22 C.F.R. §§ 92.55–92.64

§92.55. Consular authority and responsibility for taking depositions.

22 C.F.R. § 92.55

(a)

Requests to take depositions or designations to execute commissions to take depositions. Any United States notarizing officer may be requested to take a deposition on notice, or designated to execute a commission to take depositions. A commission or notice should, if possible, identify the officer who is to take depositions by his official title only in the following manner: “Any notarizing officer of the United States of America at (name of locality)”. The notarizing officer responsible for the performance of notarial acts at a post should act on a request to take a deposition on notice, or should execute the commission, when the documents are drawn in this manner, provided local law does not preclude such action. However, when the officer (or officers) is designated by name as well as by title, only the officer (or officers) so designated may take the depositions. In either instance, the officer must be a disinterested party. Rule 28(c) of the Rules of Civil Procedure for the district courts of the United States prohibits the taking of a deposition before a person who is a relative, employee, attorney or counsel of any of the parties, or who is a relative or employee of such attorney or counsel, or who is financially interested in the action.

(b)

Authority in Federal law. The authority for the taking of depositions, charging the appropriate fees, and imposing the penalty for giving false evidence is generally set forth in 22 U.S.C. 4215 and 4221. The taking of depositions for federal courts of the United States is further governed by the Federal Rules of Civil Procedure. For the provisions of law which govern particularly the taking of depositions to prove the genuineness of foreign documents which it is desired to introduce in evidence in any criminal action or proceeding is a United States federal court, see 18 U.S.C. 3491 through 3496.

(c)

Procedure where laws of the foreign country do not permit the taking of depositions. In countries where the right to take depositions is not secured by treaty, notarizing officers may take depositions only if the laws or authorities of the national government will permit them to do so. Notarizing officers in countries where the taking of depositions is not permitted who receive notices or commissions for taking depositions should return the documents to the parties from whom they are received explaining why they are returning them, and indicating what other method or methods may be available for obtaining the depositions, whether by letters rogatory or otherwise.

Notes, amendments, and revision history

Amendments

[60 FR 51722, Oct. 3, 1995]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[60 FR 51722, Oct. 3, 1995]

§92.56. Summary of procedure for taking depositions.

22 C.F.R. § 92.56

In taking a deposition on notice or executing a commission to take depositions, a notarizing officer should conform to any statutory enactments on the subject in the jurisdiction in which the depositions will be used. He should also comply with any special instructions which accompany the request for a deposition on notice or a commission. Unless otherwise directed by statutory enactments or special instructions, the officer should proceed as follows in taking depositions:

(a)

Request the witnesses, whose testimony is needed, to appear before him; or, at the request of any party to the action or proceeding, request designated persons to supply him or the requesting party with needed records or documents in their possession, or copies thereof;

(b)

When necessary, act as interpreter or translater, or see that arrangements are made for some qualified person to act in this capacity;

(c)

Before the testimony is taken, administer oaths (or affirmations in lieu thereof) to the interpreter or translator (if there is one), to the stenographer taking down the testimony, and to each witness;

(d)

Have the witnesses examined in accordance with the procedure described in §§ 92.57 to 92.60;

(e)

Either record, or have recorded in his presence and under his direction, the testimony of the witnesses;

(f)

Take the testimony, or have it taken, stenographically in question-and-answer form and transcribed (see § 92.58) unless the parties to the action agree otherwise (rules 30(c) and 31(b), Rules of Civil Procedure for the District Courts of the United States);

(g)

Be actually present throughout the examination of the witnesses, but recess the examination for reasonable periods of time and for sufficient reasons;

(h)

Mark or cause to be marked, by identifying exhibit numbers or letters, all documents identified by a witness or counsel and submitted for the record.

Notes, amendments, and revision history

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

§92.57. Oral examination of witnesses.

22 C.F.R. § 92.57

When a witness is examined on the basis of oral interrogatories, the counsel for the party requesting the deposition has the right to conduct a direct examination of the witness without interruption except in the form of objection by opposing counsel. The opposing counsel has the same right on cross-examination. Cross-examination may be followed by redirect and recross-examinations until the interrogation is complete. The notarizing officer taking the deposition should endeavor to restrain counsel from indulging in lengthy colloquies, digressions, or asides, and from attempts to intimidate or mislead the witness. The notarizing officer has no authority to sustain or overrule objections but should have them recorded as provided in § 92.59. Instead of taking part in the oral examination of a witness, the parties notified of the taking of a deposition may transmit written interrogatories to the notarizing officer. The notarizing officer should then question the witness on the basis of the written interrogatories and should record the answers verbatim. (Rules 30 (c) and 31 (b), Rules of Civil Procedure for the District Courts of the United States.)

Notes, amendments, and revision history

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

§92.58. Examination on basis of written interrogatories.

22 C.F.R. § 92.58

Written interrogatories are usually divided into three parts:

(a)

The direct interrogatories or interrogatories in chief;

(b)

The cross-interrogatories; and

(c)

The redirect interrogatories.

Notes, amendments, and revision history

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995; 61 FR 14375, Apr. 1, 1996]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995; 61 FR 14375, Apr. 1, 1996]

§92.59. Recording of objections.

22 C.F.R. § 92.59

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, and any other objection to the proceedings must be noted in the deposition. Evidence objected to will be taken subject to the objections. (Rules 30 (c) and 31 (b), Rules of Civil Procedure for the District Courts of the United States.)

Notes, amendments, and revision history

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

§92.60. Examination procedures.

22 C.F.R. § 92.60

(a)

Explaining interrogatory to witness. If the witness does not understand what an interrogatory means, the notarizing officer should explain it to him, if possible, but only so as to get an answer strictly responsive to the interrogatory.

(b)

Refreshing memory by reference to written records. A witness may be permitted to refresh his memory by referring to notes, papers or other documents. The notarizing officer should have such occurrence noted in the record of the testimony together with a statement of his opinion as to whether the witness was using the notes, papers or other documents to refresh his memory or for the sake of testifying to matters not then of his personal knowledge.

(c)

Conferring with counsel. When the witness confers with counsel before answering any interrogatory, the notarizing officer should have that fact noted in the record of the testimony.

(d)

Examining witness as to personal knowledge. The notarizing officer may at any time during the examination of a witness propound such inquiries as may be necessary to satisfy himself whether the witness is testifying from his personal knowledge of the subject matter of the examination.

(e)

Witness not to leave officer's presence. The notarizing officer should request the witness not to leave his presence during the examination, except during the recesses for meals, rest, etc., authorized in § 92.56 (g). Failure of the witness to comply with this request must be noted in the record.

Notes, amendments, and revision history

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

§92.61. Transcription and signing of record of examination.

22 C.F.R. § 92.61

After the examination of a witness is completed, the stenographic record of the examination must be fully transcribed and the transcription attached securely to any document or documents to which the testimony in the record pertains. (See § 92.63 regarding the arrangement of papers.) The transcribed deposition must then be submitted to the witness for examination and read to or by him, unless such examination and reading are waived by the witness and by the parties to the action. Any changes in form or substance desired by the witness should be entered upon the deposition by the notarizing officer with a statement of the reasons given by the witness for making the changes. The witness should then sign the transcript of his deposition and should initial in the margin each correction made at his request. However, the signature and initials of the witness may be omitted if the parties to the action by stipulation waive the signing or if the witness is ill, refuses to sign, or cannot be found. If the deposition is not signed by the witness, the notarizing officer should sign it and should state on the record the reason for his action, i.e., the waiver of the parties, the illness or absence of the witness, or the refusal of the witness to sign, giving the reasons for such refusal. The deposition may then be used as though signed by the witness except when, on the motion to suppress, the court holds that the reasons given for the refusal to sign require the rejection of the deposition in whole or in part. (Rules 30 (e) and 31 (b), Rules of Civil Procedure for the District Courts of the United States.)

Notes, amendments, and revision history

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

§92.62. Captioning and certifying depositions.

22 C.F.R. § 92.62

The notarizing officer should prepare a caption for every deposition; should certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness; and should sign and seal the certification in the manner prescribed in §§ 92.15 and 92.16. (Rules 30 (f) (1) and 31 (b), Rules of Civil Procedures for the District Courts of the United States.)

Notes, amendments, and revision history

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

§92.63. Arrangement of papers.

22 C.F.R. § 92.63

Unless special instructions to the contrary are received, the various papers comprising the completed record of the depositions should usually be arranged in the following order from bottom to top:

(a)

Commission to take depositions (or notice of taking depositions), with interrogatories, exhibits, and other supporting documents fastened thereto.

(b)

Statement of fees charged, if one is prepared on a separate sheet.

(c)

Record of the responses of the various witnesses, including any exhibits the witnesses may submit.

(d)

Closing certificate.

Notes, amendments, and revision history

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

§92.64. Filing depositions.

22 C.F.R. § 92.64

(a)

Preparation and transmission of envelope. The notice or commission, the interrogatories, the record of the witnesses' answers, the exhibits, and all other documents and papers pertaining to the depositions should be fastened together (see § 92.63 regarding the arrangement of papers) and should be enclosed in an envelope sealed with the wax engraving seal of the post. The envelope should be endorsed with the title of the action and should be marked and addressed. The sealed envelope should then be transmitted to the court in which the action is pending.

(b)

Furnishing copies. The original completed depositions should not be sent to any of the parties to the action or to their counsel. However, the notarizing officer may furnish a copy of a deposition to the deponent or to any party to the action upon the payment of the copying fee and if certification is desired under official seal that the copy is a true copy, the certification fee prescribed in the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).

Notes, amendments, and revision history

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]

Authority

Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221.

Source

Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted.

Amendments

[22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995]