[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR385.404]

[Page 897-898]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 385--RULES OF PRACTICE AND PROCEDURE--Table of Contents
 
   Subpart D--Discovery Procedures for Matters Set for Hearing Under 
                                Subpart E
 
Sec. 385.404  Depositions during proceedings (Rule 404).

    (a) In general. (1) A participant may obtain the attendance for a 
deposition by oral examination of any other participant, an employee or 
agent of that participant, or a person retained by that participant as a 
potential witness, by providing a notice of intent to depose.
    (2) Any participant may obtain the attendance of a nonparticipant 
for a deposition by oral examination by obtaining a subpoena, in 
accordance with Rule 409. For purposes of this rule, a Commission 
decisional employee, as defined in Rule 2201(a), is a nonparticipant.
    (b) Notice. (1) A participant seeking to take a deposition under 
this section must provide to all other participants written notice 
reasonably in advance of the deposition. The notice must be filed with 
the Commission and served on all participants. An original must be 
served on each person whose deposition is sought.
    (2) A notice of intent under this section must:
    (i) State the time and place at which the deposition will be taken, 
the name and address of each person to be examined, and the subject 
matter of the deposition; and
    (ii) If known at the time that the deposition is noticed that its 
purpose is to preserve testimony, state that the deponent will be unable 
to testify at the hearing.
    (3)(i) A notice of intent under this section or a subpoena under 
Rule 409 may name as the deponent a public or private corporation or a 
partnership or association or a governmental agency, and describe with 
reasonable particularity the matters on which examination is requested. 
Such organization must, in response, designate one or more officers, 
directors, or managing agents, or other persons to testify on its 
behalf, and set forth, for each person designated, the matters on which 
that person will testify.
    (ii) A subpoena must advise any organization that is named as a 
deponent but is not a participant that it has a duty to designate a 
person to testify. Any person designated under this section must testify 
on matters known by, or reasonably available to, the organization.
    (c) Taking of deposition. (1) Each deponent must swear to or affirm 
the truth of the testimony given before any testimony is taken.
    (2) Any participant may examine and cross-examine a deponent.

[[Page 898]]

    (3) Any objection made during the examination must be noted by the 
officer taking the deposition. After the objection is noted, the 
deponent must answer the question, unless a claim of privilege is 
asserted or the presiding officer rules otherwise.
    (4) The deposition must be transcribed verbatim.
    (d) Nonstenographic means of recording; telephonic depositions. 
Testimony at a deposition may be recorded by means other than 
stenography if all participants so stipulate or if the presiding 
officer, upon motion, so orders. Such stipulation or order shall 
designate the person before whom the deposition. will be taken, and the 
manner in which the deposition will be preserved, filed, and certified. 
Depositions may also be taken by telephone, if all participants so 
stipulate or the presiding officer, upon motion, orders.
    (e) Officer taking deposition. Depositions must be taken before an 
officer authorized to administer oaths or affirmations by the laws of 
the United States or of the place where the deposition is held. A 
deposition may not be taken before an officer who is a relative or 
employee or attorney of any of the participants, or is financially or in 
any other way interested in the action.
    (f) Submission to deponent. (1) Unless examination is waived by the 
deponent, the transcription of the deposition must be submitted to the 
deponent for examination.
    (2) If the deponent requests any changes in form or substance, the 
officer must enter the changes on the deposition transcript with a 
statement of the witness' reasons for the changes. The deponent must 
sign the deposition within 30 days after submittal to the deponent, 
unless the participants by stipulation waive the signing or the deponent 
cannot or will not sign. By signing the deposition the deponent 
certifies that the transcript is a true record of the testimony given.
    (3) The officer who took the deposition must sign any deposition not 
signed by the deponent in accordance with this section and must state on 
the record that the signature is waived or that the deponent cannot or 
will not sign, accompanied by any reason given for a deponent's refusal 
to sign. If the officer complies with this paragraph, a deposition that 
is unsigned by the deponent may be used as though signed, unless the 
presiding officer rules otherwise.
    (g) Certification and copies. (1) The officer must certify on the 
transcript of the deposition that the deponent swore to or affirmed the 
truth of the testimony given and the deposition transcript is a true 
record of the testimony given by the deponent. The officer must provide 
the participant conducting the deposition with a copy of the 
transcription.
    (2) Documents and things produced for inspection during the 
examination of the witness will, upon the request of a participant, be 
marked for identification and annexed to the deposition and the officer 
will certify the document or thing as the original offered during the 
deposition, or as a true and correct copy of the original offered.
    (3) Copies of the transcript of a deposition may be purchased from 
the reporting service that made the transcription, subject to 
protections established by the presiding officer.