Goto Section: 1.319 | 1.323 | Table of Contents
Revised as of October 26, 2020
Goto Year:2020 |
§ 1.321 Use of depositions at the hearing.
Link to an amendment published at 85 FR 63181 , Oct. 6, 2020.
(a) No inference concerning the admissibility of a deposition in
evidence shall be drawn because of favorable action on the notice to
(b) Except as provided in this paragraph and in § 1.319, 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 the competency,
relevancy or materiality of testimony are waived by failure to make
them before or during the taking of depositions if (and only if) the
ground of the objection is one which might have been obviated or
removed if presented at that time.
(2) Objection on the ground of privilege is waived by failure to make
it before or during the taking of depositions.
(c) A party shall not be deemed to make a person his own witness for
any purpose by taking his 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 an adverse party of a deposition as described in paragraph
(d)(2) of this section. At the hearing any party may rebut any relevant
evidence contained in a deposition whether introduced by him or by any
(d) At the hearing (or in a pleading), any part or all of a deposition,
so far as admissible, 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 deponent as a witness.
(2) The deposition of a party or of any one who at the time of taking
the deposition was an officer, director, or managing agent of a public
or private corporation, partnership or association which is a party may
be used by an adverse party for any purpose.
(3) To the extent that the affirmative direct case of a party is made
in writing pursuant to § 1.248(d), the deposition of any witness,
whether or not a party, may be used by any party for any purpose,
provided the witness is made available for cross-examination. In all
cases, 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, 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 or testify because of age, sickness, infirmity, or
imprisonment; or (iv) 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.
(4) If only part of a deposition is offered in evidence by a party, an
adverse party may require him to introduce all of it which is relevant
to the part introduced, and any party may introduce any other parts.
(5) Substitution of parties does not affect the right to use
depositions previously taken; and, when an action in any hearing has
been dismissed and another action involving the same subject matter is
afterward brought between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly filed
in the former action may be used in the latter as if originally taken
[ 33 FR 463 , Jan. 12, 1968, as amended at 41 FR 14874 , Apr. 8, 1976]
Goto Section: 1.319 | 1.323
Goto Year: 2020 |
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