written questions read by examining officer. 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, record
the testimony. The testimony shall be recorded by stenographic or other
means, subject to such rules as may be adopted by the appellate division
in the department where the action is pending. All objections made at
the time of the examination to the qualifications of the officer taking
the deposition or the person recording it, or to the manner of taking
it, or to the testimony presented, or to the conduct of any person, and
any other objection to the proceedings, shall be noted by the officer
upon the deposition and the deposition shall proceed subject to the
right of a person to apply for a protective order. The deposition shall
be taken continuously and without unreasonable adjournment, unless the
court otherwise orders or the witness and parties present otherwise
agree. In lieu of participating in an oral examination, any party served
with notice of taking a deposition may transmit written questions to the
officer, who shall propound them to the witness and record the answers.

(c) Examination and cross-examination. Examination and
cross-examination of deponents shall proceed as permitted in the trial
of actions in open court, except that a non-party deponent's counsel may
participate in the deposition and make objections on behalf of his or
her client in the same manner as counsel for a party. When the
deposition of a party is taken at the instance of an adverse party, the
deponent may be cross-examined by his or her own attorney.
Cross-examination need not be limited to the subject matter of the
examination in chief.

(d) The parties may stipulate that a deposition be taken by telephone
or other remote electronic means and that a party may participate
electronically. The stipulation shall designate reasonable provisions to
ensure that an accurate record of the deposition is generated, shall
specify, if appropriate, reasonable provisions for the use of exhibits
at the deposition; shall specify who must and who may physically be
present at the deposition; and shall provide for any other provisions
appropriate under the circumstances. Unless otherwise stipulated to by
the parties, the officer administering the oath shall be physically
present at the place of the deposition and the additional costs of
conducting the deposition by telephonic or other remote electronic
means, such as telephone charges, shall be borne by the party requesting
that the deposition be conducted by such means.