[Code of Federal Regulations]
[Title 17, Volume 1]
[Revised as of April 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 17CFR10.44]

[Page 246-247]
 
              TITLE 17--COMMODITY AND SECURITIES EXCHANGES
 
             CHAPTER I--COMMODITY FUTURES TRADING COMMISSION
 
PART 10_RULES OF PRACTICE--Table of Contents
 
  Subpart D_Prehearing Procedures; Prehearing Conferences; Discovery; 
                               Depositions
 
Sec.  10.44  Depositions and interrogatories.

    (a) When permitted. If it appears that:
    (1) A prospective witness will be unable to attend or testify at a 
hearing on the basis of age, illness, infirmity, imprisonment or on the 
basis that he is or will be outside of the United States at the time of 
the hearing (unless it appears that the absence of the witness was 
procured by the party seeking to take the deposition),
    (2) His testimony is material,
    (3) It is necessary to take his deposition in the interest of 
Justice, the Administrative Law Judge may by order direct that his 
deposition be taken either orally or in the form of written 
interrogatories, and may issue a subpoena to compel the attendance of 
the witness for deposition.
    (b) Application for deposition. Any party desiring to take the 
deposition of a witness shall make application in writing to the 
Administrative Law Judge for an order to take deposition. In addition to 
the showing required in Sec.  10.44(a), the application shall include:
    (1) The name and post office address of the witness;
    (2) The specific matters concerning which the witness is expected to 
testify and their relevance;
    (3) The reasons why the deposition should be taken, supported by 
affidavits and a physician's certificate, where appropriate;
    (4) The time when, the place where, and the name and address of the 
person before whom the deposition is to be taken;
    (5) A specification of the documents and materials which the 
deponent is requested to produce;
    (6) Application for any subpoenas.
    (c) Service and reply. A copy of the application to take deposition 
shall be served upon every other party to the proceeding and upon the 
person sought to be deposed. Any party or the deponent may serve and 
file an opposition to the application within seven days after the 
application is filed.
    (d) Time when, place where, and officer before whom deposition is 
taken--(1) Where the deposition is taken. Unless otherwise ordered or 
agreed to by stipulation, depositions shall be taken in the city or 
municipality where the deponent is located.
    (2) Officer before whom taken. (i) Within the United States or a 
territory of the United States, depositions shall be taken before an 
officer authorized to administer oaths by the laws of the United States 
or of the place where the examination is held.
    (ii) Within a foreign country, depositions may be taken before an 
officer or person designated by the Administrative Law Judge or agreed 
upon by the parties by a stipulation in writing to be filed with the 
Proceedings Clerk.
    (e) Procedures for taking oral depositions. (1) Oral examination and 
crossexamination of witnesses shall be conducted in a manner similar to 
that permitted at a formal hearing. All questions and testimony shall be 
recorded verbatim, except to the extent that all parties present or 
represented may agree that a matter shall be off the record.
    (2) All objections made at the time of the examination to the 
qualifications of the officer taking the deposition, or to the manner of 
taking it, or to the evidence presented, or to the conduct of any party, 
or any other objection to the proceeding shall be noted by the officer 
upon the deposition, and shall subsequently be determined by the 
Administrative Law Judge. Evidence objected to shall be taken subject to 
the objections. However, the parties may stipulate that, except as to 
objections to the form of questions, all objections to the matters 
testified to in a deposition are preserved for the hearing, whether or 
not raised at the time of deposition.
    (3) During the taking of a deposition a party or deponent may 
request and obtain an adjournment to permit an

[[Page 247]]

application to be made to the Administrative Law Judge for an order 
suspending the deposition on grounds of bad faith in the conduct of the 
examination, annoyance, embarrassment, oppression of a deponent or 
party, or improper questions. An attorney who requests and obtains an 
adjournment for this purpose but fails, without good cause, promptly to 
apply for relief to the Administrative Law Judge may be found guilty of 
contemptuous conduct in accordance with Sec.  10.11(b) of these rules.
    (f) Procedures for use of interrogatories. (1) If depositions are to 
be taken and submitted on written interrogatories, the interrogatories 
shall be filed in triplicate with the application for deposition and 
served on the parties. Within ten days after service, any party may 
file, in triplicate, with the Proceedings Clerk, his objections, if any, 
to such interrogatories and may file such cross-interrogatories as he 
desires to submit. Other parties shall have ten days to file their 
objections to cross-interrogatories. Objections shall be settled by the 
Administrative Law Judge.
    (2) 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 stenographic reporter, and the officer 
shall be present. The officer shall propound the interrogatories and 
cross-interrogatories to the witness, and the interrogatories and 
responses thereto shall be transcribed and reduced to writing.
    (g) Use of depositions at hearing. (1) Any part or all of a 
deposition, to the extent admissible under rules of evidence applied as 
though the witness were then present and testifying at the hearing, may 
be used against any party who had reasonable notice of the taking of the 
deposition, if the Administrative Law Judge finds that:
    (i) The witness is dead;
    (ii) The witness is unable to attend or testify because of age, 
illness, infirmity, or imprisonment;
    (iii) The witness is out of the United States at the time of the 
hearing, unless it appears that the absence of the witness was procured 
by the party offering the deposition.
    (2) If only part of a deposition is offered in evidence by a party, 
an adverse party may require him to introduce any other part which ought 
in fairness to be considered with the part introduced, and any party may 
introduce any other parts.
    (3) Objection may be made at a 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.

[41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995]