[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR3.33]

[Page 60-62]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 3_RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS--Table of Contents
 
                 Subpart D_Discovery; Compulsory Process
 
Sec. 3.33  Depositions.

    (a) In general. Any party may take a deposition of a named person or 
of a person or persons described with reasonable particularity, provided 
that such deposition is reasonably expected to yield information within 
the scope of discovery under Sec. 3.31(c)(1). Such party may, by 
motion, obtain from the Administrative Law Judge an order to preserve 
relevant evidence upon a showing that there is substantial reason to 
believe that such evidence would not otherwise be available for 
presentation at the hearing. Depositions may be taken before any person 
having power to administer oaths, either under the law of the United 
States or of the state or other place in which the deposition is taken, 
who may be designated by the party seeking the deposition, provided that 
such person shall have no interest in the outcome of the proceeding. The 
party seeking the deposition shall serve upon each person whose 
deposition is sought and upon each party to the proceeding reasonable 
notice in writing of the time and place at which it will be taken, and 
the name and address of each person or persons to be examined, if known, 
and if the name is not known, a description sufficient to identify them. 
The parties may stipulate in writing or the Administrative Law Judge may 
upon motion order that a deposition be taken by telephone or other 
remote electronic means. A deposition taken by such means is deemed 
taken at the place where the deponent is to answer questions.
    (b) [Reserved]
    (c) Notice to corporation or other organization. A party may name as 
the deponent a public or private corporation, partnership, association, 
governmental agency other than the Federal Trade Commission, or any 
bureau or regional office to the Federal Trade Commission, and describe 
with reasonable particularity the matters on which examination is 
requested. The organization

[[Page 61]]

so names 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 he will 
testify. A subpoena shall advise a non-party organization of its duty to 
make such a designation. The persons so designated shall testify as to 
matters known or reasonably available to the organization. This 
subsection does not preclude taking a deposition by any other procedure 
authorized in these rules.
    (d) Taking of deposition. Each deponent shall be duly sworn, and any 
party shall have the right to question him. Objections to questions or 
to evidence presented shall be in short form, stating the grounds of 
objections relied upon. The questions propounded and the answers 
thereto, together with all objections made, shall be recorded and 
certified by the officer. Thereafter, upon payment of the charges 
therefor, the officer shall furnish a copy of the deposition to the 
deponent and to any party.
    (e) Depositions upon written questions. A party desiring to take a 
deposition upon written questions shall serve them upon every other 
party with a notice stating:
    (1) The name and address of the person who is to answer them, and
    (2) The name or descriptive title and address of the officer before 
whom the deposition is to be taken.

A deposition upon written questions may be taken of a public or private 
corporation, partnership, association, governmental agency other than 
the Federal Trade Commission, or any bureau or regional office of the 
Federal Trade Commission in accordance with the provisions of Rule 
3.33(c). Within 30 days after the notice and written questions are 
served, any other party may serve cross questions upon all other 
parties. Within 10 days after being served with cross questions, the 
party taking the deposition may serve redirect questions upon all other 
parties. Within 10 days after being served with redirect questions, any 
other party may serve recross questions upon all other parties. The 
content of any question shall not be disclosed to the deponent prior to 
the taking of the deposition. A copy of the notice and copies of all 
questions served shall be delivered by the party taking the deposition 
to the officer designated in the notice, who shall proceed promptly to 
take the testimony of the deponent in response to the questions and to 
prepare, certify, and file or mail the deposition, attaching thereto the 
copy of the notice and the questions received by him. When the 
deposition is filed the party taking it shall promptly give notice 
thereof to all other parties.
    (f) Correction of deposition. A deposition may be corrected, as to 
form or substance, in the manner provided by Sec. 3.44(b). Any such 
deposition shall, in addition to the other required procedures, be read 
to or by the deponent and signed by him, unless the parties by 
stipulation waive the signing or the deponent is unavailable or cannot 
be found or refuses to sign. If the deposition is not signed by the 
deponent within 30 days of its submission or attempted submission, the 
officer shall sign it and certify that the signing has been waived or 
that the deponent is unavailable or that the deponent has refused to 
sign, as the case may be, together with the reason for the refusal to 
sign, if any has been given. The deposition may then be used as though 
signed unless, on a motion to suppress under Rule 3.33(g)(3)(iv), the 
Administrative Law Judge determines that the reasons given for the 
refusal to sign require rejection of the deposition in whole or in part. 
In addition to and not in lieu of the procedure for formal correction of 
the deposition, the deponent may enter in the record at the time of 
signing a list of objections to the transcription of his remarks, 
stating with specificity the alleged errors in the transcript.
    (g)(1) Use of depositions in hearings. At the hearing on the 
complaint or upon a motion, any part or all of a deposition, so far as 
admissible under the rules of evidence applied as though the witness 
were then present and testifying, may be used 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:

[[Page 62]]

    (i) Any deposition may be used for the purpose of contradicting or 
impeaching the testimony of deponent as a witness.
    (ii) The deposition of a party or of anyone who at the time of 
taking the deposition was an officer, director, or managing agent, or a 
person designated to testify on behalf of a public or private 
corporation, partnership or association which is a party, or of an 
official or employee (other than a special employee) of the Commission, 
may be used by an adverse party for any purpose.
    (iii) A deposition may be used by any party for any purpose if the 
Administrative Law Judge finds:
    (A) That the deponent is dead; or
    (B) That the deponent is out of the United States or is located at 
such a distance that his attendance would be impractical, unless it 
appears that the absence of the deponent was procured by the party 
offering the deposition; or
    (C) That the deponent is unable to attend or testify because of age, 
sickness, infirmity, or imprisonment; or
    (D) That the party offering the deposition has been unable to 
procure the attendance of the deponent by subpoena; or
    (E) 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 testimony of witnesses orally in open 
hearing, to allow the deposition to be used.
    (iv) If only part of a deposition is offered in evidence by a party, 
any other party may introduce any other part which ought in fairness to 
be considered with the part introduced.
    (2) Objections to admissibility. Subject to the provisions of 
paragraph (g)(3) of this section, objection may be made at the hearing 
to receiving in evidence any deposition or part thereof for any reason 
which would require the exclusion of the evidence if the witness were 
then present and testifying.
    (3) Effect of errors and irregularities in depositions--(i) 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 the notice.
    (ii) As to disqualification of officer. Objection to taking a 
deposition because of disqualification of the officer 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.
    (iii) As to taking of deposition. (A) Objections to the competency 
of a witness or to the competency, relevancy, or materiality of 
testimony are not waived by failure to make them before or during the 
taking of the deposition, unless the ground of the objection is one 
which might have been obviated or removed if presented at that time.
    (B) 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.
    (C) Objections to the form of written questions are waived unless 
served in writing upon all parties within the time allowed for serving 
the succeeding cross or other questions and within 5 days after service 
of the last questions authorized.
    (iv) 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, endorsed, or otherwise 
dealt with by the officer 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.

[43 FR 56865, Dec. 4, 1978, as amended at 61 FR 50648, Sept. 26, 1996; 
66 FR 17629, Apr. 3, 2001]