[Code of Federal Regulations]

[Title 49, Volume 5]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR386.47]



[Page 267]

 

                        TITLE 49--TRANSPORTATION

 

                      DEPARTMENT OF TRANSPORTATION

 

PART 386_RULES OF PRACTICE FOR MOTOR CARRIER, BROKER, FREIGHT FORWARDER, 

AND HAZARDOUS MATERIALS PROCEEDINGS--Table of Contents

 

                  Subpart D_General Rules and Hearings

 

Sec. 386.47  Use of deposition at hearings.



    (a) Generally. At the hearing, any part or all of a deposition, so 

far as admissible under the rules of evidence, may be used against any 

party who was present or represented at the taking of the deposition or 

who had due notice thereof in accordance with any one of the following 

provisions:

    (1) Any deposition may be used by any party for the purpose of 

contradicting or impeaching the testimony of the deponent as a witness.

    (2) The deposition of expert witnesses, particularly the deposition 

of physicians, may be used by any party for any purpose, unless the 

Assistant Administrator or administrative law judge rules that such use 

would be unfair or a violation of due process.

    (3) The deposition of a party or of anyone who at the time of taking 

the deposition was an officer, director, or duly authorized agent of a 

public or private organization, partnership, or association which is a 

party, may be used by any other party for any purpose.

    (4) The deposition of a witness, whether or not a party, may be used 

by any party for any purpose if the presiding officer finds:

    (i) That the witness is dead; or

    (ii) That the witness is out of the United States or more than 100 

miles from the place of hearing 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 to testify because of 

age, sickness, 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 testimony of witnesses orally 

in open hearing, to allow the deposition to be used.

    (5) If only part of a deposition is offered in evidence by a party, 

any other party may require him or her to introduce all of it which is 

relevant to the part introduced, and any party may introduce any other 

parts.

    (b) Objections to admissibility. Except as provided in this 

paragraph, 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.

    (1) 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.

    (2) 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 reasonable objection thereto is 

made at the taking of the deposition.

    (3) Objections to the form or written interrogatories are waived 

unless served in writing upon the party propounding them.

    (c) Effect of taking using depositions. A party shall not be deemed 

to make a person his or her own witness for any purpose by taking his or 

her deposition. The introduction in evidence of the deposition or any 

part thereof for any purpose other than that of contradicting or 

impeaching the deponent makes the deponent the witness of the party 

introducing the deposition, but this shall not apply to the use by any 

other party of a deposition as described in paragraph (a)(2) of this 

section. At the hearing, any party may rebut any relevant evidence 

contained in a deposition whether introduced by him or her or by any 

other party.