Last Update: 8/29/14 (Transmittal I-2-119)
A. Scheduling a Deposition
To facilitate obtaining a deposition, the hearing office (HO) staff will contact the deponent by telephone, if possible, to determine an appropriate time and place for the deposition proceedings. HO staff will document any contact by placing a report of contact (ROC) in the administrative record.
Depositions may be taken before or after an administrative law judge (ALJ) hearing, as deemed necessary by the ALJ.
B. Notice of the Deposition
The ALJ must send the deponent written notice of the time and place of the deposition proceedings at least 20 days in advance, with copies to the claimant and the representative. The ALJ will include in or attach to the notice the following information:
A statement of the purpose of the deposition;
Any additional information the ALJ deems necessary for the deponent to prepare for the proceedings; and
A statement about how the ALJ will record the testimony, such as audio, video teleconferencing (VTC), or stenography. The party taking the deposition will bear the cost of the recording.
If the ALJ issues a subpoena for the person to be examined or the production of documents (see Hearing, Appeals and Litigation Law (HALLEX) manual I-2-5-78), the requested information must be attached to or included in the notice. See HALLEX I-2-5-80. HO staff will place copies of the notice in the claim(s) file. For a sample notice, see HALLEX I-2-6-90.
C. Claimant Objects to the Taking of the Deposition
If the claimant or appointed representative, if any, objects to the taking of the deposition, or to the proposed method for recording the deposition, the objections must be made at least ten (10) days prior to the date of the deposition. The ALJ must rule on the objection in writing, mail the ruling to the claimant or representative, and make the ruling an exhibit in the administrative record.
If the claimant or appointed representative, if any, does not object until the scheduled date of the deposition, see HALLEX I-2-6-22 F below.
D. Deponent Does Not Appear for Deposition
If a deponent fails to appear for a deposition, the HO staff will telephone the deponent for an explanation. If the deponent and the ALJ are available on another date, and the ALJ is reasonably certain that the deponent will appear, the HO staff will send a second notice following the procedures in HALLEX I-2-6-22 A and B above. HO staff will document any contact by placing a ROC in the claim(s) file.
If the ALJ determines that the deposition is material to the issues to be decided, the ALJ may issue a subpoena to compel the deponent to appear. See HALLEX I-2-5-78.
E. Conducting the Deposition
The ALJ will take all testimony under oath or affirmation and record the deposition proceedings in the same manner as hearing proceedings. For more information on administering an oath or affirmation, see HALLEX I-2-6-54. The ALJ may take deposition testimony in person, via VTC, or by telephone. The ALJ must, on the record:
Identify the case and all persons present;
State the purpose of the deposition;
Identify the date, time, and place of the deposition; and
Identify the name of the deponent.
If the length of the deposition requires the use of multiple recording mediums (for example, more than one tape), the ALJ will repeat the above items at the beginning of each recording.
Claimants and representatives have the same rights during deposition proceedings that they have during hearing proceedings. The claimant and representative may appear at deposition proceedings to question the deponent or to submit written questions for the ALJ to consider asking the deponent. An ALJ will not grant a deponent's request to distort his or her image or voice (in order to conceal the deponent's identity).
At the conclusion of the deposition, the ALJ will state on the record that the deposition is complete.
F. Objections and Examination
The ALJ will proceed with examination of the deponent as would normally be permitted at a hearing. The ALJ will note any objections made at the time of deposition on the record and will either rule on the objections on the record at the hearing or after the deposition in a separate order. Subject to the ALJ's ruling, objections will not prevent the taking of evidence. Rather, the ALJ will take evidence, subject to objections, and note the objection on the record.
G. Preparing the Deposition Transcript
The HO staff will prepare a verbatim transcript of the deposition proceedings in duplicate, numbering all pages, except the first, in the center at the top. HO staff will include in the transcript:
An identifying fact sheet (see HALLEX I-2-6-93);
The text of the deposition; and
The transcriber's certification.
H. Proffering the Deposition Transcript
The ALJ will mark the deposition transcript and any associated documents as exhibits and will proffer the deposition transcript and any associated documents to the claimant or representative consistent with proffer procedures. See HALLEX I-2-6-91 for a sample exhibit list and HALLEX I-2-7-30 for proffer procedures. HO staff will mark a copy of the proffer letter as an exhibit in the administrative record.
I. Claimant Objects to Admitting the Deposition into Evidence
If the claimant or the representative objects to the ALJ admitting the deposition transcript and associated documents into the record as evidence, the ALJ must rule on the objections in writing or on the record at the hearing. If the ALJ issues a written ruling, a copy of the ruling will be made an exhibit to the administrative record and a copy of the ruling will be sent to the claimant or representative.