[Code of Federal Regulations]
[Title 9, Volume 2]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 9CFR202.109]

[Page 36-39]
 
                  TITLE 9--ANIMALS AND ANIMAL PRODUCTS
 
  CHAPTER II--GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION 
       (PACKERS AND STOCKYARDS PROGRAMS),DEPARTMENT OF AGRICULTURE
 
PART 202--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE PACKERS AND STOCKYARDS ACT--Table of Contents
 
Sec. 202.109  Rule 9: Depositions.

    (a) Application. Any party may file an application for an order for 
the taking of testimony by deposition, at any time after docketing of a 
proceeding and before the close of an oral hearing or the filing of such 
party's evidence in a written hearing therein. The application shall set 
forth: (1) The name and address of the proposed deponent; (2) the name 
and address of the person (referred to in this section as the 
``officer'') before whom the proposed examination is to be made; (3) the 
reasons why such deposition should be taken, which must show that it may 
be able to be used as set forth in paragraph (i) of this section; (4) 
whether the proposed examination is to be on interrogatories or oral; 
and (5) if oral, a suggested time and place where the proposed 
deposition is to be made and a suggested manner in which the proposed 
deposition is to be conducted (telephone,

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audio-visual telecommunication, or by personal attendance of the 
individuals who are expected to participate in the deposition). The 
application for an order for the taking of testimony by deposition shall 
be made in writing, unless it is made orally on the record at an oral 
hearing.
    (b) Response; service. If any such application is made orally on the 
record at an oral hearing, each party other than the applicant, present 
at such hearing, may respond to it orally. If any such application is in 
writing it shall be served on each party other than the applicant, and 
each such other party shall have not less than 20 days, from the date of 
service on such party of the application, to file a written response to 
it.
    (c) Written questions (interrogatories). (1) If the examination will 
be oral, parties who will not be present or represented at it may file 
written questions with the officer prior to the time of the examination.
    (2) The presiding officer may direct, or the parties may agree, that 
the deposition, if taken, shall be taken by means of written questions. 
If the presiding officer finds, upon the protest of a party to the 
proceeding, that such party has a principal place of business or 
residence more than 100 miles from the place of the examination and that 
it would constitute an undue hardship on such party to be present or 
represented at an oral examination at such place, the deposition, if 
taken, shall be taken by means of written questions. In any such case, 
the presiding officer shall state on the record at the oral hearing 
that, or shall serve the parties with notice that, the deposition, if 
taken, shall be taken by means of written questions.
    (3) If the examination is conducted by means of written questions, 
copies of the applicant's questions must be received by the other party 
to the proceeding and the officer at least 10 days prior to the date set 
for the examination unless otherwise agreed, and any cross questions of 
a party other than the applicant must be received by the applicant and 
the officer at any time prior to the time of the examination.
    (d) Order. (1) The presiding officer, if satisfied that good cause 
for taking the deposition is present, may order the taking of the 
deposition.
    (2) The order shall be served on the parties and shall include:
    (i) The name and address of the officer before whom the deposition 
is to be made;
    (ii) The name of the deponent;
    (iii) Whether the deposition will be oral or on written questions;
    (iv) If the deposition is oral, the manner in which the deposition 
is to be conducted (telephone, audio-visual telecommunication, or 
personal attendance of those who are to participate in the deposition); 
and
    (v) The time, which shall not be less than 20 days after the 
issuance of the order, and place.
    (3) The officer, time, place, and manner of the deposition as stated 
in the presiding officer's order need not be the same as the officer, 
time, place, and manner suggested in the application.
    (4) The deposition shall be conducted in the manner (telephone, 
audio-visual telecommunication, or personal attendance of those who are 
to participate in the deposition) agreed to by the parties.
    (5) If the parties cannot agree on the manner in which the 
deposition is to be conducted:
    (i) The deposition shall be conducted by telephone unless the 
presiding officer determines that conducting the deposition by audio-
visual telecommunication:
    (A) Is necessary to prevent prejudice to a party;
    (B) Is necessary because of a disability of any individual expected 
to participate in the deposition; or
    (C) Would cost less than conducting the deposition by telephone.
    (ii) If the deposition is not conducted by telephone, the deposition 
shall be conducted by audio-visual telecommunication unless the 
presiding officer determines that conducting the deposition by personal 
attendance of any individual who is expected to participate in the 
deposition:
    (A) Is necessary to prevent prejudice to a party;
    (B) Is necessary because of a disability of any individual expected 
to participate in the deposition; or

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    (C) Would cost less than conducting the deposition by telephone or 
audio-visual telecommunication.
    (e) Qualifications of officer. No deposition shall be made except 
before an officer authorized by the law of the United States or by the 
law of the place of the examination to administer oaths, or before an 
officer authorized by the Secretary to administer oaths, or before the 
presiding officer. No deposition shall be made before an officer who is 
a relative (within the third degree by blood or marriage), employee, 
attorney, or representative of any party (or an employee of an attorney 
or representative of any party), or who is financially interested in the 
result of the proceeding.
    (f) Procedure on examination. The deponent shall be examined under 
oath or affirmation, and the testimony of the deponent shall be recorded 
by the officer, or by some person under the direction and in the 
presence of the officer. If the examination is on interrogatories, they 
shall be propounded by the officer. If the examination is oral, the 
deponent shall be examined first by the party at whose instance the 
deposition is taken, or the representative of such party, and shall be 
subject to cross-examination by any other party or the representative 
thereof who is present at the examination; the officer shall propound 
any interrogatories filed with the officer by parties not present or 
represented at the examination.
    (g) Certification and filing by officer. The officer shall certify 
on the transcript or recording that the deponent was duly sworn by the 
officer and that the transcript or recording is a true record of the 
deponent's testimony, with such exceptions as the certificate shall 
specify. The officer shall then securely seal the transcript or 
recording, together with three copies of the transcript or recording, 
with an extra copy for each party in excess of two, in an envelope, and 
mail the same by registered or certified mail to the presiding officer.
    (h) Service; correction. After the transcript or recording is 
received by the presiding officer, it shall promptly be served on all 
parties. Any party, within 20 days after such service, may file a 
written motion proposing corrections to the transcript or recording. Any 
such motion shall be served on each party other than the one filing it, 
who shall have 10 days to file a written response to it. Any such 
response shall be served on each party other than the one filing it. 
Such documents, if filed, shall be a part of the record of the 
proceeding if any portion of the transcript or recording is made a part 
of the record. All portions of the transcript or recording which are not 
referred to in any such motion shall be presumed to be accurate except 
for obvious typographical errors.
    (i) Use. If a written hearing is held, a transcript or recording, of 
a deposition ordered and taken in accord with this section, may be made 
a part of the record as evidence by any party, by written motion filed 
with such party's evidence. If an oral hearing is held, except as 
otherwise provided in these rules, such a transcript or recording may be 
made a part of the record as evidence, on written motion filed by any 
party, or oral motion of any party made at the oral hearing, if no party 
objects after reasonable notice and opportunity to do so, or if the 
presiding officer finds that the evidence is otherwise admissible and:
    (1) That the witness is dead;
    (2) That the witness is unable to attend or testify for any good 
reason including age, sickness, infirmity, or imprisonment;
    (3) That the party offering the transcript or recording has tried 
without success to procure the attendance of the witness by subpoena; or
    (4) That such exceptional circumstances exist as to make it 
desirable, in the interests of justice and with due regard to the 
importance of presenting the testimony orally before the presiding 
officer, to allow the transcript or recording to be used.

If any portion of a transcript or recording of a deposition is made a 
part of the record as evidence on motion of any party, any other party 
may make a part of the record as evidence the remainder, or any other 
portion, of the transcript or recording.
    (j) Expenses. Fees and reimbursements payable to an officer taking a 
deposition, or other person recording

[[Page 39]]

the testimony in the deposition, shall be paid by the party at whose 
instance the deposition is taken.
    (k) Subpoenas. No subpoena can issue, to compel attendance, 
testimony, or production of documentary evidence, at an examination 
under this rule 9.
    (l) Agreement of parties. In any case, any transcript or recording 
of any deposition, or any part of such a transcript or recording, may be 
made a part of the record as evidence by agreement of the parties other 
than a party failing to file an answer as required in these rules.

[43 FR 30510, July 14, 1978, as amended at 55 FR 41184, Oct. 10, 1990; 
60 FR 8465, Feb. 14, 1995]