FCC 1.321 Revised as of October 1, 2006
Goto Year:2005 |
2007
Sec. 1.321 Use of depositions at the hearing.
(a) No inference concerning the admissibility of a deposition in evidence
shall be drawn because of favorable action on the notice to take
depositions.
(b) Except as provided in this paragraph and in Sec. 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 other party.
(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 Sec. 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 therefor.
[ 33 FR 463 , Jan. 12, 1968, as amended at 41 FR 14874 , Apr. 8, 1976]
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