---
kind: "section"
citation: "46 C.F.R. § 502.149"
title: "46"
number: "502.149"
heading: "Use of depositions at hearings."
url: "https://uscodex.org/cfr/46/502.149"
---

# §502.149. Use of depositions at hearings.

- (a) **Using depositions.**
  - (1) **In general.** At a hearing, all or part of a deposition may be used against a party on these conditions:
    - (i) The party was present or represented at the taking of the deposition or had reasonable notice of it;
    - (ii) It is used to the extent it would be admissible if the deponent were present and testifying; and
    - (iii) The use is allowed by [§ 502.149(a)(2) through (7)](#a-2..a-7).
  - (2) **Impeachment and other uses.** Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by [§ 502.204](/cfr/46/502.204.md) of [subpart L](/cfr/46/subpartL.md) of this part.
  - (3) **Deposition of party, representative, or designee.** An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing representative, or designee under [§ 502.143(b)(6)](/cfr/46/502.143.md?p=b-6) or [§ 502.144(a)(4)](/cfr/46/502.144.md?p=a-4).
  - (4) **Unavailable witness.** A party may use for any purpose the deposition of a witness, whether or not a party, if the Commission or presiding officer finds:
    - (i) That the witness is dead;
    - (ii) That the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
    - (iii) That the party offering the deposition could not procure the witness's attendance by subpoena; or
    - (iv) On motion and notice, that exceptional circumstances make it desirable, in the interest of justice and with due regard to the importance of live testimony at a hearing, to permit the deposition to be used.
  - (5) **Using part of a deposition.** If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.
  - (6) **Substituting a party.** Substituting a party does not affect the right to use a deposition previously taken.
  - (7) **Deposition taken in an earlier action.** A deposition lawfully taken and, if required, filed in any Federal or State court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by [§ 502.204](/cfr/46/502.204.md) of [subpart L](/cfr/46/subpartL.md) of this part.
- (b) **Objections to admissibility.** Subject to [§ 502.142(b)](/cfr/46/502.142.md?p=b) and [§ 502.149(d)(3)](#d-3), an objection may be made at a hearing to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.
- (c) **Form of presentation.** Unless the presiding officer orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the presiding officer with the testimony in nontranscript form as well.
- (d) **Waiver of objections.**
  - (1) **To the notice.** An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.
  - (2) **To the officer's qualification.** An objection based on qualification of the officer before whom a deposition is to be taken is waived if not made:
    - (i) Before the deposition begins; or
    - (ii) Promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
  - (3) **To the taking of the deposition.**
    - (i) **Objection to competence, relevance, or materiality.** An objection to a deponent's competence, or to the competence, relevance, or materiality of testimony, is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
    - (ii) **Objection to an error or irregularity.** An objection to an error or irregularity at an oral examination is waived if:
      - (A) It relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and
      - (B) **It is not timely made during the deposition.**
    - (iii) **Objection to a written question.** An objection to the form of a written question under [§ 502.144](/cfr/46/502.144.md) of this subpart is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it.
  - (4) **To completing and returning the deposition.** An objection to how the officer transcribed the testimony, or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition, is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known. [[Rule 209](/cfr/46/209.md).]

## Notes

### Amendments

[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016]

### Authority

Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-584; 591-596; 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C., 40103-40104, 40304, 40306, 40501-40503, 40701-40706, 41101-41109, 41301-41309, 44101-44106, 46105; 5 CFR part 2635.

### Source

Source: 49 FR 44369, Nov. 6, 1984, unless otherwise noted.

### Amendments

[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016]