43 C.F.R. § 4.221 Depositions.
Title 43 - Public Lands: Interior
(a) Stipulation. Depositions in connection with a formal hearing may be taken upon stipulation of the parties. Failing an agreement therefor, depositions may be ordered under paragraphs (b) and (c) of this section. (b) Application for taking deposition. When an interested party files a written application, the administrative law judge or Indian probate judge may at any time thereafter order the taking of the sworn testimony of any person by deposition upon oral examination for the purpose of discovery or for use as evidence at a formal hearing. The application must be in writing and must set forth: (1) The name and address of the proposed deponent; (2) The name and address of the person, qualified under paragraph (d) of this section to take depositions, before whom the proposed examination is to be made; (3) The proposed time and place of the examination, which must be at least 20 days after the date of the filing of the application; and (4) The reasons why the deposition should be taken. (c) Order for taking deposition. If after examination of the application, the administrative law judge or Indian probate judge determines that the deposition should be taken, he or she will order its taking. The order must be served upon all interested parties and must state: (1) The name of the deponent; (2) The time and place of the examination, which must be at least 15 days after the date of the order except as stipulated otherwise; and (3) The name and address of the officer before whom the examination is to be made. The officer and the time and place need not be the same as those requested in the application. (d) Qualifications of officer. The deponent must appear before the administrative law judge or Indian probate judge or before an officer authorized to administer oaths by the law of the United States or by the law of the place of the examination. (e) Procedure on examination. The deponent must be examined under oath or affirmation and must be subject to cross-examination. The deponent's testimony must be recorded by the officer or someone in the officer's presence. An applicant who requests the taking of a person's deposition must make his or her own arrangements for payment of any costs incurred. (f) Submission to witness; changes; signing. (1) When the testimony is fully transcribed, the deposition must be submitted to the deponent for examination and must be read to or by him or her, unless examination and reading are waived by the deponent or by all other interested parties. (2) Any changes in form or substance that the deponent desires to make must be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them. (3) The deposition must then be signed by the deponent, unless the interested parties by stipulation waive the signing, or the witness is ill or cannot be found or refuses to sign. (4) If the deposition is not signed by the deponent, the officer must sign it and state on the record the fact of the waiver, the illness or absence of the deponent, or the refusal to sign together with the reason, if any, given therefore. The deposition may then be used as fully as though signed, unless the administrative law judge or Indian probate judge holds that the reason given for refusal to sign requires rejection of the deposition in whole or in part. (g) Certificates by officer. The officer must certify on the deposition that the deponent was duly sworn by the officer and that the deposition is a true record of the deponent's testimony. The officer must then securely seal the deposition, together with two copies thereof, in an envelope and must personally deliver or mail the same by certified or registered mail to the administrative law judge or Indian probate judge. (h) Use of depositions. (1) A deposition ordered and taken in accordance with the provisions of this section may be used in a hearing if the administrative law judge or Indian probate judge finds that: (i) The witness is absent; (ii) The witness's presence cannot be readily obtained; (iii) The evidence is otherwise admissible; and (iv) Circumstances make it desirable in the interest of fairness to allow the deposition to be used. (2) If the interested party on whose application a deposition was taken refuses to offer the deposition, or any part thereof, in evidence, any other interested party or the administrative law judge or Indian probate judge may introduce the deposition or any portion thereof on which he or she wishes to rely.
Title 43: Public Lands: Interior
PART 4—DEPARTMENT HEARINGS AND APPEALS PROCEDURES
Subpart D—Rules Applicable in Indian Affairs Hearings and Appeals
Depositions, Discovery, and Prehearing Conference
§ 4.221 Depositions.
