Last Update: 9/2/05 (Transmittal I-2-64)
A. Scheduling a Deposition
To facilitate obtaining a deposition, the hearing office (HO) staff should contact the deponent by telephone, if possible, to determine the most desirable time and place for the deposition proceedings. HO staff should document any contact by placing a Report of Contact in the administrative record and HO file.
B. Notice of the Deposition
The ALJ must send the deponent written notice of the time and place of the deposition proceedings at least 20 days in advance, with copies to the claimant and the representative. Included, or attached to the notice, should be the following:
a statement of purpose of the deposition;
any additional information the ALJ deems necessary for the deponent to prepare for the proceedings;
a statement about the method that will be used to record the testimony will be recorded, which may be sound/audio, video teleconference, or stenographic methods. The party taking the deposition shall bear the cost of the recording.
If a subpoena is 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. See I-2-5-80, Sample – Preparation and Service of a Subpoena.
Also, the HO staff shall place copies of the notice in the claim file and HO file. (See I-2-6-90 Sample - Notice to Deponent.)
C. Claimant Objects to the Taking of the Deposition
If the claimant or representative objects to the taking of the deposition, or to the proposed method for recording the deposition, the ALJ must rule on the objection in writing. The ALJ's ruling should be mailed to the claimant or representative and made an exhibit in the administrative record.
D. Deponent Does Not Appear for Deposition
If a deponent fails to appear for a deposition, the HO staff will telephone the deponent for an explanation. If another date can be agreed to, and the ALJ is reasonably certain that the deponent will appear, the HO staff will send a second notice following the procedures in A. and B., above. HO staff should document any contact by placing a Report of Contact in the administrative record and HO file.
If the ALJ determines that the deposition is material to the issues to be decided, the ALJ may issue a subpoena to compel the deponent to appear. (See I-2-5-78, Use of Subpoenas — General.)
E. Conducting the Deposition
The ALJ will take all testimony under oath or affirmation, and record the deposition proceedings in the same manner as hearing proceedings. The ALJ must, on the record, identify the case and all persons present, and state the purpose of the deposition. (See I-2-6-54, Oaths and Affirmations.) The ALJ may take deposition testimony in person, via video conference, teleconference, or by stenographic means. The ALJ must, on the record:
identify the case and all persons present;
state the purpose of the deposition;
identify the date, time, and place of the deposition; and
identify the name of the deponent.
The above items should be repeated at the beginning of each tape, CD, or other recording medium. The appearance or demeanor of deponents or other persons present at the deposition shall not be distorted by manipulation of the camera or sound recording medium. At the conclusion of the deposition, the ALJ shall state on the record that the deposition is complete.
F. Objections and Examinations
Examination of the deponent may proceed as would be permitted at a hearing. All objections made at the time of deposition shall be noted by the ALJ on the record. The ALJ shall rule on the objections at the hearing on the record or may rule on the objections after the deposition in a separate order. Objections shall not prevent the taking of evidence. Rather, evidence shall be taken subject to objections, which will be noted in the record.
G. Preparing the Deposition Transcript
The HO staff will prepare a verbatim transcript of the deposition proceedings in duplicate, numbering all pages, except the first, in the center at the top. Include in the transcript:
an identifying face sheet (See I-2-6-93 Sample - Transcript.);
the text of the deposition; and
the transcriber's certification.
H. Proffering the Deposition Transcript
The ALJ will mark the deposition transcript and any associated documents as exhibits, and will proffer the deposition transcript and any associated documents to the claimant or representative consistent with proffer procedures. (See I-2-6-91 Sample - Exhibit List Including Posthearing Deposition, and I-2-7-30, Proffer Procedures.) HO staff should mark a copy of the proffer letter as an exhibit in the administrative record.
I. Claimant Objects to Admitting the Deposition into Evidence
If the claimant or the representative objects to admitting into evidence the deposition transcript and associated documents, the ALJ must rule on the objections in writing or on the record at the hearing. If the ALJ issues a written ruling, a copy of the ruling will be made an exhibit to the administrative record and a copy of the ruling will be sent to the claimant or representative.