Current through Rules and Regulations filed through March 20, 2024
(1) Any time during
the course of a proceeding, the Hearing Officer may, in the Hearing Officer's
discretion, order that the testimony of a witness be taken by deposition or on
written questions. Application to take a deposition in lieu of personal
appearance at the hearing shall be made by motion filed with the Clerk and
served upon all parties. Such motion shall state the name and address of the
witness, the time when, the place where, and the subject matter about which the
witness would be deposed, the relevance of such testimony, and the specific
reason why the witness cannot, or will not, appear to testify at the
hearing.
(2) In the exercise of the
Hearing Officer's discretion in deciding whether to order testimony by
deposition, the Hearing Officer may consider, among other factors:
(a) Whether requiring the appearance of a
witness subject to subpoena would endanger the witness's health or work an
undue hardship;
(b) Whether a
showing has been made that a non-resident potential witness, who is not subject
to subpoena in this State and is willing to appear voluntarily to be deposed in
the jurisdiction of the witness's residence, would be subject to being
compelled to appear and be deposed under any law in the jurisdiction of the
witness's residence (e.g., a Uniform Foreign Depositions Act); or
(c) Whether ordering the taking of testimony
by deposition will result in an undue burden on any other party, an undue delay
in the proceeding, or any injury to other parties from the delay.
(3) If the Hearing Officer orders
testimony by deposition, the Hearing Officer may specify whether the scope of
examination upon deposition should be limited in any way.
(4) Procedures for oral depositions to secure
testimony shall be as follows:
(a) Examination
and cross-examination of a deponent shall proceed under the same rules of
evidence applicable to hearings under the Act and these Rules. Each deponent
shall be duly sworn by an officer authorized to administer oaths by the laws of
the United States or the place where the examination is held, and the
deponent's testimony shall be recorded and transcribed. Any objections made at
the time of the deposition to the qualifications of the officer taking the
deposition, to the manner of the taking of the deposition, to the evidence
presented, to the conduct of any party, or any other objection to the
proceedings shall be recorded and included in the transcript. Evidence objected
to shall be taken subject to the objection.
(b) Any error or irregularity in the notice
of taking testimony by deposition shall be deemed waived unless written
objection thereto is filed with the Clerk and served upon all parties prior to
the deposition. Any objection relating to the qualifications of the officer
before whom the deposition is to be taken shall be deemed waived unless made
before the deposition begins or as soon thereafter as the alleged lack of
qualification becomes known or could be discovered in the exercise of
reasonable diligence.
(c) Any
objection to the competency of a witness or to the competency, relevancy, or
materiality of testimony is not waived by failure to make such objection prior
to or during the deposition unless the ground of the objection is one that
might have been obviated or removed if presented prior to or during the
deposition. Any error or irregularity occurring during the taking of the
deposition in administering the oath or affirmation, the manner of the taking
of the deposition, the form of questions or the answers thereto, the conduct of
any party, or any error of a kind that might be obviated, removed or cured if
timely raised, shall be deemed waived unless reasonable objection thereto is
made at the deposition.
(d) Any
error or irregularity in the manner in which the testimony is transcribed or
the deposition is prepared, certified, transmitted, filed or otherwise dealt
with by the person taking the deposition shall be deemed waived unless a motion
to strike all or a part of the said deposition is made with reasonable
promptness after such error or irregularity is, or in the exercise of
reasonable diligence should have been, ascertained.
(e) The deposition shall be transcribed,
certified by the officer taking the same, and filed with the Clerk. Any party
who contends that the transcript does not truly or fully disclose what
transpired at the deposition shall file a notice with the Clerk specifying any
alleged errors and omissions within ten (10) days of the filing of the
deposition. If the parties are unable to agree concerning the alleged errors
and omissions, the Hearing Officer shall set the matter down for hearing with
notice to all parties and shall resolve the differences to make the record
accurately conform to the truth.
(f) Documents and things produced for
inspection during the examination of the witness shall, upon the request of a
party, be marked for identification and annexed to, and returned with, the
deposition, and may be inspected and copied by any party. Copies may be
substituted for originals if each party is given an opportunity to compare the
proffered copy with the original to verify its correctness.
(5) Application to take testimony
by written questions shall be made and considered in the same manner as
prescribed for depositions in paragraphs (1), (2) and (3) of this Rule. If the
Hearing Officer orders the taking of testimony on written questions, each
written question shall be answered separately and fully in writing under oath,
unless objected to, in which event the reasons for objection shall be stated in
lieu of an answer. The answers shall be signed by the person making them, and
any objections shall be signed by the attorney making them.
(6) Subject to appropriate rulings on
objections, a deposition or written questions and answers shall be received in
evidence as if the testimony contained therein had been given by the witness
before the Hearing Officer.
(7)
Whenever used in this Rule, the word "witness" shall be construed, where
appropriate, to include parties.
O.C.G.A. Secs.
10-5-10, 10-5-16, 10-5-70, 10-5-71, 10-5-73, 10-5-74, 50-13-13.
