A. When Depositions May Be Taken. After commencement of the action, the testimony of parties or their current spouses, or any expert witnesses expected to be called, may be taken by deposition upon oral examination. Depositions of document custodians may be taken to secure production of documents and to establish evidentiary foundation. No other depositions shall be taken except upon: (1) agreement of all parties; (2) an order of the court following a motion demonstrating good cause; or (3) an order of the court following a Resolution Management Conference pursuant to Rule 76(A).
If the petitioner or other party seeks to take a deposition prior to the expiration of thirty (30) days after personal service or completion of service under Rule 42 of the summons and petition upon any respondent or other party, leave of court, granted with or without notice, is required, except that leave is not required: (1) if a respondent or other party has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision B(2). The attendance of witnesses may be compelled by subpoena as provided in Rule 52. The deposition of a person in confinement may be taken only by leave of court on such terms as the court prescribes.
B. Notice of Examination; General Requirements; Special Notice; Non-Stenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone.
1. Absent a stipulation of all parties to the action or an order of the court authorizing a briefer notice, a party desiring to take the deposition of any person upon oral examination shall give notice in writing to every other party to the action at least ten (10) days prior to the date of the deposition. 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 the person or the particular class or group to which the person 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.
2. Leave of court is not required for the taking of a deposition by petitioner or other party initiating an action if the notice (a) states that the person to be examined is about to go out of the State of Arizona and will be unavailable for examination unless the person’s deposition is taken before expiration of the 30-day period, and (b) sets forth facts to support the statement. The petitioner’s or other initiating party’s attorney shall sign the notice, and the attorney’s signature constitutes a certification by the attorney that to the best of the attorney’s knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 31(A) are applicable to the certification. If a party served with notice under this subdivision shows that said party was unable, through the exercise of reasonable diligence, to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party.
3. The court may for cause shown enlarge or shorten the time for taking the deposition.
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 the party’s own expense. Any changes made by the witness, the witness’ signature identifying the deposition as the witness’ own, or the statement of the officer that is required if the witness does not sign as provided in paragraph E, and the certification of the officer required by paragraph F shall be set forth in a writing to accompany a deposition recorded by nonstenographic means.
5. The notice to a party deponent may be accompanied by a request made in compliance with Rule 62 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 62 shall apply to the request.
6. A party may, in the party’s notice, name as the deponent a public or private corporation, a partnership, an association, or a governmental agency and designate with reasonable particularity the matters on which examination is requested. 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 that person will testify. 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.
7. The parties may stipulate or the court may order that a deposition be taken by telephone. For the purpose of this rule and Rules 52(C)(3), 52(E), 55(A), and 65(A)(1) a deposition is taken in the county where the deponent is to answer questions propounded to the deponent.
C. Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 2(B). The examination shall commence at the time and place specified in the notice or within thirty (30) minutes thereafter and, unless otherwise stipulated or ordered, will be continued on successive days, except Saturdays, Sundays and legal holidays, until completed. Any party not present within thirty (30) minutes following the time specified in the notice of taking deposition waives any objection that the deposition was taken without that party’s presence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer’s direction and in the officer’s presence, record the testimony of the witness. If the deposition is taken telephonically and the witness is not physically in the presence of the officer before whom the deposition is to be taken, the officer may nonetheless place the witness under oath with the same force and effect as if the witness were physically present before the officer. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision B(4). If requested by one of the parties, the testimony shall be transcribed. If the testimony is transcribed, the party noticing the deposition or the party causing the deposition to be taken shall be responsible for the cost of the original transcript.
All objections made at the 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. The court shall impose sanctions pursuant to Rule 76(D) for unreasonable, groundless, abusive or obstructionist conduct. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
D. Length of Deposition; Motion to Terminate or Limit Examination. Depositions shall be of reasonable length. The oral deposition of any party or witness, including expert witnesses, whenever taken, shall not exceed four (4) hours in length, except pursuant to stipulation of the parties or upon motion and a showing of good cause. The court shall impose sanctions pursuant to Rule 76(D) for unreasonable, groundless, abusive or obstructionist conduct.
At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the county where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 53. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon request of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion and for issuance of an order. The provisions of Rule 65(A)(4) apply to the award of expenses incurred in relation to the motion.
E. Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within thirty (30) days of its submission to the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 59(D)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
F. Certification and Filing by Officer; Exhibits; Copies; Notice of Filing; Preservation of Verbatim Recording of Depositions.
1. The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition, and may be inspected and copied by any party, except that if the person producing the materials desires to retain them the person may (1) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or (2) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.
2. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.
3. The officer shall retain all original stenographic notes and tapes of any deposition and a copy of the recording of any deposition taken by another method in such place and manner as to ensure their availability to the court or any party upon request. In no event, however, shall such original notes or stenographic tapes be retained in any location outside the State of Arizona. The officer shall retain stenographic notes, tapes, and copies of recordings taken by another method according to records retention and disposition schedules and purge lists adopted by the Supreme Court.
G. Failure to Attend or to Serve Subpoena; Expenses.
1. If the party giving the notice of the taking of a deposition fails to attend and proceed therewith, and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party’s attorney in attending, including reasonable attorney’s fees.
2. If the party giving the notice of the taking of a deposition of a non-party witness fails to serve a subpoena upon the witness, and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party’s attorney in attending, including reasonable attorneys’ fees.