---
kind: "section"
citation: "43 C.F.R. § 4.1033"
title: "43"
number: "4.1033"
heading: "Under what circumstances will the ALJ authorize a party to depose a witness to preserve testimony?"
url: "https://uscodex.org/cfr/43/4.1033"
---

# §4.1033. Under what circumstances will the ALJ authorize a party to depose a witness to preserve testimony?

- (a) **General.** A party may depose a witness to preserve testimony only if the ALJ determines that the party has met the criteria set forth in [paragraph (b)](#b) of this section and authorizes the deposition in a written order or during a prehearing conference. Authorization of depositions for discovery purposes is governed by [§ 4.1031](/cfr/43/4.1031.md).
- (b) **Criteria.**
  - (1) The ALJ may authorize a deposition to preserve testimony only if the party shows that the witness:
    - (i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
    - (ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.
  - (2) [Paragraph (b)(1)(ii)](#b-1-ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.
  - (3) A party may depose a senior Department employee of OFA only if the party shows:
    - (i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
    - (ii) That the deposition would not significantly interfere with the employee's ability to perform his or her official duties.
- (c) **Motion and notice.** A party seeking the ALJ's authorization to take a deposition to preserve testimony must file a motion which explains how the criteria in [paragraph (b)](#b) of this section have been met and states:
  - (1) The time and place that the deposition is to be taken;
  - (2) The name and address of the person before whom the deposition is to be taken;
  - (3) The name and address of the witness whose deposition is to be taken; and
  - (4) **Any documents or materials that the witness is to produce.**

## Notes

### Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 479a-1.

### Source

Source: 80 FR 48459, Aug. 13, 2015, unless otherwise noted.

### Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

### Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.