RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION (a) When

RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION

(a) When Depositions May Be Taken. After commencement of the

action any party may take the testimony of any person, including a party, by

deposition upon oral examination. Leave of court, granted with or without notice,

must be obtained only if the plaintiff seeks to take a deposition within 30 days after

service of the process and initial pleading upon any defendant, except that leave is

not required (1) if a defendant has served a notice of taking deposition or otherwise

sought discovery, or (2) if special notice is given as provided in subdivision (b)(2)

of this rule. The attendance of witnesses may be compelled by subpoena as

provided in rule 1.410. The deposition of a person confined in prison may be taken

only by leave of court on such terms as the court prescribes.

(b) Notice; Method of Taking; Production at Deposition.

(1) A party desiring to take the deposition of any person upon oral

examination shall give reasonable notice in writing to every other party to the

action. The notice shall state the time and place for taking the deposition and the

name and address of each person to be examined, if known, and, if the name is not

known, a general description sufficient to identify the person or the particular class

or group to which the person belongs. If a subpoena duces tecum is to be served on

the person to be examined, the designation of the materials to be produced under

the subpoena shall be attached to or included in the notice.

(2) Leave of court is not required for the taking of a deposition by

plaintiff if the notice states that the person to be examined is about to go out of the

state and will be unavailable for examination unless a deposition is taken before

expiration of the 30-day period under subdivision (a). If a party shows that when

served with notice under this subdivision that party was unable through the

exercise of diligence to obtain counsel to represent the party at the taking of the

deposition, the deposition may not be used against that party.

(3) For cause shown the court may enlarge or shorten the time for

taking the deposition.

(4) Any deposition may be audiovisually recorded by videotape

without leave of the court or stipulation of the parties, provided the deposition is

taken in accordance with this subdivision.

(A) Notice. A party intending to videotapeaudiovisually

record a deposition shall state in the notice that the deposition is to be

videotapedaudiovisually recorded and shall give the name and address of the

operator. Any subpoena served on the person to be examined shall state the method

or methods for recording the testimony.

(B) StenographerCourt Reporter. VideotapedAudiovisually

recorded depositions shall also be recorded stenographicallytranscribed, unless all

parties agree otherwise.

before whom it is taken shall, on camera: (i) identify the style of the action, (ii)

state the date, and (iii) swear the witness.

(D) Custody of TapeRecording and Copies. The attorney for

the party requesting the videotapingaudiovisual recording of the deposition shall

take custody of and be responsible for the safeguarding of the videotapeaudiovisual

recording, shall permit the viewing of it by the opposing party, and, if requested,

shall provide a copy of the videotapeaudiovisual recording at the expense of the

party requesting the copy.

(E) Cost of VideotapedAudiovisually Recorded Depositions.

The party requesting the videotapingaudiovisual recording shall bear the initial

cost of videotapingrecording.

(5) The notice to a party deponent may be accompanied by a

request made in compliance with rule 1.350 for the production of documents and

tangible things at the taking of the deposition. The procedure of rule 1.350 shall

apply to the request. Rule 1.351 provides the exclusive procedure for obtaining

documents or things by subpoena from nonparties without deposing the custodian

or other person in possession of the documents.

(6) In the notice a party may name as the deponent a public or

private corporation, a partnership or association, or a governmental agency, and

designate with reasonable particularity the matters on which examination is

requested. The organization so named shall designate one or more officers,

directors, or managing agents, or other persons who consent to do so, to testify on

its behalf and may state the matters on which each person designated will testify.

The persons so designated shall testify about matters known or reasonably

available to the organization. This subdivision does not preclude taking a

deposition by any other procedure authorized in these rules.

(7) On motion the court may order that the testimony at a

deposition be taken by telephone. The order may prescribe the manner in which the

deposition will be taken. A party may also arrange for a stenographic transcription

at that party’s own initial expense.

(8) Any minor subpoenaed for testimony shall have the right to be

accompanied by a parent or guardian at all times during the taking of testimony

notwithstanding the invocation of the rule of sequestration of section 90.616,

Florida Statutes, except upon a showing that the presence of a parent or guardian is

likely to have a material, negative impact on the credibility or accuracy of the

minor’s testimony, or that the interests of the parent or guardian are in actual or

potential conflict with the interests of the minor.

Oath; Objections. Examination and cross-examination of witnesses may proceed

as permitted at the trial. The officer before whom the deposition is to be taken shall

put the witness on oath and shall personally, or by someone acting under the

officer’s direction and in the officer’s presence, record the testimony of the

witness, except that when a deposition is being taken by telephone, the witness

shall be sworn by a person present with the witness who is qualified to administer

an oath in that location. The testimony shall be taken stenographicallytranscribed

or recorded by any other means ordered in accordance with subdivision (b)(4) of

this rule. If requested by one of the parties, the testimony shall be transcribed at the

initial cost of the requesting party and prompt notice of the request shall be given

to all other parties. All objections made at time of the examination to the

qualifications of the officer taking the deposition, the manner of taking it, the

evidence presented, or the conduct of any party, and any other objection to the

proceedings shall be noted by the officer upon the deposition. Any objection

during a deposition shall be stated concisely and in a nonargumentative and

nonsuggestive manner. A party may instruct a deponent not to answer only when

necessary to preserve a privilege, to enforce a limitation on evidence directed by

the court, or to present a motion under subdivision (d). Otherwise, evidence

objected to shall be taken subject to the objections. Instead of participating in the

oral examination, parties may serve written questions in a sealed envelope on the

party taking the deposition and that party shall transmit them to the officer, who

shall propound them to the witness and record the answers verbatim.

(d) Motion to Terminate or Limit Examination. At any time during the

taking of the deposition, on motion of a party or of the deponent and upon a

showing that the examination is being conducted in bad faith or in such manner as

unreasonably to annoy, embarrass, or oppress the deponent or party, or that

objection and instruction to a deponent not to answer are being made in violation

of rule 1.310(c), the court in which the action is pending or the circuit court where

the deposition is being taken may order the officer conducting the examination to

cease forthwith from taking the deposition or may limit the scope and manner of

the taking of the deposition under rule 1.280(c). If the order terminates the

examination, it shall be resumed thereafter only upon the order of the court in

which the action is pending. Upon demand of any party or the deponent, the taking

of the deposition shall be suspended for the time necessary to make a motion for an

order. The provisions of rule 1.380(a) apply to the award of expenses incurred in

relation to the motion.

(e) Witness Review. If the testimony is transcribed, the transcript shall be

furnished to the witness for examination and shall be read to or by the witness

unless the examination and reading are waived by the witness and by the parties.

Any changes in form or substance that the witness wants to make shall be listed in

writing by the officer with a statement of the reasons given by the witness for

making the changes. The changes shall be attached to the transcript. It shall then be

signed by the witness unless the parties waived the signing or the witness is ill,

cannot be found, or refuses to sign. If the transcript is not signed by the witness

within a reasonable time after it is furnished to the witness, the officer shall sign

the transcript and state on the transcript the waiver, illness, absence of the witness,

or refusal to sign with any reasons given therefor. The deposition may then be used

as fully as though signed unless the court holds that the reasons given for the

refusal to sign require rejection of the deposition wholly or partly, on motion under

rule 1.330(d)(4).

(f) Filing; Exhibits.

(1) If the deposition is transcribed, the officer shall certify on each

copy of the deposition that the witness was duly sworn by the officer and that the

deposition is a true record of the testimony given by the witness. Documents and

things produced for inspection during the examination of the witness shall be

marked for identification and annexed to and returned with the deposition upon the

request of a party, and may be inspected and copied by any party, except that the

person producing the materials may substitute copies to be marked for

identification if that person affords to all parties fair opportunity to verify the

copies by comparison with the originals. If the person producing the materials

requests their return, the officer shall mark them, give each party an opportunity to

inspect and copy them, and return them to the person producing them and the

materials may then be used in the same manner as if annexed to and returned with

the deposition.

(2) Upon payment of reasonable charges therefor the officer shall

furnish a copy of the deposition to any party or to the deponent.

(3) A copy of a deposition may be filed only under the following

circumstances:

(A) It may be filed in compliance with Florida Rule of

Judicial Administration 2.425 and rule 1.280(f) by a party or the witness when the

contents of the deposition must be considered by the court on any matter pending

before the court. Prompt notice of the filing of the deposition shall be given to all

parties unless notice is waived. A party filing the deposition shall furnish a copy of

the deposition or the part being filed to other parties unless the party already has a

copy.

(B) If the court determines that a deposition previously taken

is necessary for the decision of a matter pending before the court, the court may

order that a copy be filed by any party at the initial cost of the party, and the filing

party shall comply with rules 2.425 and 1.280(f).

(g) Obtaining Copies. A party or witness who does not have a copy of

the deposition may obtain it from the officer taking the deposition unless the court

orders otherwise. If the deposition is obtained from a person other than the officer,

the reasonable cost of reproducing the copies shall be paid to the person by the

requesting party or witness.

(h) Failure to Attend or to Serve Subpoena; Expenses.

(1) If the party giving the notice of the taking of a deposition fails

to attend and proceed therewith and another party attends in person or by attorney

pursuant to the notice, the court may order the party giving the notice to pay to the

other party the reasonable expenses incurred by the other party and the other

party’s attorney in attending, including reasonable attorneys’ fees.

(2) If the party giving the notice of the taking of a deposition of a

witness fails to serve a subpoena upon the witness and the witness because of the

failure does not attend and if another party attends in person or by attorney because

that other party expects the deposition of that witness to be taken, the court may

order the party giving the notice to pay to the other party the reasonable expenses

incurred by that other party and that other party’s attorney in attending, including

reasonable attorneys’ fees.

Committee Notes

1972 Amendment. Derived from Federal Rule of Civil Procedure 30 as

amended in 1970. Subdivision (a) is derived from rule 1.280(a); subdivision (b)

from rule 1.310(a) with additional matter added; the first sentence of subdivision

rule.

1976 Amendment. Subdivision (b)(4) has been amended to allow the taking

of a videotaped deposition as a matter of right. Provisions for the taxation of costs

and the entry of a standard order are included as well. This new amendment allows

the contemporaneous stenographic transcription of a videotaped deposition.

1988 Amendment. The amendments to subdivision (b)(4) are to provide for

depositions by videotape as a matter of right.

The notice provision is to ensure that specific notice is given that the

deposition will be videotaped and to disclose the identity of the operator. It was

decided not to make special provision for a number of days’ notice.

The requirement that a stenographer be present (who is also the person likely

to be swearing the deponent) is to ensure the availability of a transcript (although

not required). The transcript would be a tool to ensure the accuracy of the

videotape and thus eliminate the need to establish other procedures aimed at the

same objective (like time clocks in the picture and the like). This does not mean

that a transcript must be made. As at ordinary depositions, this would be up to the

litigants.

Technical videotaping procedures were not included. It is anticipated that

technical problems may be addressed by the court on motions to quash or motions

for protective orders.

Subdivision (c) has been amended to accommodate the taking of depositions

by telephone. The amendment requires the deponent to be sworn by a person

authorized to administer oaths in the deponent’s location and who is present with

the deponent.

1992 Amendment. Subdivision (b)(4)(D) is amended to clarify an

ambiguity in whether the cost of the videotape copy is to be borne by the party

requesting the videotaping or by the party requesting the copy. The amendment

requires the party requesting the copy to bear the cost of the copy.

1996 Amendment. Subdivision (c) is amended to state the existing law,

which authorizes attorneys to instruct deponents not to answer questions only in

specific situations. This amendment is derived from Federal Rule of Civil

Procedure 30(d) as amended in 1993.

2010 Amendment. Subdivision (b)(5) is amended to clarify that the

procedure set forth in rule 1.351 must be followed when requesting or receiving

documents or things without testimony, from nonparties pursuant to a subpoena.

The amendment is intended to prevent the use of rules 1.310 and 1.410 to request

documents from nonparties pursuant to a subpoena without giving the opposing

party the opportunity to object to the subpoena before it is served on the nonparty

as required by rule 1.351.

2011 Amendment. A reference to Florida Rule of Judicial Administration

2.425 and rule 1.280(f) is added to require persons filing discovery materials with

the court to make sure that good cause exists prior to filing discovery materials and

that certain specific personal information is redacted.

Court Commentary

1984 Amendment. Subdivision (b)(7) is added to authorize deposition by

telephone, with provision for any party to have a stenographic transcription at that

party’s own initial expense.

Subdivision (d) is changed to permit any party to terminate the deposition,

not just the objecting party.

Subdivision (e) is changed to eliminate the confusing requirement that a

transcript be submitted to the witness. The term has been construed as requiring the

court reporter to travel, if necessary, to the witness, and creates a problem when a

witness is deposed in Florida and thereafter leaves the state before signing. The

change is intended to permit the parties and the court reporter to handle such

situations on an ad hoc basis as is most appropriate.

Subdivision (f) is the committee’s action in response to the petition seeking

amendment to rule 1.310(f) filed in the Supreme Court Case No. 62,699.

Subdivision (f) is changed to clarify the need for furnishing copies when a

deposition, or part of it, is properly filed, to authorize the court to require a

deposition to be both transcribed and filed, and to specify that a party who does not

obtain a copy of the deposition may get it from the court reporter unless ordered

otherwise by the court. This eliminates the present requirement of furnishing a

copy of the deposition, or material part of it, to a person who already has a copy in

subdivision (f)(3)(A).

Subdivision (f)(3)(B) broadens the authority of the court to require the filing

of a deposition that has been taken, but not transcribed.

Subdivision (g) requires a party to obtain a copy of the deposition from the

court reporter unless the court orders otherwise. Generally, the court should not

order a party who has a copy of the deposition to furnish it to someone who has

neglected to obtain it when the deposition was transcribed. The person should

obtain it from the court reporter unless there is a good reason why it cannot be

obtained from the reporter.