Just. Ct. R. Civ. proc. 123

As amended through December 3, 2024

Rule 123 - Depositions

a.Definition; before whom a deposition may be taken. A deposition is an opportunity to question another party or a witness while the other party or witness is under oath. A deposition is taken out of court before an officer authorized to administer oaths, without a judge present. A court clerk or a certified reporter in Arizona may administer oaths. An out-of-state deposition may be taken before an officer who is authorized to administer an oath by the law or by a court of that state. A deposition may be taken in a foreign country before an officer authorized to administer an oath by the law of the place where the examination is held.

Questions and answers at a deposition are recorded by a certified reporter, or by another method that is agreed to by the parties. A deposition may not be recorded by a party, by a person who is a relative, a friend, or an employee of a party, by an attorney for a party or an employee or relative of an attorney for a party, or by a person who is financially interested in the lawsuit. [ARCP 28(a)-(c)]

b.When a deposition may be taken. A party may take a deposition of another party thirty (30) days after the party being deposed was served under Rule 113. A party may take a deposition of a witness sixty (60) days after an opposing party has appeared in the lawsuit pursuant to Rule 114(e). A party may take no more than five (5) total hours of depositions of all fact witnesses.[ARCP 26.2(f), 30(a)]

c.Notice of deposition; deposition of a representative of a public or private entity. At least ten (10) days before the date of the deposition, a notice of deposition must be provided to ("served on") (1) the person who will be deposed and (2) the other parties to the lawsuit. The notice of deposition must state the name of the person who will be deposed; the location of the deposition; the date and starting time of the deposition; and the name of the person who will record the deposition and the method of recording. When a party deposes another party, a notice of deposition must also include the following language:

"The Justice Court Rules of Civil Procedure allow a party to take the deposition of another party. A deposition is an opportunity to ask questions to another person while the person who is deposed is under oath. A deposition takes place out of court and a judge is not present. A deposition is recorded by a certified reporter or by another method agreed to by the parties. A single deposition may not take longer than four (4) hours, unless agreed to by the parties or unless ordered by the court.

"If you fail to appear for your deposition, the party who sent this notice may file a motion asking that the court order you to appear. If the court orders you to appear for your deposition, the court may also order that you pay the expenses, including attorneys' fees, incurred by the other party as a result of your failure to appear. If you fail to appear for your deposition after the court has ordered you to appear, the court may impose additional penalties against you, including an order that you may not introduce evidence of some or all or your claims or defenses in this lawsuit; if you are a plaintiff, that your lawsuit be dismissed; or if you are a defendant, that your answer be stricken and that judgment be entered against you."

A notice of deposition may be served on a public or private entity, such as a governmental body or agency, a corporation, or a partnership, whether or not the entity is a party to the lawsuit, and the notice may describe with reasonable specificity the topics that will be asked about during the deposition. The entity must then designate one or more of its officers, directors, or employees who have knowledge of the specified topics and who will appear at the deposition and testify concerning those subjects. [ARCP 30(b), (d)]

d.Procedure. The attendance of a witness who is not a party at a deposition may be required by serving the witness with a subpoena, as provided in Rule 137(b). A party may be required to produce documents at a deposition pursuant to Rule 125. The party requesting the deposition must pay the cost of recording, unless the court orders or the parties agree otherwise.

The deposition must start within thirty (30) minutes of the time provided in the notice, and any party not present within thirty (30) minutes of the time provided in the notice of deposition waives any objection to the deposition starting without the party's presence. The officer specified in section (a) of this rule must administer the oath to the person who is deposed before the start of testimony. If a deposition is recorded by means other than a certified reporter, the person operating the recording equipment must be sworn to fully and fairly record the proceeding. The person or persons recording the deposition will note the starting and ending times of the deposition, and the times of any breaks during the deposition.

Any objections at a deposition, including objections to a specific question, will also be recorded, and evidence is taken subject to the objections. Objections to the form of a question, or to the responsiveness of an answer, must be concise, and must not suggest answers to the person being deposed. Continuous or unwarranted off-the-record conferences with the person being deposed, following questions and before answers, are not permitted, and this conduct is subject to penalties under Rule 127(d).

The certified reporter or other person recording the deposition must identify and maintain any exhibits used at the deposition, although copies of original exhibits may be substituted by agreement of the parties. Before concluding the deposition, the certified reporter or other recorder must ask the witness if the witness would like an opportunity to review the transcript or recording to affirm its accuracy, or if the witness waives that right. A witness who asks to review the transcript or recording will have thirty (30) days after notification that the transcript or recording is available to review and to submit a statement concerning any inaccuracy of the transcript or recording, and a statement submitted by the witness to the certified reporter or other recorder within that time must be included with the transcript or recording of the deposition.

Upon motion, the court may impose an appropriate penalty under Rule 127(d) against any party, attorney, or witness who engages in unreasonable, groundless, abusive or obstructionist conduct at a deposition, or against a party or attorney who takes a deposition in bad faith, or to annoy or embarrass the person being deposed. [ARCP 30(b)-(d), 32(d)]

e.Use of depositions in court proceedings. Testimony given at a deposition may be used in court proceedings as far as the testimony is admissible under the rules of evidence (see Rule 137(a)) and as though the witness was present and testifying in court. The evidence may be used against any party who appeared at the deposition, or who had reasonable notice of the deposition, or who had an opportunity and similar motive to develop testimony as a party who was present. Substitution of a party under Rule 105 does not affect the right to use a deposition that was previously taken. A party may object to the admission of deposition testimony for any reason that would require the exclusion of evidence if the witness was present and testifying in court. If only part of a deposition is offered as evidence, the judge may require other portions to be introduced that in fairness should also be considered at the trial or hearing. The use of a deposition transcript may be supplemented with audio or video files that were recorded at the same time as the transcript. A deposition may be used in court proceedings even if the person who was deposed is available to testify in court; but this rule does not limit the right of a party to call the deposed individual to testify in the courtroom in person. [ARCP 32(a)-(c)]

Just. Ct. R. Civ. proc. 123

Adopted Aug. 30, 2012, effective 1/1/2013; amended Dec. 12, 2019, effective 1/1/2020; amended Dec. 8, 2021, effective 1/1/2022.