generally allocates such costs, expenses, fees, and charges to the party taking the deposition. Although the moving party may request that they be allocated in some other manner (see paragraph (d)(2)(F)), the Court ordinarily will not regard any such request with favor.

Under paragraph (g)(2), the costs, expenses, fees, and charges relating to the deposition specifically include a reasonable fee for the expert witness. Such a fee will typically exceed the fee to which the witness would otherwise be entitled under Rule 148(a). Although the fee is to be determined with regard to the expert's usual and customary charge, it must be reasonable in amount. Whether or not the fee is computed on an hourly basis, allowance shall be made for the time spent attending the deposition (including the time spent traveling to and from the place of deposition) and for the time spent preparing for the deposition. The latter shall not, however, include any part of the time spent in formulating the opinion in respect of which the witness' expert testimony is relevant to the issue in dispute.

Certain provisions of Rule 74, as well as many of the procedural Rules applicable to depositions to preserve evidence under Title VIII, have been made applicable to depositions under Rule 76, as set forth in paragraph (h).

Rule 76 is effective as of July 1, 1990.

TITLE VIII

DEPOSITIONS

RULE 80. GENERAL PROVISIONS1

(a) General: On complying with the applicable requirements, depositions to perpetuate evidence may be taken in a pending case before trial (Rule 81), or in anticipation of commencing a case in this Court (Rule 82), or in connection with the trial (Rule 83). Depositions under this Title may be taken only for the purpose of making testimony or any document or thing available as evidence in the circumstances herein authorized by the applicable Rules. Depositions for discovery purposes may be taken only in accordance with Rules 74, 75, and 76.

(b) Other Applicable Rules: For Rules concerned with the timing and frequency of depositions, supplementation of answers, protective orders, effect of evasive or incomplete answers or responses, and sanctions and enforcement action, see Title X. For provisions relating to tender of fees

'The amendments are effective as of July 1, 1990.

and other amounts to the witness to be deposed, see Rule 148(b).

Note

Paragraph (a) of Rule 80 is amended to reflect the addition of Rule 76, relating to the deposition of expert witnesses.

Paragraph (b) of Rule 80 is amended to include a cross-reference to Rule 148(b), relating to tender of fees and other amounts to the witness to be deposed.

The amendments of Rule 80 are effective as of July 1, 1990.

RULE 81. DEPOSITIONS IN PENDING CASE1

(a) Depositions to Perpetuate Testimony: A party to a case pending in the Court, who desires to perpetuate testimony or to preserve any document or thing, shall file an application pursuant to these Rules for an order of the Court authorizing such party to take a deposition for such purpose. Such depositions shall be taken only where there is a substantial risk that the person or document or thing involved will not be available at the trial of the case, and shall relate only to testimony or document or thing which is not privileged and is material to a matter in controversy. (b) The Application: (1) Content of Application: The application to take a deposition pursuant to paragraph (a) of this Rule shall be signed by the party seeking the deposition or such party's counsel, and shall show the following:

(A) the names and addresses of the persons to be examined;

(B) the reasons for deposing those persons rather than waiting to call them as witnesses at the trial;

(C) the substance of the testimony which the party expects to elicit from each of those persons;

(D) a statement showing how the proposed testimony or document or thing is material to a matter in controversy;

(E) a statement describing any books, papers, documents, or tangible things to be produced at the deposition by the persons to be examined;

(F) the time and place proposed for the deposition;

'The amendments are generally effective as of July 1, 1990. However, the amendments of paragraph (e)(2) setting forth an additional means by which a foreign deposition may be taken are effective as of January 12, 1990.

(G) the officer before whom the deposition is to be taken;

(H) the date on which the petition was filed with the Court, and whether the pleadings have been closed and the case placed on a trial calendar;

(I) any provision desired with respect to payment of expenses, fees, and charges relating to the deposition (see paragraph (g) of this Rule, and Rule 103); and

(J) if the applicant proposes to videotape the deposition, then the application shall so state, and shall show the name and address of the videotape operator and of the operator's employer. (The videotape operator and the officer before whom the deposition is to be taken may be the same person. See subparagraph (2) of paragraph (j) of this Rule.)

The application shall also have annexed to it a copy of the questions to be propounded, if the deposition is to be taken on written questions. For the form of application to take a deposition, see Appendix I.

(2) Filing and Disposition of Application: The application may be filed with the Court at any time after the case is docketed in the Court, but must be filed at least 45 days prior to the date set for the trial of the case. The application and a conformed copy thereof, together with an additional conformed copy for each additional docket number involved, shall be filed with the Clerk of the Court. The applicant shall serve a copy of the application on each of the other parties to the case, as well as on such other persons who are to be examined pursuant to the application, and shall file with the Clerk a certificate showing such service. Such other parties or persons shall file their objections or other response, with the same number of copies and with a certificate of service thereof on the other parties and such other persons, within 15 days after such service of the application. A hearing on the application will be held only if directed by the Court. Unless the Court shall determine otherwise for good cause shown, an application to take a deposition will not be regarded as sufficient ground for granting a continuance from a date or place of trial theretofore set. If the Court approves the taking of a deposition, then it will issue an order which will include in

its terms the name of the person to be examined, the time and place of the deposition, and the officer before whom it is to be taken. If the deposition is to be videotaped, then the Court's order will so state.

(c) Designation of Person to Testify: The party seeking to take a deposition may name, as the deponent in the application, a public or private corporation or a partnership or association or governmental agency, and shall 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 testify on its behalf, and may set forth, for each person designated, the matters on which such person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization.

(d) Use of Stipulation: The parties or their counsel may execute and file a stipulation to take a deposition by agreement instead of filing an application as hereinabove provided. Such a stipulation shall be filed with the Court in duplicate, and shall contain the same information as is required in items (A), (F), (G), (I), and (J) of Rule 81(b)(1), but shall not require the approval or an order of the Court unless the effect is to delay the trial of the case. A deposition taken pursuant to a stipulation shall in all respects conform to the requirements of these Rules.

(e) Person Before Whom Deposition Taken: (1) Domestic Depositions: Within the United States or a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States (see Code Section 7622) or of the place where the examination is held, or before a person appointed by the Court. A person so appointed has power to administer oaths and to take such testimony.

1(2) Foreign Depositions: In a foreign country, depositions may be taken (A) before a person authorized to administer oaths or affirmations in the place in which the examination

'The amendments are generally effective as of July 1, 1990. However, the amendments setting forth an additional means by which a foreign deposition may be taken are effective as of January 12, 1990.

is held, either by the law thereof or by the law of the United States, or (B) before a person commissioned by the Court, and a person so commissioned shall have the power, by virtue of the commission, to administer any necessary oath and take testimony, or (C) pursuant to a letter rogatory or a letter of request issued in accordance with the provisions of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. A commission, a letter rogatory, or a letter of request shall be issued on application and notice and on terms that are just and appropriate. The party seeking to take a foreign deposition shall contact the United States Department of State to ascertain any requirements imposed by it or by the foreign country in which the deposition is to be taken, including any required foreign language translations and any fees or costs, and shall submit to the Court, along with the application, any such foreign language translations, fees, costs, or other materials required. It is not requisite to the issuance of a commission, a letter rogatory, or a letter of request that the taking of the deposition in any other manner be impracticable or inconvenient; and both a commission and a letter rogatory, or both a commission and a letter of request, may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in [here name the country]." A letter of request is addressed to the central authority of the requested state. The model recommended for letters of request is set forth in the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444. Evidence obtained by deposition or in response to a letter rogatory or a letter of request need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions within the United States under these Rules.

(3) Disqualification for Interest: No deposition shall be taken before a person who is a relative or employee or counsel of any party, or is a relative or employee or