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(a) Authorization of Audio-Visual Depositions. By leave of court upon motion with notice and an opportunity to be heard in opposition, or by stipulation of all parties, a party taking an oral deposition may have the testimony recorded by audio-visual means by complying with the provisions of this rule. Except as otherwise provided by this rule, the rules governing the practice and procedure in depositions and discovery shall apply. At the taking of any such deposition, unless the parties otherwise stipulate, or the court for good cause otherwise orders, there shall also be prepared a simultaneous stenographic record of the deposition.
(b) Notice. Except by leave of court, granted after notice and opportunity to be heard in opposition, a notice for the taking of an audio-visual deposition shall not be served sooner than six (6) months after the action has been commenced.
Every notice for the taking of an audio-visual deposition and the subpoena for attendance at that deposition shall state that it is to be recorded by audio-visual means and the name and address of the person whose deposition is to be taken. If the operator is an employee of the attorney taking the deposition, the notice shall so indicate.
(c) Procedure. The party taking the audio-visual deposition shall be responsible for assuring that the necessary equipment for making an audio-visual recording of the deposition is present at the time the deposition is taken.
The following procedure shall be observed in recording an audio-visual deposition:
(1) Opening of Deposition. The deposition shall begin with an oral or written statement on camera which includes:
(i) the operator's name and business address;
(ii) the name and address of the operator's employer;
(iii) the date, time and place of the deposition;
(iv) the caption of the case;
(v) the name of the witness-deponent;
(vi) the name of the party on whose behalf the deposition is being taken; and
(vii) any stipulation by the parties.
The opening statement, if oral, shall be made by the officer before whom the deposition is to be taken, unless counsel agree that one of counsel will make the statement.
(2) Counsel. Counsel shall identify themselves on camera by stating their names, their addresses, and the names of the parties or persons for whom they appear at the deposition, and nothing more.
(3) Oath. The officer before whom the deposition is taken shall then identify himself and swear or affirm the witness on camera.
(4) Multiple Units. When the length of the deposition requires the use of more than one recording unit, the end of each recording unit and the beginning of each succeeding recording unit shall be announced on camera by the operator.
(5) Closing of Deposition. At the conclusion of the deposition, a statement shall be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulation made by counsel concerning the custody of the audio-visual recording and exhibits and other pertinent matters.
(6) Index. The deposition shall be timed by a digital clock on camera which shall show continually each hour, minute and second of each recording unit of the deposition, or otherwise suitably indexed by a time generator. The date(s) on which the deposition is taken shall be shown.
(7) Objections. An objection shall be made as in the case of depositions taken solely by stenographic means.
(8) Interruption of Recording. No party shall be entitled to cause the operator to interrupt or halt the recording of the audio-visual deposition without the assent of all other parties present.
(9) Submission to Witness; Changes; Signing. Unless the parties have stipulated that a simultaneous stenographic record of the deposition not be prepared, the provisions of Rule 30(e) shall apply to the stenographic record of the deposition. Except upon order of the court and upon such terms as may be provided, the witness shall have no right to examine and view the audio-visual recording.
(10) Certification. The officer before whom the audio-visual deposition is taken shall attach to the original audio-visual recording a certificate stating that the witness was sworn or affirmed by him and that the audio-visual recording is a true record of the testimony given by the witness.
(d) Recording Officer; Use of Camera; Copies. The officer before whom an audio-visual deposition is taken shall be subject to the provisions enumerated in Rule 28(a)-(c).
During the taking of the audio-visual deposition, the officer shall assure that the audio-visual tape records the witness in a standard fashion at all times during the deposition, unless all counsel agree otherwise, or unless on motion before the court, the court directs otherwise. In no event shall the officer use, or permit the use of, audio-visual tape camera techniques to vary the view which is being recorded for presentation in the courtroom unless agreed upon or ordered by the court as recited above. As an exception to the foregoing, the officer shall, at the request of the attorney questioning the witness, cause a close-up view of a deposition exhibit or visual aid to be taken while the witness is being questioned concerning the exhibit.
Upon the request of any of the parties, the officer shall provide, at the cost of the party making the request, a copy of the deposition in the form of a videotape or other form of audio-visual recording, an audio recording, or a written transcription.
(e) Custody; Filing; Notice of Filing. Unless the parties have otherwise stipulated, the officer shall take custody of each recording unit upon its completion and shall retain custody of all completed units throughout the deposition. When a deposition is to be completed on another day, the officer shall also take custody of any uncompleted recording unit during the interval. Upon completion of a deposition, unless the parties have otherwise stipulated, the original audio-visual recording and the typewritten transcript of the deposition shall be filed forthwith by the officer with the clerk of the trial court in accordance with subdivision (1) of Rule 30(f) and notice of its filing shall be given as provided in subdivision (3) of that rule.
(f) Inspection and Release of Audio-Visual Recordings. Except upon order of the court and upon such terms as may be provided, the audio-visual recordings on file with the clerk of the court in which the action is pending shall not be available for inspection or viewing after their filing and prior to their use at the trial of the case or their disposition in accordance with this rule. The clerk may release the audio-visual recording to the officer taking the deposition, without an order of court, for the purpose of preparing a copy at the request of a party as provided in subdivisions (a) and (d) of this rule.
(g) Rulings on Objections; Editing of Recording. If any party has any objections to the audio-visual deposition which would otherwise be made at trial, pursuant to Rule 32(b), such objections shall if practicable, be submitted to the trial judge prior to commencement of the trial or hearing for the purpose of obtaining rulings on such objections. An audio copy of the sound track or the transcript may be submitted in lieu of the audio-visual recording for this purpose. For the purpose of ruling on the objections, the trial judge may view the entire audio-visual recording, or view only those parts of the audio-visual recording pertinent to the objections made, or he may listen to an audio-tape recording submitted in lieu of the audio-visual recording, or he may read the transcript. The trial judge shall, if practicable, rule on the objections prior to the commencement of the trial or hearing and shall return the recording to the party who took the audio-visual deposition, with notice to all parties of his rulings and of his instructions as to editing. The editing shall reflect the rulings of the trial judge and shall then remove all references to the objections. After making a copy of the audio-visual recording, the officer shall cause said copy to be edited in accordance with the court's instructions. He shall then cause both the original audio-visual recording and the edited version thereof, each clearly identified, to be returned to the trial judge for use during the trial or hearing. The original audio-visual recording shall be preserved intact and unaltered.
(h) Transcribing of Audio Portion; Marking for Identification. At a trial or hearing, that part of the audio portion of an audio-visual deposition which is offered in evidence and admitted, or which is excluded on objection, shall be transcribed in the same manner as the testimony of other witnesses. Both the original unedited audio-visual recording and the edited version shall be marked for identification.
(i) Use of Audio-Visual Deposition and Responsibility for Assuring Necessary Equipment at Time of Use. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.
The party desiring to use the audio-visual deposition for any purpose shall be responsible for assuring that the necessary equipment for playing the audio-visual recording back is available when the audio-visual deposition is to be used. When an audio-visual deposition is used during a hearing, a trial, or any other court proceeding, the party first using such audio-visual deposition in whole or in part shall assure the availability of the same or comparable videotape playback equipment to any other party for such other party's use in further showing such audio-visual deposition during the hearing, the trial, or other court proceeding or at any rehearing, recess, or continuation thereof.
(j) Discrepancy Between Audio-Visual Deposition and Stenographic Deposition. Upon the claim of a party that a discrepancy exists between the audio-visual deposition and the stenographic deposition, the trial judge shall determine: (i) whether such discrepancy reasonably appears; and (ii) whether the relevant part of the audio-visual deposition is intelligible. If the relevant part of the audio-visual deposition is not intelligible, the stenographic deposition controls. If the relevant part of the audio-visual deposition is intelligible and the trial judge rules that a discrepancy reasonably appears, the jury, in a jury action, shall determine from the audio-visual deposition the deponent's testimony. The trial judge, in his discretion, may permit the jury to be aided in its determination by the stenographic deposition.
(k) Evidence by Audio-Visual Recording.
(1) Authorization of Audio-Visual Testimony or Other Evidence. Upon motion with notice and an opportunity to be heard, or by stipulation of all parties approved by the court, or upon the court's motion, the court may order, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, that all or part of the testimony, and such other evidence as may be appropriate, may be presented at trial by audio-visual means. The provisions of Rule 30A shall govern such audio-visual recordings.
(2) Introduction as Evidence. Notwithstanding Rule 30A(i) or Rule 32(a)(3), but subject to rulings on objections pursuant to Rule 30A(k)(3), any party may introduce any such audio-visual recording, that has been authorized under Rule 30A(k)(1), at trial if the court finds its introduction to be in the interest of justice.
(3) Objections. Before such audio-visual recording is admitted at trial, the trial judge shall rule upon any objection to any portion thereof and the recording shall be edited to reflect the rulings. The objections shall be presented to the trial judge and the editing to reflect the rulings shall be accomplished, each in accordance with the provisions of Rule 30A(g).
(4) Part of the Record; Not an Exhibit. Any portion of the audio-visual recording so introduced shall be part of the record, and subject to the provisions of Rule 30A(h), but not an exhibit.
(l) Costs. The reasonable expense of recording, editing, and using an audio-visual deposition may be taxed as costs, pursuant to the provisions of Rule 54(e).
(m) Audio-Visual Depositions of Treating Physicians and Expert Witnesses for Use at Trial.
(1) Authorization and Definitions. Unless the court upon motion orders otherwise, any party intending to call a treating physician or expert witness at trial as that party's own witness may take the oral deposition of any such treating physician or expert witness by audio-visual means for the purpose of its being used as evidence at trial in lieu of oral testimony. Such depositions shall be known as "audio-visual expert witness depositions for trial." This rule 30A(m) does not apply to another party's treating physician or expert, discovery from whom is subject to the provisions of Rule 26(b)(4)(A) or 26(b)(4)(B). A "treating physician" is a physician who has provided medical treatment to a party or other person involved in the lawsuit, and who will be questioned about such treatment and matters related thereto. An "expert witness" is a person qualified as an expert by knowledge, skill, experience, training, or education to testify in the form of an opinion or otherwise.
(2) Timing, Curriculum Vitae, and Report. Except by leave of court, a notice for the taking of an audio-visual expert witness deposition for trial shall not be served (i) sooner than six (6) months after the action has been commenced, and (ii) until thirty (30) days after a written report of that witness has been furnished to all parties. Such report shall contain a curriculum vitae of that witness, shall cover the subjects described in Rule 26(b)(4)(A)(i), and, in the case of a treating physician, a description of the treatment and its costs. Any party may move for further discovery of that witness, to take place prior to the audio-visual expert witness deposition for trial, in accordance with Rule 26(b)(4)(A)(ii).
(3) Notice; Opposition. In addition to the requirements of rule 30A(b), every notice for the taking of an audio-visual expert witness deposition for trial shall state that it is to be recorded by audio-visual means with the purpose of its being used as evidence at trial in lieu of oral testimony. Any motion in opposition to the taking of an audio-visual expert witness deposition for trial must be filed within fourteen (14) days of receipt of the notice or on or before the specified time for taking of the audio-visual expert witness deposition for trial, if such time is less than fourteen (14) days from receipt of the notice. The audio-visual expert witness deposition shall not occur until the court rules on the motion opposing the deposition.
(4) Ruling on Objections; Editing of Recording. When an audio-visual expert witness deposition for trial is taken, all evidential objections shall, to the extent practicable, be made during the course of the deposition. If any party has made objections during the course of the audio-visual expert witness deposition for trial, or has any objections to such deposition which would otherwise be made at trial, pursuant to Rule 32(b), such objections shall be filed with the trial judge or a motion judge, if the trial judge has not yet been designated, no later than twenty-one (21) days before the commencement of the trial. Objections not so submitted shall be deemed waived, except to the extent that events at the trial, which could not have reasonably been foreseen by the objecting party, necessitate an objection at trial. The nonobjecting party shall file a response to the submissions by the objecting party within fourteen (14) days of the receipt of the objecting party's submissions. Failure to respond to an objection shall constitute a waiver with respect thereto. The party making the objection shall be responsible for providing the judge with a stenographic record of the deposition, unless it is already on file at the court, and, if the judge requests, with the audio-visual recording or an audio copy of the sound track. For the purpose of ruling on the objections, the judge may utilize the entire stenographic record, audio-visual recording, or audio-tape recording, or those portions that are pertinent to the objections made. The judge shall rule on the objections prior to the commencement of trial or hearing and give notice to all parties of the rulings and instructions as to editing. The editing shall reflect the rulings of the judge and shall remove all references to the objections. The officer shall cause a copy of the audio-visual recording to be edited in accordance with the court's instructions. The officer shall then cause copies of the edited version thereof to be delivered to the parties who ordered them, and to the court, if so instructed by the court. The stenographic record, and the original audio-visual recording and the edited version thereof, if any, shall be preserved intact and unaltered.
(5) Use at Trial. Unless the court upon motion orders otherwise, an audio-visual expert witness deposition for trial may be used by any party for any purpose and under any circumstances in which a stenographic deposition may be used and, in addition, may be used at trial in lieu of oral testimony whether or not such witness is available to testify.
(6) Applicability of Rule 30A(a)-(l). Except as altered by Rule 30(A)(m), the provisions of rule 30A(a)-(l) shall apply to audio-visual expert witness depositions for trial.
Adopted Dec. 16, 1980, effective Jan. 1, 1981. Amended July 20, 1984, effective Jan. 1, 1985; Oct. 23, 1989, effective Jan. 1, 1990.
Reporter's Notes (1996) With the merger of the District Court civil rules into the Mass.R.Civ.P., Rule 30A of the Mass.R.Civ.P. governing audio-visual depositions is made applicable to District Court proceedings.
(1989) These amendments accompany the simultaneous amendment adding Mass.R.Civ.P. 30A(m), which creates a new category of videotape depositions called "audio-visual expert depositions for trial." See Reporter's Notes to Proposed Amendment Adding Mass.R.Civ.P. 30A(m). That amendment will make audio-visual depositions a more frequent occurrence. In considering the addition of Rule 30A(m), it made sense to make some clarifications for all audio-visual depositions. The provisions of Rule 30A(a)-(l) apply to audio-visual expert depositions for trial except when altered by Rule 30A(m). Mass.R.Civ.P. 30A(m)(6).
The amendment to Mass.R.Civ.P. 30A(c) gives the party taking any audio-visual deposition the responsibility for assuring that the necessary equipment is available at the time the deposition is taken. The amendment to Mass.R.Civ.P. 30A(i) requires the party first using an audio-visual deposition in whole or in part to be responsible for providing the necessary play-back equipment for the use of all parties at such hearing, trial, or any other court proceeding or "at any rehearing, recess, or continuation thereof.".
The amendment to Mass.R.Civ.P. 30A(d) adds to the recording officer's duties the obligation to assure "that the audio-visual tape records the witness in a standard fashion at all times during the deposition, unless all counsel agree otherwise, or unless on motion before the court, the court directs otherwise." The purpose is to make the audio-visual deposition as close as possible to what the fact-finder would see and hear if the witness were present in the courtroom.
Mass.R.Civ.P. 30A(c), (d), and (i) are otherwise left intact, except for appropriate changes to the titles in Rules 30(d) and (i) which reflect the additions.
The amendments borrow in part from a similar rule in South Carolina (S.C.Cir.Ct.Prac.R. 99C.(4) and 99K.).
Rule 30A deals generally with "Audio-visual Depositions and Audio-visual Evidence." This amendment adds a new set of provisions dealing specifically with "Audio-Visual Depositions of Treating Physicians and Expert Witnesses for Use at Trial.".
Delays in court have been a substantial problem in the Commonwealth. Many lawyers and judges believe that a major reason for the seeking and granting of continuances in the past has been the unavailability of expert witnesses and treating physicians on the day set for trial. Unlike Rule 30A(k)(1), which requires prior court approval for the use of audio-visual testimony at the trial, the amendment authorizes such use with respect to a party's own treating physicians and expert witnesses or neutral treating physicians and expert witnesses whom that party intends to call at trial as that party's own witness, regardless of whether the witness is available to testify in person, unless the court orders otherwise. Rule 30A(m)(5). The goals are to eliminate a major reason for continuances; to facilitate intelligent settlement, since the lawyers will know in advance that the testimony of such expert or treating physician will be available for the trial; and to aid physicians and other experts in more predictably scheduling and efficiently utilizing their time.
The amendment does not apply to "another party's treating physician or expert, discovery from whom is subject to the provisions of Rule 26(b)(4)(A) or 26(b)(4)(B)." Rule 30(m)(1).
The amendment covers both treating physicians and experts, because there may be occasions when a treating physician's testimony relates only to observable facts and not expert opinion. The amendment's inclusion of the treating physician, whether or not the physician's testimony is technically that of an expert, should both help to eliminate disputes over the boundary between fact and opinion and to meet the other goals of the amendment, such as eliminating a major reason for continuances.
Because such audio-visual testimony is in lieu of live testimony, the amendment contains a number of protections for the opposing party, e.g., notice in advance that the audio-visual deposition is for the "purpose of its being used as evidence at trial in lieu of oral testimony" (Rule 30A(m)(3)); the requirement that a curriculum vitae and a report covering "the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion," and, in the case of a treating physician, providing a description of the treatment and its costs, be furnished to all parties at least thirty days before such audio-visual deposition (Rule 30A(m)(2)); the ability to move for a discovery deposition prior to the audio-visual expert witness deposition (Rule 30A(m)(2)); the ability to move to oppose the deposition before it is taken, with the deposition stayed until the court rules on the motion (Rule 30A(m)(3)); and detailed provisions for the ruling on objections and the editing of the audio-visual recording (Rule 30A(m)(4)).
Rule 30A(m)(5) permits a party either to use live testimony of the treating physician or expert, or the audio-visual expert witness deposition for trial, but not both. However, if a party chooses to use the live testimony of the witness, the opponent may still cross-examine and use portions of the audio-visual expert witness deposition for trial for appropriate purposes.
Except where this amendment changes the audio-visual deposition rules for this specific type of deposition for use at trial, the remaining provisions of Rule 30A apply. Rule 30A(m)(6). Consequently, all of Rule 30A applies to audio-visual expert witness depositions for trial, except the first sentence of Rule 30A(a) (requiring prior leave of court or stipulation of all parties to authorize the deposition), the provisions of Rule 30A(g) (Rulings on Objections, Editing of Recording), and Rule 30A(k)(1)(2)(3) (Evidence by Audio-Visual Recording). Rule 30A(k)(4), making any portion of an audio-visual recording introduced at the trial part of the record, but not an exhibit, is applicable to audio-visual expert witness depositions for trial. Although Rule 30A(b) (Notice) is applicable to Rule 30A(m) depositions, Rule 30A(m)(2) adds an additional requirement related to the timing of such deposition (requirement of written report) and Rule 30A(m) requires additional information in the notice for the taking of such deposition.
There may be occasions when a party becomes aware of the need for an audio-visual deposition of a treating physician or expert witness at a time too close to trial to permit compliance with all of the provisions of Rule 30A(m). The discretionary motions under Rule 30A(a) and 30A(k)(1), and the court's authorization under Rule 30A(k)(2), remain available to meet such emergency situations.
The amendment borrows in part from a similar rule in New Jersey (N.J.Civ.Prac.R. 4:14-9) and from a paragraph of the South Carolina videotaped deposition rule (S.C.Cir.Ct.Prac.R. 99 I.). The definition of "expert witness" (30A(m)(1)) is derived from a portion of Fed.R.Evid. 702 and Proposed Mass.R.Evid. 702.
(1984) This amendment permits a court to authorize in advance of trial, or at the trial, the use of an audio-visual recording as testimony or other evidence "in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court." The major purpose of this rule is to permit judges to prevent the delay of trials which often occurs in order to accommodate the schedule of witnesses, particularly experts. Rule 30A(k)(3) makes the obtaining of rulings on objections and the editing of the audio-visual recordings subject to the provisions of 30A(g). Rule 30A(k)(4) provides that any portion of the audio-visual recording that is introduced "shall be part of the record, but not an exhibit." This is so testimony by audio-visual recording is not accorded more weight than live testimony. Rule 30A(k)(4) makes any portion of the audio-visual recording that is introduced subject to the transcription and marking provisions of Rule 30A(h).
Even without a Rule 30A(k)(1) order, one may still be able to use an audio-visual deposition at trial pursuant to the provisions of Rule 32(a). (See Rule 30A(i).).
