§ 6-328. Persons before whom depositions may be taken.
(a) Within this State. Within this State depositions may be taken before a judge or clerk of the Supreme Court or district court, a county judge, clerk magistrate, notary public, or any person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.
(b) Elsewhere Within the United States. Within other states of the United States or within a territory or insular possession subject to the jurisdiction of the United States depositions may 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, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.
(c) In Foreign Countries. In a foreign country, depositions may be taken
(1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or
(2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his or her commission to administer any necessary oath and take testimony, or
(3) pursuant to a letter rogatory.
A commission or a letter rogatory shall be issued on application and notice on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in [here name the country]." Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.
(d) Disqualification for Interest. The officer before whom the deposition is taken and the person recording the testimony shall not be a relative, employee, or attorney of any of the parties, nor a relative or employee of such attorney, nor financially interested in the action.
(e) Depositions for Use in Other Jurisdictions. Rule 30A applies when the deposition of any person is to be taken in this state for use in proceedings in another state. When the deposition of any other person is to be taken in that state for use in proceedings in another country, witnesses may be compelled to appear and testify in the same manner and by the same process and proceedings as may be employed for the purpose of taking testimony in proceedings pending in this state. The district court for the county where the deponent is found may make such orders as could be made if the deposition were intended for use in this jurisdiction, having due regard for the laws and rules of the other country.
COMMENT TO RULE 28
Subsection (a) follows former Neb. Rev. Stat. § 25-1267.14 (Repealed 1982), with the deletion of mayors and master commissioners as unnecessary. Subsection (b) does not follow former Nebraska statutes; the language of federal rule 28(a) was adopted to describe the officer by reference to the laws of the sister state or of the United States. Subsection (c) is new language on depositions in foreign countries and is taken from federal rule 28(b) which sets out all possible ways of taking depositions outside the United States. Subsection (d) follows the language of Neb. Rev. Stat. § 25-1267.17 (Repealed 1982), by applying the disqualification rule to both the officer and the person recording the testimony, if those are not the same person.
§ 6-328(e) and Comment amended January 27, 2021, effective February 16, 2021.