[Code of Federal Regulations]
[Title 19, Volume 3]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 19CFR210.28]

[Page 147-148]
 
                        TITLE 19--CUSTOMS DUTIES
 
                 CHAPTER II--UNITED STATES INTERNATIONAL
                            TRADE COMMISSION
 
PART 210--ADJUDICATION AND ENFORCEMENT--Table of Contents
 
               Subpart E--Discovery and Compulsory Process
 
Sec. 210.28  Depositions.

    (a) When depositions may be taken. Following publication in the 
Federal Register of a Commission notice instituting the investigation, 
any party may take the testimony of any person, including a party, by 
deposition upon oral examination or written questions. The presiding 
administrative law judge will determine the permissible dates or 
deadlines for taking such depositions.
    (b) Persons before whom depositions may be taken. Depositions may be 
taken before a person having power to administer oaths by the laws of 
the United States or of the place where the examination is held.
    (c) Notice of examination. A party desiring to take the deposition 
of a person shall give notice in writing to every other party to the 
investigation. The administrative law judge shall determine the 
appropriate period for providing such notice. 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. A notice may provide for the taking of 
testimony by telephone, but the administrative law judge may, on motion 
of any party, require that the deposition be taken in the presence of 
the deponent. The parties may stipulate in writing, or the 
administrative law judge may upon motion order, that the testimony at a 
deposition be recorded by other than stenographic means. 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.
    (d) Taking of deposition. Each deponent shall be duly sworn, and any 
adverse party shall have the right to cross-examine. Objections to 
questions or documents shall be in short form, stating the grounds of 
objections relied upon. Evidence objected to shall be taken subject to 
the objections, except that privileged communications and subject matter 
need not be disclosed. The questions propounded and the answers thereto, 
together with all objections made, shall be reduced to writing, after 
which the deposition shall be subscribed by the deponent (unless the 
parties by stipulation waive signing or the deponent is ill or cannot be 
found or refuses to sign) and certified by the person before whom the 
deposition was taken. If the deposition is not subscribed by the 
deponent, the person administering the oath shall state on the record 
such fact and the reason therefor. When a deposition is recorded by 
stenographic means, the stenographer shall certify on the transcript 
that the witness was sworn in the stenographer's presence and that the 
transcript is a true record of the testimony of the witness. When a 
deposition is recorded by other than stenographic means and is 
thereafter transcribed, the person transcribing it shall certify that 
the person heard the witness sworn on the recording and that the 
transcript is a correct writing of the recording. Thereafter, that 
person shall forward one copy to each party who was present or 
represented at the taking of the deposition. See paragraph (i) of this 
section concerning the effect of errors and irregularities in 
depositions.
    (e) Depositions of nonparty officers or employees of the Commission 
or of other Government agencies. A party desiring to take the deposition 
of an officer or employee of the Commission other than the Commission 
investigative attorney, or of an officer or employee of another 
Government agency, or to obtain documents or other physical exhibits in 
the custody, control, and possession of such officer or employee, shall 
proceed by written motion to the administrative law judge for leave to 
apply for a subpoena under Sec. 210.32(c). Such a motion shall be 
granted only upon a showing that the information expected to be obtained 
thereby is within the scope of discovery permitted by Sec. 210.27(b) or 
Sec. 210.61 and cannot be obtained without undue hardship by alternative 
means.
    (f) Service of deposition transcripts on the Commission staff. The 
party taking the deposition shall promptly serve one copy of the 
deposition transcript on the Commission investigative attorney.

[[Page 148]]

    (g) Admissibility of depositions. The fact that a deposition is 
taken and filed with the Commission investigative attorney as provided 
in this section does not constitute a determination that it is 
admissible in evidence or that it may be used in the investigation. Only 
such part of a deposition as is received in evidence at a hearing shall 
constitute a part of the record in such investigation upon which a 
determination may be based. Objections may be made at the hearing to 
receiving in evidence any deposition or part thereof for any reason that 
would require exclusion of the evidence if the witness were then present 
and testifying.
    (h) Use of depositions. A deposition may be used as evidence against 
any party who was present or represented at the taking of the deposition 
or who had reasonable notice thereof, in accordance with any of the 
following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of a deponent as a witness;
    (2) The deposition of a party may be used by an adverse party for 
any purpose;
    (3) The deposition of a witness, whether or not a party, may be used 
by any party for any purposes if the administrative law judge finds--
    (i) That the witness is dead; or
    (ii) That the witness is out of the United States, unless it appears 
that the absence of the witness was procured by the party offering the 
deposition; or
    (iii) That the witness is unable to attend or testify because of 
age, illness, infirmity, or imprisonment; or
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional circumstances 
exist as to make it desirable in the interest of justice and with due 
regard to the importance of presenting the oral testimony of witnesses 
at a hearing, to allow the deposition to be used.
    (4) If only part of a deposition is offered in evidence by a party, 
an adverse party may require him to introduce any other part that ought 
in fairness to be considered with the part introduced, and any party may 
introduce any other parts.
    (i) Effect of errors and irregularities in depositions--(1) As to 
notice. All errors and irregularities in the notice for taking a 
deposition are waived unless written objection is promptly served upon 
the party giving notice.
    (2) As to disqualification of person before whom the deposition is 
to be taken. Objection to taking a deposition because of 
disqualification of the person before whom it is to be taken is waived 
unless made before the taking of the deposition begins or as soon 
thereafter as the disqualification becomes known or could be discovered 
with reasonable diligence.
    (3) As to taking of depositions. (i) Objections to the competency of 
a witness or the competency, relevancy, or materiality of testimony are 
not waived by failure to make them before or during the deposition, 
unless the ground of the objection is one which might have been obviated 
or removed if presented at that time.
    (ii) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties, and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless seasonable objection thereto is 
made at the taking of the deposition.
    (iii) Objections to the form of written questions submitted under 
this section are waived unless served in writing upon the party 
propounding them. The presiding administrative law judge shall set the 
deadline for service of such objections.
    (4) As to completion and return of deposition. Errors and 
irregularities in the manner in which the testimony is transcribed or 
the deposition is prepared, signed, certified, sealed, indorsed, 
transmitted, filed, or otherwise dealt with by the person before whom it 
is taken are waived unless a motion to suppress the deposition or some 
part thereof is made with reasonable promptness after such defect is, or 
with due diligence might have been, ascertained.

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