[Code of Federal Regulations]

[Title 14, Volume 4]

[Revised as of January 1, 2006]

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

[CITE: 14CFR302.26]



[Page 290-292]

 

                     TITLE 14--AERONAUTICS AND SPACE

 

   CHAPTER II--OFFICE OF THE SECRETARY, DEPARTMENT OF TRANSPORTATION 

                         (AVIATION PROCEEDINGS)

 

PART 302_RULES OF PRACTICE IN PROCEEDINGS--Table of Contents

 

                Subpart A_Rules of General Applicability

 

Sec. 302.26  Depositions.



    (a) For good cause shown, the DOT decisionmaker or administrative 

law judge assigned to a proceeding may order that the testimony of a 

witness be taken by deposition and that the witness produce documentary 

evidence in connection with such testimony. Ordinarily an order to take 

the deposition of a witness will be entered only if:

    (1) The person whose deposition is to be taken would be unavailable 

at the hearing,

    (2) The deposition is deemed necessary to perpetuate the testimony 

of the witness, or

    (3) The taking of the deposition is necessary to prevent undue and 

excessive expense to a party and will not result in an undue burden to 

other parties or in undue delay.

    (b) Any party desiring to take the deposition of a witness shall 

make application therefor in duplicate to the administrative law judge 

or, in the event that an administrative law judge has not been assigned 

to a proceeding or is not available, to the DOT decisionmaker or Chief 

Administrative Law Judge, setting forth the reasons why such deposition 

should be taken, the name and residence of the witness, the time and 

place proposed for the taking of the deposition, and a general 

description of the matters concerning



[[Page 291]]



which the witness will be asked to testify. If good cause be shown, the 

administrative law judge, the DOT decisionmaker, or the Chief 

Administrative Law Judge, as the case may be, may, in his or her 

discretion, issue an order authorizing such deposition and specifying 

the witness whose deposition is to be taken, the general scope of the 

testimony to be taken, the time when, the place where, the designated 

officer (authorized to take oaths) before whom the witness is to 

testify, and the number of copies of the deposition to be supplied. Such 

order shall be served upon all parties by the person proposing to take 

the deposition a reasonable period in advance of the time fixed for 

taking testimony.

    (c) Witnesses whose testimony is taken by deposition shall be sworn 

or shall affirm before any questions are put to them. Each question 

shall be recorded and the answers shall be taken down in the words of 

the witness.

    (d) Objections to questions or evidence shall be in short form, 

stating the grounds of objection relied upon, but no transcript filed by 

the designated officer shall include argument or debate. Objections to 

questions or evidence shall be noted by the designated officer upon the 

deposition, but he or she shall not have power to decide on the 

competency or materiality or relevance of evidence, and he or she shall 

record the evidence subject to objection. Objections to questions or 

evidence not made before the designated officer shall not be deemed 

waived unless the ground of the objection is one that might have been 

obviated or removed if presented at that time.

    (e) The testimony shall be reduced to writing by the designated 

officer, or under his or her direction, after which the deposition shall 

be signed by the witness unless the parties by stipulation waive the 

signing or the witness is ill or cannot be found or refuses to sign, and 

certified in usual form by the designated officer. If the deposition is 

not signed by the witness, the designated officer shall state on the 

record this fact and the reason therefor. The original deposition and 

exhibits shall be forwarded to Department of Transportation Dockets and 

shall be filed in the proceedings.

    (f) Depositions may also be taken and submitted on written 

interrogatories in substantially the same manner as depositions taken by 

oral examination. Ordinarily such procedure will be authorized only if 

necessary to achieve the purposes of an oral deposition and to serve the 

balance of convenience of the parties. The interrogatories shall be 

filed in quadruplicate with two copies of the application and a copy of 

each shall be served on each party. Within seven (7) days after service 

any party may file with the person to whom application was made two 

copies of his or her objections, if any, to such interrogatories and may 

file such cross-interrogatories as he or she desires to submit. Cross-

interrogatories shall be filed in quadruplicate, and a copy thereof 

together with a copy of any objections to interrogatories, shall be 

served on each party, who shall have five (5) days thereafter to file 

and serve his or her objections, if any, to such cross-interrogatories. 

Objections to interrogatories or cross-interrogatories, shall be served 

on the DOT decisionmaker or the administrative law judge considering the 

application. Objections to interrogatories shall be made before the 

order for taking the deposition issues and if not so made shall be 

deemed waived. When a deposition is taken upon written interrogatories, 

and cross-interrogatories, no party shall be present or represented, and 

no person other than the witness, a reporter, and the designated officer 

shall be present at the examination of the witness, which fact shall be 

certified by the designated officer, who shall ask the interrogatories 

and cross-interrogatories to the witness in their order and reduce the 

testimony to writing in the witness's own words. The provisions of 

paragraph (e) of this section shall be applicable to depositions taken 

in accordance with this paragraph.

    (g) All depositions shall conform to the specifications of Sec. 

302.3 except that the filing of three copies thereof shall be 

sufficient. Any fees of a witness, the reporter, or the officer 

designated to take the deposition shall be paid by the person at whose 

instance the deposition is taken.



[[Page 292]]



    (h) The fact that a deposition is taken and filed in a proceeding as 

provided in this section does not constitute a determination that it is 

admissible in evidence or that it may be used in the proceeding. Only 

such part or the whole of a deposition as is received in evidence shall 

constitute a part of the record in such proceeding upon which a decision 

may be based.