FRCP Rule 28 Depositions Guide

Who May Take Depositions in the United States

Under Rule 28(a), depositions within the United States must be taken before an officer authorized to administer oaths by federal law or by the law of the state where the deposition is taken, or before a person appointed by the court. In practice, this means the deposition is almost always administered by a professional court reporter who is a notary public or who holds a certification that qualifies as an officer under state law.

Every state has its own licensing and certification framework for court reporters and notaries. In most states, a notary public has the authority to administer oaths, which satisfies Rule 28(a)'s requirement. Professional court reporters typically hold either a notary commission or a reporter certification that specifically authorizes them to administer oaths in deposition settings.

Courts may also appoint a specific person to take depositions under Rule 28(a)(1)(B), which is used when parties cannot agree on an officer or when special circumstances require court-designated supervision. This is uncommon in domestic litigation but occasionally arises in high-conflict cases.

Remote depositions taken by video conference still require compliance with Rule 28. The officer administering the oath must be qualified under Rule 28(a) regardless of how the deposition is conducted technologically. When the witness is in one location, the attorney in another, and the reporter in a third, the question of which state's law governs the reporter's qualifications can become complex.

Depositions in Foreign Countries Under Rule 28(b)

Taking depositions outside the United States introduces an additional layer of procedural complexity. Rule 28(b) provides several alternatives for how depositions may be taken in foreign countries, and choosing the right method depends on the country involved, whether a treaty applies, and the time and cost constraints of the litigation.

The first option under Rule 28(b)(1) is the most common in practice: taking the deposition by stipulation under Rule 29. When both parties agree on the person to administer the deposition and the procedures to be followed, the deposition may be taken before any person who is willing to serve as the officer. This is effectively the parties contracting around the usual requirements, which courts generally allow for foreign depositions where strict application of the rules would be impractical.

Rule 28(b)(1)(B) allows depositions before a person commissioned by the court to administer oaths. When the parties cannot agree on a stipulated procedure, a party can move the court to commission a specific person — often a U.S. consul, an attorney admitted in the foreign jurisdiction, or another qualified individual — to administer the deposition.

Rule 28(b)(1)(C) allows depositions under a letter of request, also called letters rogatory. This is the formal diplomatic/judicial assistance channel where the U.S. court formally requests that the foreign court compel and supervise the taking of testimony. Letters rogatory are slow (often taking many months) and expensive, and they operate under the foreign court's rules rather than FRCP rules. But in countries with strict blocking statutes that prohibit evidence-gathering for foreign courts without judicial authorization, letters rogatory may be the only permissible option.

An important consideration: the Hague Evidence Convention provides an alternative framework for taking evidence internationally between signatory countries. When both the United States and the country where the deposition will be taken are Hague Convention signatories, the Convention's procedures may apply and must be analyzed alongside Rule 28(b). Some countries mandate exclusive use of Hague Convention procedures for U.S. discovery requests.

Disqualification Under Rule 28(c)

Rule 28(c) contains an absolute prohibition: no deposition may be taken before a person who is a relative or employee or attorney of any party, or who is financially interested in the action. This disqualification rule exists to ensure that the officer administering the oath is truly neutral and has no stake in how the testimony comes out.

The most important practical consequence of Rule 28(c): a party's attorney cannot serve as the officer taking the deposition. The attorney for the examining party is obviously not the officer — they are the one asking questions. But if a situation arose where the attorney attempted to both conduct the examination and serve as the administering officer, that would violate Rule 28(c).

The financial interest disqualification also catches court reporters who have been promised a percentage of litigation proceeds, reporters who own shares in a litigation funding entity involved in the case, or reporters who have any other financial stake in the outcome. In practice, professional court reporting services manage this through their standard business practices, but counsel should confirm neutrality when using any non-standard officer arrangements.

Depositions taken before a disqualified officer are potentially voidable. A party who objects to the officer's qualification must raise the objection before the deposition begins or as soon as the disqualifying fact becomes known. Waiting until after the deposition to challenge the officer's qualifications — especially if the testimony was unfavorable — is generally treated as a waiver of the objection.

Practical Administration Issues

Beyond the formal qualification requirements, Rule 28 raises practical questions about deposition administration that arise frequently in modern practice. Remote depositions by video conference have become standard since the COVID-19 pandemic. Courts have generally accepted that the officer may administer the oath remotely, but specific court orders or local rules may require that the witness be in the physical presence of the officer for the oath.

Stenographic versus non-stenographic recording creates additional Rule 28 questions. Under Rule 30(b)(3), depositions may be recorded by audio or video rather than stenographically. When non-stenographic recording is used, the deposition notice must specify the method. The officer requirements under Rule 28 still apply regardless of the recording method chosen.

Court reporters' professional obligations also interact with Rule 28. Most professional reporters are bound by their own ethical codes that address conflicts of interest, confidentiality, and accurate transcription. These obligations run parallel to and reinforce Rule 28(c)'s disqualification requirements. When selecting a court reporting service for sensitive depositions, confirm that the service has procedures for identifying and disclosing potential conflicts before the deposition begins.

Common Rule 28 Mistakes

• ✗Not checking reporter qualifications for depositions in other states: When you travel to depose a witness in a different state, verify that your reporting service has an officer qualified under that state's law, not just your home state.
• ✗Underestimating the complexity of foreign depositions: Foreign depositions require early planning because letters rogatory can take months and the Hague Convention procedures have their own timelines. Do not schedule foreign depositions for the close of discovery without having started the process well in advance.
• ✗Failing to confirm remote officer compliance: For video depositions, confirm whether the court's local rules require the officer to be physically present with the witness, or whether a fully remote oath administration is permitted.
• ✗Ignoring officer conflicts until after the deposition: If you discover that the reporting officer has a potential conflict under Rule 28(c), raise it before the deposition starts. Post-deposition challenges to officer qualification are almost always treated as waived.

Frequently Asked Questions About Rule 28