rule 4:12 persons before whom depositions may...

RULE 4:12 PERSONS BEFORE WHOM DEPOSITIONSMAY BE TAKEN; AUTHORITY

4:12-1 Within the StateWithin this State, depositions shall be taken before a person authorized by

the laws of this State to administer oaths.Note: Source—R.R. 4:18-1.

¶ 4:12-1.01 Bochet’s Practice Tips to Rule 4:12-1

t Warning: N.J. Ct. R. 4:12 allows depositions to be conducted before a personauthorized to administer oaths in New Jersey. However, effective January 11, 2007, onlypersons certified as court reporters may practice shorthand reporting in court proceedings,including depositions, in New Jersey. NJS 45:15B-9, 45:15B-10.

4:12-2 Without the state but within the United StatesOutside this State but within the United States or within a territory or

insular possession subject to the dominion of the United States, depositionsshall be taken before a person authorized to administer oaths by the laws ofthis State, of the United States or of the place where the examination is held.

Note: Source—R.R. 4:18-2.


t Warning: Counsel must ensure that the local reporter before whom a deposition istaken is authorized to administer oaths under the laws of the state where the proceedingis conducted.

107 NJ COURT RULES ¶ 4:12-2.01

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4:12-3 In foreign countriesUnless an international treaty or convention otherwise requires, in a

foreign country depositions shall be taken (a) on notice before a secretary ofembassy or legation, consul general, consul, vice consul, or consular agent ofthe United States, or (b) before such person or officer as may be appointedby commission or under letters rogatory. A commission or letters rogatoryshall be issued on application and notice, and on such terms and with suchdirections as are appropriate. Officers may be designated in notices orcommissions either by name or descriptive title and letters rogatory may beaddressed “To the Appropriate Judicial Authority in (here name thecountry)”.

Note: Source—R.R. 4:18-3. Amended July 22, 1983 to be effective September12, 1983; amended July 13, 1994 to be effective September 1, 1994.


z Strategic Point: When taking a deposition in a foreign country, Counsel shoulddetermine whether there is a treaty or convention governing the procedures for that nation.Counsel should then attempt to schedule the deposition according to the availability of anofficer of the United States Department of State to administer the oath. If no such officeris available, an application must be made pursuant to N.J. Ct. R. 4:11-5 for the court toissue a commission or letter rogatory (letter of request). Many countries will not compela person to appear without a commission or letter rogatory issued by a judicial authority.

t Warning: Counsel new to the area of international law would be well-served to seekadvice from an experienced practitioner as to how to proceed in this murky field.

¶ 4:12-3.02 Bochet’s Annotations to Rule 4:12-3

Husa v. Laboratoires Servier SA, 326 N.J. Super. 150, 740 A.2d 1092 (App. Div. 1999).In a personal injury suit against a French drug manufacturer, defendant manufacturerresisted depositions of three residents of France connected to the defendant unless theConvention on the Taking of Evidence Abroad in Civil or Commercial Matters (28 USCS§ 1781) was applied. The trial court refused to apply the Convention. The AppellateDivision reversed. The court recognized that Convention procedures were optional, butheld that the procedures should be used whenever possible unless they will require anunjust result or a prejudicial delay.

State by Kugler v. Schaedel, 120 N.J. Super. 21, 293 A.2d 221 (App. Div. 1972). In anaction by the State to obtain assets of decedent’s estate by escheat, the court ordered letters

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rogatory to the appropriate authority in the Soviet Union. These letters rogatory consistedof questions submitted by counsel for the parties to two witnesses residing in that country.The trial judge demanded that the hearing occur before the responses were received. TheAppellate Division reversed ordering the trial judge to consider the answers in the lettersrogatory which had been received following trial, saying that the delay over whichclaimant had no control should not prejudice its ability to protects its rights.

For additional cases, see N.J. Ct. R. 4:12-3 at www.lexis.com.

4:12-4 Disqualification for interestNo deposition shall be taken before or recorded by a person, whether or

not a certified shorthand reporter, who is a relative, employee or attorney ofa party or a relative or employee of such attorney or is financially interestedin the action. Any regulations of the State Board of Shorthand Reportersrespecting disqualification of certified shorthand reporters shall apply to allpersons taking or recording a deposition.

Note: Source—R.R. 4:18-4; amended July 17, 1975 to be effective September8, 1975; amended July 12, 2002 to be effective September 3, 2002.


t Warning: Pursuant to N.J. Admin. Code § 13:43-5.4, certified shorthand reporters aresubject to suspension or revocation of their certification for providing or arrangingservices where they are any of the following:

1. A party in the case;

2. A relative, agent or employee of a party;

3. A person with an interest in the outcome; or

4. A relative, agent or employee of anyone with a financial stake in the case.



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RULE 4:13 STIPULATIONS REGARDING DISCOVERYPROCEDURE

RULE 4:13 STIPULATIONS REGARDING DISCOVERYPROCEDURE

Unless the court orders otherwise, the parties may by written stipulation:

(a) Provide that depositions may be taken before any person, at anytime or place, upon any notice, and in any manner and when so taken maybe used like other depositions, and

(b) Modify the procedure provided by these rules for other methods ofdiscovery, except that stipulations extending the time provided in R. 4:17(interrogatories to parties) may be made only with the approval of thecourt.

Note: Source—R.R. 4:19. Former rule deleted and new R. 4:13 adopted July14, 1972 to be effective September 5, 1972.

¶ 4:13-0.01 Bochet’s Practice Tips to Rule 4:13

z Strategic Point: N.J. Ct. R. 4:13(a) permits counsel to waive the procedural nicetieswhich pertain to arranging and conducting depositions. Freely agreeing to stipulations toaccommodate fellow counsel is not just the excepting of formalities. It is professionalismat its best.

t Warning: The time limits pertaining to interrogatories provided in N.J. Ct. R. 4:17-1et seq. may not be altered by stipulation pursuant to N.J. Ct. R. 4:13. When an extensionof the time prescribed to propound or respond to interrogatories is needed, counsel shouldfile a consent order to extend time with the assigned judge, accompanied by a letteroutlining why an extension of time is needed. In the alternative, counsel may file a noticeof accompanied by an explanatory affidavit and proposed order. N.J. Ct. R. 1:6-2, 1:6-3,4:42-1.

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RULE 4:14 DEPOSITIONS UPON ORALEXAMINATION

4:14-1 When depositions may be takenExcept as otherwise provided by R. 4:14-9(a), 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 orwithout notice, must be obtained only if the plaintiff seeks to take adeposition prior to the expiration of 35 days after service of the summonsand complaint upon the defendant by any manner, except that leave is notrequired if the defendant has already served a notice of taking deposition orotherwise sought discovery. The attendance of witnesses may be compelledby subpoena as provided in R. 4:14-7. The deposition of a person confinedin prison may be taken only by leave of court on such terms as the courtprescribes.

Note: Source—R.R. 4:16-1. Former rule deleted and new R. 4:14-1 adoptedJuly 14, 1972 to be effective September 5, 1972 (formerly R. 4:10-1); amendedJuly 21, 1980 to be effective September 8, 1980; amended July 10, 1998 to beeffective September 1, 1998; amended July 5, 2000 to be effective September 5,2000.


t Warning: Though N.J. Ct. R. 4:14-1 does not set a specific time period within whichdepositions must be taken, counsel must be guided by the discovery end date of the casewhen scheduling depositions. See N.J. Ct. R. 4:24-1.

Exception: The deposition of an expert witness that counsel intends to use in lieu of trialtestimony may not be scheduled until 30 days after service upon all parties of that expert’sreport. N.J. Ct. R. 4:14-9(a).


Horon Holding Corp. v. McKenzie, 341 N.J. Super. 117, 775 A.2d 111 (App. Div. 2001).A motion to quash a discovery subpoena by an attorney for defendant judgment debtorwas denied by the trial court. Movant contended that questions concerning the current



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address of the defendant are protected by the attorney-client privilege. The AppellateDivision affirmed, finding that since movant was not counsel of record in the case, hisdeposition is permitted by N.J. Ct. R. 4:14-1. The court further held that objection to thedeposition due to attorney-client privilege is inappropriate, as the privilege could only beasserted on a question-by-question basis. Finally, the privilege does not attach when it isused to essentially commit a fraud on the court.

Kerr v. Able Sanitary & Envtl Servs., 295 N.J. Super. 147, 684 A.2d 961 (App. Div.1996). Plaintiff’s attorney moved to quash a subpoena served upon him by defendant inthis consumer fraud/professional negligence action. The defendant claimed that movanthad independent knowledge of relevant facts, basing that assertion on an interview givenby counsel to a reporter. The trial court refused to quash the subpoena. The AppellateDivision reversed, finding that while N.J. Ct. R 4:14-1 permits a deposition of adversecounsel, the discovery sought must be relevant. The party seeking the opposing counsel’sdeposition has the burden of demonstrating the need and propriety of taking thedeposition.

Berrie v. Berrie, 188 N.J. Super. 274, 457 A.2d 76 (Ch. Div. 1983). Plaintiff issued asubpoena for the deposition of his brother to discuss personal financial and businessinformation, allegedly relevant to the valuation of plaintiff’s assets in a matrimonial case.The court found though that the deposition of a non-party is permissible under N.J. Ct. R4:14-1, in this case, plaintiff’s need for the information is outweighed by the non-party’sright to keep personal finances private and his company’s right to protect the confiden-tiality of its business information. The subpoena was quashed.


4:14-2 Notice of examination; general requirements; deposition oforganization

(a) Notice. Except as otherwise provided by R. 4:14-9(b), a party desiringto take the deposition of any person upon oral examination shall give not lessthan 10 days notice in writing to every other party to the action. The noticeshall state the time and place for taking the deposition, which shall bereasonably convenient for all parties, and the name and address of eachperson to be examined, if known, and, if the name is not known a generaldescription sufficient to identify the person or the particular class or groupto which the person belongs. If a defendant fails to appear or answer in anycivil action within the time prescribed by these rules, depositions may betaken without notice to that defendant.

(b) Time. The court may for cause shown enlarge or shorten the time fortaking the deposition.

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(c) Organizations. A party may in the notice name as the deponent apublic or private corporation or a partnership or association or governmen-tal agency and designate with reasonable particularity the matters on whichexamination is requested. The organization so named shall designate one ormore officers, directors, or managing agents, or other persons who consentto testify on its behalf, and may set forth for each person designated thematters on which testimony will be given. The persons so designated shalltestify as to matters known or reasonably available to the organization.

(d) Production of Things. The notice to a party deponent may beaccompanied by a request made in compliance with and in accordance withthe procedure stated in R. 4:18-1 for the production of documents andtangible things at the taking of the deposition.

Note: Source—R.R. 4:20-1. Former rule deleted and new R. 4:14-2 adoptedJuly 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-1 and4:14-1); paragraph (a) amended July 21, 1980 to be effective September 8, 1980;paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994.


Exception: A deposition of an expert that counsel intends to use in lieu of trial testimonycannot be set less than 30 days after service of that expert’s report. N.J. Ct. R. 4:14-9(a).


In re Opinion 668 of the Advisory Comm. on Prof’l Ethics, 134 N.J. 294, 303, 633 A.2d959 (1993). In an Advisory Opinion by the Supreme Court addressing the issue of ex parteinterviews of corporate employees, the court cited N.J. R. of Prof’l Conduct 4.2 whichprohibits communication with a corporate adversary’s employees “entrusted with themanagement of the case in question, and employees whose conduct, in and of itself,establishes the organization’s liability.”

State v. Ciba-Geigy Corp., 247 N.J. Super. 314, 589 A.2d 180 (App. Div. 1991). In acriminal action against corporation, the defendant sought a protective order to prohibit exparte interviews of its employees by state investigators. Although it affirmed the denial ofthe defendant’s motion, the Appellate Division held that employees whose acts orstatements bind the corporation should not be interviewed. The court pointed to N.J. Ct.R 4:14-2(c) as the means by which corporations may designate such persons fordepositions.

Gero v. Cutler, 66 N.J. 443, 445, 332 A.2d 593 (1975) (proper method to object toinconvenience of time or place of deposition notice pursuant to N.J. Ct. R 4:14-2 is motionunder N.J. Ct. R. 4:10-3.)

D’Agostino v. Johnson & Johnson, 242 N.J. Super. 267, 576 A.2d 893 (App. Div. 1990)(parent corporation required to produce executives of wholly owned subsidiary fordepositions).




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4:14-3 Examination and cross-examination; record of examination;oath; objections

(a) Examination and Cross-Examination. Examination and cross-examination of deponents may proceed as permitted in the trial of actions inopen court, but the cross-examination need not be limited to the subjectmatter of the examination in chief.

(b) Oath; Record. The officer before whom the deposition is to be takenshall put the witness on oath and shall personally, or by some one actingunder the officer’s direction and in the officer’s presence, record thetestimony of the witness. The testimony shall be recorded and transcribed ona typewriter unless the parties agree otherwise.

(c) Objections. No objection shall be made during the taking of adeposition except those addressed to the form of a question or to assert aprivilege, a right to confidentiality or a limitation pursuant to a previouslyentered court order. The right to object on other grounds is preserved andmay be asserted at the time the deposition testimony is proffered at trial. Anobjection to the form of a question shall include a statement by the objectoras to why the form is objectionable so as to allow the interrogator to amendthe question. No objection shall be expressed in language that suggests ananswer to the deponent. Subject to R. 4:14-4, an attorney shall not instructa witness not to answer a question unless the basis of the objection isprivilege, a right to confidentiality or a limitation pursuant to a previouslyentered court order. All objections made at the time of the examination tothe qualifications of the officer taking the deposition or the person recordingit, or to the manner of taking it, or to the evidence presented, or to theconduct of any party, and any other objection to the proceedings, shall benoted by the officer upon the deposition. Evidential objections to a video-taped deposition of a treating physician or expert witness which is taken foruse in lieu of trial testimony shall be made and proceeded upon inaccordance with R. 4:14-9(f).

(d) No Adjournment. Except as otherwise provided by R. 4:14-4 and R.4:23-1(a) all depositions shall be taken continuously and without adjourn-ment unless the court otherwise orders or the parties and the deponentstipulate otherwise.

(e) Written Questions. In lieu of participating in an oral examination,parties may serve written questions in a sealed envelope on the party takingthe deposition and that party shall transmit them to the officer, who shallpropound them to the witness and record the answers verbatim.

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(f) Consultation with the Deponent. Once the deponent has been sworn,there shall be no communication between the deponent and counsel duringthe course of the deposition while testimony is being taken except withregard to the assertion of a claim of privilege, a right to confidentiality or alimitation pursuant to a previously entered court order.

Note: Source—R.R. 4:16-3, 4:20-3. Paragraphs (b), (d) and (e) amended July14, 1972 to be effective September 5, 1972 (paragraph (a) formerly R. 4:10-3);paragraph (c) amended July 21, 1980 to be effective September 8, 1980;paragraphs (b) and (e) amended July 13, 1994 to be effective September 1, 1994;paragraph (c) amended and paragraph (f) added June 28, 1996 to be effectiveSeptember 1, 1996.


z Strategic Point: N.J. Ct. R. 4:14-3(e) is infrequently used, although it should beconsidered in circumstances where the deponent will offer only minimal factual testimony.

t Warning: Counsel should make an application under N.J. Ct. R. 4:14-4 if confrontedwith a violation of the prohibition on consultation with the deponent. This notifies thecourt that sanctions may be appropriate.

s Timing: Although N.J. Ct. R. 4:14-3(d) requires that depositions continue day-to-dayuntil completion, common practice is for counsel to agree to adjourn at the end of the dayand reschedule the continuation for another time. Counsel should consult in advance as tothe anticipated time needed for the deposition and whether or not it will proceed onconsecutive days so that schedules can be accommodated. Disputes may be raised forjudicial determination pursuant to N.J. Ct. R. 4:14-4.

Exception: Objections during a videotaped deposition are not reserved for trial. Theymust be raised pursuant to N.J. Ct. R. 4:14-9(f).


Wolfe v. Malberg, 334 N.J. Super. 630, 760 A.2d 812 (App. Div. 2000). Duringdepositions in this medical malpractice case, plaintiff’s attorney repeatedly violated N.J.Ct. R 4:14-3(c) by improperly objecting to questions posed to his expert. The trial courtassessed substantial financial sanctions and dismissed the plaintiff’s case. The AppellateDivision reversed, holding that these drastic sanctions were inappropriate.

In re PSE&G Shareholder Litig., 320 N.J. Super. 112, 118, 726 A.2d 994 (Ch. Div.1998). Witnesses met with counsel for discussions during breaks in their depositions. Thissituation had been addressed with varying results in federal courts, but here, the Chancerydetermined that the propriety of a deponent’s consultation with counsel during breaks ina deposition should be determined on a case by case basis. The court found here thatdiscussions with counsel during breaks in the course of a day of testimony are improperunder N.J. Ct. R 4:14-3 but did allow consultation overnight.




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4:14-4 Motion or application to terminate or limit examination or forsanctions

At any time during the taking of the deposition, on formal motion ortelephone application to the court of a party or of the deponent and upon ashowing that the examination or any part thereof is being conducted ordefended in bad faith or in such manner as unreasonably to annoy,embarrass or oppress the deponent or party, or in violation of R. 4:14-3(c)or (f), the court may order the person conducting the examination to ceaseforthwith from taking the deposition, or may limit the scope and manner ofthe taking of the deposition as provided in R. 4:10-3. If the order madeterminates the examination, it shall be resumed thereafter only upon furtherorder of the court in which the action is pending. Upon demand of theobjecting party or deponent, the taking of the deposition shall be suspendedfor the time necessary to make a motion or telephone application for anorder. The provisions of R. 4:23-1(c) shall apply to the award of expensesincurred in making or defending against the motion or telephone applica-tion.

Note: Source—R.R. 4:20-4. Amended July 14, 1972 to be effective September5, 1972; amended June 28, 1996 to be effective September 1, 1996.


z Strategic Point: The rule addresses unreasonable conduct, including that prohibited inN.J. Ct. R. 4:14-3(c) (improper objections) and N.J. Ct. R. 4:14-3(f) (consultation with thedeponent). Counsel engaging in prohibited conduct may be exposed to sanctions pursuantto N.J. Ct. R. 4:23-1(c), including the attorneys’ fees and costs incurred in making ordefending a motion to terminate or limit the deposition.


K.S. v. ABC Prof’l Corp., 330 N.J. Super. 288, 749 A.2d 425 (App. Div. 2000). Duringdepositions taken in the course of a sexual harassment suit against a law firm, plaintiffsought to question firm members as to their own relationships and affairs with fellowemployees. Defendants sought a protective order, which was denied by the trial court. TheAppellate Division reversed, holding that the questioning was “not relevant to proof of thecharges actually made . . . [the] effect, if not [the] purpose, is to embarrass andhumiliate.”


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4:14-5 Submission to witness; changes; signingIf the officer at the taking of the deposition is a certified shorthand

reporter, the witness shall not sign the deposition. If the officer is not acertified shorthand reporter, then unless reading and signing of the deposi-tion are waived by stipulation of the parties, the officer shall request thedeponent to appear at a stated time for the purpose of reading and signingit. At that time or at such later time as the officer and witness agree upon, thedeposition shall be submitted to the witness for examination and shall beread to or by the witness, and any changes in form or substance which thewitness desires to make shall be entered upon the deposition by the officerwith a statement of the reasons given by the witness for making them. Thedeposition shall then be signed by the witness. If the witness fails to appearat the time stated or if the deposition is not signed by the witness, the officershall sign it and state on the record the fact of the witness’ failure or refusalto sign, together with the reason, if any, given therefor; and the depositionmay then be used as fully as though signed, unless on a motion to suppressunder R. 4:16-4(d) the court holds that the reasons given for the refusal tosign require rejection of the deposition in whole or in part.

Note: Source—R.R. 4:20-5. Amended July 14, 1972 to be effective September5, 1972; amended July 13, 1994 to be effective September 1, 1994.


Exception: N.J. Ct. R. 4:14-5, requiring a deponent to review and sign the depositiontranscript if it was not recorded by a certified shorthand reporter, will become moot onJanuary 11, 2007 when a statute becomes effective requiring all deposition officers to becertified. NJS 45:15B-9.


Beckwith v. Bethlehem Steel Corp., 185 N.J. Super. 50, 57, 447 A.2d 207 (Law Div.1982) (administration of oath is “critical factor” on issue of trustworthiness of proposedevidence).




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4:14-6 Certification and filing by officer; exhibits; copies(a) Certification and Filing. The officer shall certify on the deposition that

the witness was duly sworn and that the deposition is a true record of thetestimony. The officer shall then promptly file with the deputy clerk of theSuperior Court in the county of venue a statement captioned in the causesetting forth the date on which the deposition was taken, the name andaddress of the witness, and the name and address of the reporter from whoma transcript of the deposition may be obtained by payment of the prescribedfee. The reporter shall furnish the party taking the deposition with theoriginal and a copy thereof. Depositions shall not be filed unless the court soorders on its or a party’s motion. The original deposition shall, however, bemade available to the judge to whom any proceeding in the matter has beenassigned for disposition at the time of the hearing or as the judge mayotherwise request. Filed depositions shall be returned by the court to theparty taking the deposition after the termination of the action. A videotapeddeposition shall be sealed and filed in accordance with R. 4:14-9(d).

(b) Documentary Evidence. Documentary evidence exhibited before theofficer or exhibits proved or identified by the witness, may be annexed to andreturned with the deposition; or the officer shall, if requested by the partyproducing the documentary evidence or exhibit, mark it as an exhibit in theaction, and return it to the party offering the same, and the same shall bereceived in evidence as if annexed to and returned with the deposition.

(c) Copies. The party taking the deposition shall bear the cost thereof andof promptly furnishing a copy of the transcript to the witness deposed, if anadverse party, and if not, to any adverse party. The copy so furnished shallbe made available to all other parties for their inspection and copying.Copies of videotaped depositions shall be made and furnished in accordancewith R. 4:14-9(d).

Note: Source—R.R. 4:20-6(a) (b) (c). Paragraph (c) amended July 14, 1972 tobe effective September 5, 1972; paragraphs (a) (c) amended July 21, 1980 to beeffective September 8, 1980; paragraph (a) amended July 15, 1982 to be effectiveSeptember 13, 1982; paragraphs (a) and (c) amended July 13, 1994 to be effectiveSeptember 1, 1994; paragraph (a) amended June 28, 1996 to be effectiveSeptember 1, 1996.


z Strategic Point: Attachment of documentary evidence to the transcript is not

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mandatory under N.J. Ct. R. 4:14-6(b). The best practice is to retain the original exhibitand have copies affixed to the transcript for easy reference.

Exception: N.J. Ct. R. 4:14-6(a) refers to the sealing and filing of videotaped depositions,pursuant to N.J. Ct. R. 4:14-9(d). This is no longer required under N.J. Ct. R. 4:19-9(d),which states that the tapes are simply delivered to the party arranging the deposition.


Rizman v. Gourvitz, 321 N.J. Super. 1, 728 A.2d 229 (App. Div. 1998). A court reportingfirm sued a lawyer for the cost of the transcript of the deposition of his client. Thedeposition was taken as part of an action in which the client was not a party. The attorneycontended he was entitled to a transcript under N.J. Ct. R. 4:14-6(c). Reversing the trialjudge, the Appellative Division held that the rule does not apply to witnesses who are notparties. Further, the “attorney ordering the transcript undertakes to pay for it and may not,except in the clearest case, avoid the payment obligation by raising the responsibilities ofothers, whether founded on the rule or another source.”

Wolfe v. Malberg, 344 N.J. Super. 630, 639 (App. Div. 2000) (dismissal not propersanction for attorney’s misconduct at deposition).


4:14-7 Subpoena for taking depositions(a) Form; Contents; Scope. The attendance of a witness at the taking of

depositions may be compelled by subpoena, issued and served as prescribedby R. 1:9 insofar as applicable, and subject to the protective provisions of R.1:9-2 and R. 4:10-3. The subpoena may command the person to whom it isdirected to produce designated books, papers, documents or other objectswhich constitute or contain evidence relating to all matters within the scopeof examination permitted by R. 4:10-2.

(b) Time and Place of Examination by Subpoena; Witness’ Expenses.

(1) Fact Witnesses. A resident of this State subpoenaed for the taking ofa deposition may be required to attend an examination only at areasonably convenient time and only (A) in the county of this State inwhich he or she resides, is employed or transacts business in person; or(B) at a location in New Jersey within 20 miles from the witness’sresidence or place of business; or (C) at such other convenient place fixedby court order. A nonresident of this State subpoenaed within this Statemay be required to attend only at a reasonably convenient time and only



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in the county in which he or she is served, at a place within this State notmore than 40 miles from the place of service, or at such other convenientplace fixed by court order. The party subpoenaing a witness, other thanone subject to deposition on notice, shall reimburse the witness for theout-of-pocket expenses and loss of pay, if any, incurred in attending at thetaking of depositions.

(2) Expert Witnesses and Treating Physicians. If the expert or treatingphysician resides or works in New Jersey, but the deposition is taken at aplace other than the witness’ residence or place of business, the partytaking the deposition shall pay for the witness’ travel time and expenses,unless otherwise ordered by the court. If the expert or treating physiciandoes not reside or work in New Jersey, the proponent of the witness shalleither (A) produce the witness, at the proponent’s expense, in the countyin which the action is pending or at such other place in New Jersey uponwhich all parties shall agree, or (B) pay all reasonable travel and lodgingexpenses incurred by all parties in attending the witness’ out-of-statedeposition, unless otherwise ordered by the court.

(c) Notice; Limitations. A subpoena commanding a person to produceevidence for discovery purposes may be issued only to a person whoseattendance at a designated time and place for the taking of a deposition issimultaneously compelled. The subpoena shall state that the subpoenaedevidence shall not be produced or released until the date specified for thetaking of the deposition and that if the deponent is notified that a motion toquash the subpoena has been filed, the deponent shall not produce or releasethe subpoenaed evidence until ordered to do so by the court or the release isconsented to by all parties to the action. The subpoena shall be simulta-neously served no less than 10 days prior to the date therein scheduled on thewitness and on all parties, who shall have the right at the taking of thedeposition to inspect and copy the subpoenaed evidence produced. Ifevidence is produced by a subpoenaed witness who does not attend thetaking of the deposition, the parties to whom the evidence is so furnishedshall forthwith provide notice to all other parties of the receipt thereof andof its specific nature and contents, and shall make it available to all otherparties for inspection and copying.

Note: Source—R.R. 4:20-1 (last sentence), 4:46-4(a)(b). Paragraphs (a) and (b)amended July 14, 1972 to be effective September 5, 1972; paragraph (c) adoptedNovember 5, 1986 to be effective January 1, 1987; paragraph (b) recaptionedparagraph (b)(1) and amended, paragraph (b)(2) adopted and paragraph (c)amended July 14, 1992 to be effective September 1, 1992; paragraph (b)(1)amended July 27, 2006 to be effective September 1, 2006.


z Strategic Point: Because the proponent of an out-of-state witness is responsible for

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the witness’s reasonable costs in attending a deposition, counsel should weigh those costsin determining the best way to conduct a deposition, including video conferencing as analternative.

t Warning: Absent a court order, non-party witnesses residing in New Jersey cannot becompelled by subpoena to appear for depositions outside of the county where they live,work or do business, or at any location in excess of 20 miles from their homes.


Haynes v. Ethicon, 315 N.J. Super. 338, 718 A.2d 262 (Law Div. 1998). Defendantssought depositions of two of plaintiff’s medical experts, both of whom were located inMassachusetts. Plaintiff moved to have the witnesses deposed by video conferencing. Thecourt granted the motion, holding that the experts’ availability by video conferencing wasequivalent to producing them pursuant to N.J. Ct. R 4:14-7(b)(2).

Mc Donough, Murray & Korn, P.A., v. Breuninger, 179 N.J. Super. 574, 432 A.2d 964(Dist. Ct. 1980). In another lawsuit, plaintiff law firm took defendant attorney’sdeposition, after obtaining a court order for same. Defendant submitted a bill for her timeand for that of the attorney who appeared with her. Plaintiff protested but a bookkeeperinadvertently paid the bill. Plaintiff firm sued for reimbursement, claiming defendantappeared at the deposition as an “authorized agent” of a party to the suit and that shetherefore was not entitled to reimbursement. The court found that the defendant attorneywas not an “authorized agent” under N.J. Ct. R. 4:14-7(b) and was entitled to be paid forher lost earnings. The court found no entitlement to attorneys’ fees for her lawyer’s time.


4:14-8 Failure to attend or serve subpoena; expensesIf the party giving notice of the taking of a deposition fails to attend and

proceed therewith and another party attends in person or by attorneypursuant to the notice, or if the party giving the notice fails to serve asubpoena upon a witness who because of such failure does not attend andanother party attends in person or by attorney because that party expectsthe deposition of that witness to be taken, the court may order the partygiving the notice to pay to such other party the reasonable expenses incurredas a result of attendance either by the attending party or that party’sattorney, including reasonable attorney’s fees.

Note: Source—R.R. 4:20-7(a) (b). Amended July 14, 1972 to be effectiveSeptember 5, 1972; amended July 13, 1994 to be effective September 1, 1994.



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t Warning: Counsel should schedule depositions with careful attention, as the failure ofthe noticing party to appear permits the court to require that party to pay all reasonablefees associated with the witness’s (or the witness’s attorney’s) attendance at the scheduleddeposition.

4:14-9 Videotaped depositionsVideotaped depositions may be taken for discovery purposes or for use at

trial in accordance with the applicable provisions of these discovery rulessubject to the following further requirements and conditions:

(a) Time for Taking Videotaped Depositions. The provisions of R. 4:14-1shall apply to videotaped depositions except that such a deposition of atreating physician or expert witness which is intended for use in lieu oftrial testimony shall not be noticed for taking until 30 days after a writtenreport of that witness has been furnished to all parties. Any party desiringto take a discovery deposition of that witness shall do so within such30-day period.

(b) Notice. A party intending to videotape a deposition shall serve thenotice required by R. 4:14-2(a) not less than 10 days prior to the datetherein fixed for the taking of the deposition. The notice shall further statethat the deposition is to be videotaped.

(c) Transcript. The videotaping of a deposition shall not be deemed toexcept it from the general requirement of stenographic recording andtypewritten transcript. Prior to the swearing of the witness by the officer,the name, address and firm of the videotape operator shall be stated onthe record.

(d) Filing, Copies. Immediately following the conclusion of the video-taped deposition, the videotape operator shall deliver the tape to the partytaking the deposition who shall take physical custody thereof and arrangefor the making of one copy. The party taking the deposition shall thenfurnish a copy of the tape to an adverse party who shall make it availablefor copying and inspection to all other parties.

(e) Use. Videotaped depositions may be used at trial in accordance withR. 4:16-1. In addition, a videotaped deposition of a treating physician orexpert witness, which has been taken in accordance with these rules, maybe used at trial in lieu of testimony whether or not such witness isavailable to testify and provided further that the party who has taken the

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deposition has produced the witness for further videotaped depositionnecessitated by discovery completed following the original videotapeddeposition or for other good cause. Disputes among parties regarding therecall of a treating physician or expert witness shall be resolved bymotion, which shall be made as early as practicable before trial. Thetaking of a videotaped deposition of a treating physician or expert witnessshall not preclude the party taking the deposition from producing thewitness at trial.

(f) Objections. Where a videotaped deposition is taken for use at trial inlieu of testimony, all evidential objections shall, to the extent practicable,be made during the course of the deposition. Each party making suchobjection shall, within 45 days following the completion of the deposition,file a motion for rulings thereon and all such motions shall be consolidatedfor hearing. The court may, however, on its own motion or the motion ofa party, abbreviate the time period if the deposition of a treating physicianor expert witness is taken pursuant to R. 4:36-3(c) or for other good cause.A copy of the tape shall be edited in accordance with said rulings and thecopy so edited shall be made available for copying to all other parties.

(g) Cost of Videotaped Depositions. All out-of-pocket expenses incurredin connection with a videotaped deposition, including the making ofcopies herein required and the editing of tapes, shall be borne, in the firstinstance, by the party taking the deposition. The cost of court presenta-tion of the deposition shall be borne, in the first instance, by the partyoffering the deposition.

(h) Record on Appeal. Where a videotaped deposition is used at trial, atypewritten transcript thereof shall be included in the record on appeal.The videotape itself shall not constitute part of the record on appealexcept on motion for good cause shown.

Note: Adopted July 21, 1980 to be effective September 8, 1980; paragraph (e)amended June 29, 1990 to be effective September 4, 1990; paragraph (c)amended July 13, 1994 to be effective September 1, 1994; paragraph (d) amendedJune 28, 1996 to be effective September 1, 1996; introductory text andparagraphs (b), (d), and (f) amended July 28, 2004 to be effective September 1,2004.


z Strategic Point: Video taping depositions has become a common practice with theimplementation of N.J Ct. R. 4:36-3. Enacted to meet the goal of trial date certainty, N.J.Ct. R. 4:36-3(c) states that absent exceptional circumstances, a trial date will be adjournedfor the purpose of accommodating a particular expert witness only one time. Otherwise,the witness must be made available or a videotaped deposition must be taken in lieu oftrial testimony.

z Strategic Point: Pursuant to N.J. Ct. R. 4:14-9(f), videotaped testimony must be edited



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to reflect the court’s ruling on any objections made during the course of the deposition.Counsel should avoid over-editing as the choppy appearance that results is distracting tothe judge and jury. Effort should be made to pose questions in a format least likely toprovoke objections. Counsel for all parties involved may agree to stop the taping uponobjection, so that the grounds can be placed on the record with the court reporter withoutcluttering the videotape.

z Strategic Point: When conducting and using videotaped depositions in lieu of trialtestimony, counsel should use care to ensure the testimony is presented in the mosteffective manner. Counsel should be aware that the dynamic of live testimony does notcarry over to videotaped presentations. Questions should be posed to keep answers conciseand sharp. Presentation of the expert’s credentials should be kept to the minimumnecessary to qualify the expert so as not to lose the jury’s attention. Counsel shouldintersperse video testimony with live testimony where possible, keeping in mind that thetypical attention span runs approximately one hour.

t Warning: Though N.J. Ct. R. 4:14-9(f) requires that counsel file a motion for a rulingon objections that arise during the course of a deposition to be used in lieu of trialtestimony within 45 days, these videotaped depositions are often conducted shortly beforetrial. This is particularly true when conducted pursuant to N.J. Ct. R. 4:36-3(c) (requiringvideotaped testimony when expert witness is unable to attend scheduled trial date ifadjournment has previously been granted for that reason), in which case counsel shouldplace the basis for objections in the Pretrial Information Exchange materials required byN.J. Ct. R. 4:25-7. See N.J. Ct. R., Appx. XXIII, Pretrial Information Exchange.


Genovese v. N.J. Transit Rail Operations, 234 N.J. Super. 375, 560 A.2d 1272 (App.Div. 1989). Defendant had plaintiff examined by a defense neuropsychiatrist. They thenarranged a videotaped deposition of the expert, which turned out to be a disappointment.At trial, plaintiff successfully sought to have the doctor’s videotaped testimony as part ofhis case, arguing the testimony should be considered the same as live testimony at trial.The Appellate Division reversed, finding that use of videotaping under N.J. Ct. R.4:14-9(e) would be discouraged if the adverse party were permitted to use the testimonyfor its own purposes. The court made a policy ruling that a videotaped deposition shouldnot be “substantively useable by an adversary over objection.”

Spaulding v. Hussain, 229 N.J. Super. 430, 551 A.2d 1022 (App. Div. 1988). Plaintiffwas injured in an accident in which he fell and was treated by the defendant neurologist.Plaintiff pursued litigation to recover damages for his injury. The defendant refused totestify in that action, leaving plaintiff little choice but to accept an inadequate settlement.Plaintiff then filed this action against the physician to recover the reasonable value of hisprior case. Affirming the trial court, the Appellate Division held that the defendant treatingphysician was obliged to render litigation assistance, including testimony, particularlywhen promised. The court pointed out the availability of videotaping to minimizeinconvenience.


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RULE 4:15 DEPOSITIONS UPON WRITTENQUESTIONS

4:15-1 Serving questions; noticeAfter commencement of the action, any party may take the testimony of

any person, including a party, by deposition upon written questions. Theattendance of witnesses may be compelled by the use of subpoena asprovided in R. 4:14-7. The deposition of a person confined in prison may betaken only by leave of court on such terms as the court prescribes. A partydesiring to take a deposition upon written questions shall serve them uponevery other party with a notice stating:

(a) The name and address of the person who is to answer them, ifknown, and if the name is not known, a general description sufficient toidentify that person or the particular class or group to which that personbelongs; and

(b) The name or descriptive title and address of the officer before whomthe deposition is to be taken. A deposition upon written questions may betaken of a public or private corporation or a partnership or association orgovernmental agency in accordance with the provisions of R. 4:14-2(c).

Within 30 days after the notice and written questions are served, aparty may serve cross questions upon all other parties. Within 10 daysafter being served with cross questions, a party may serve redirectquestions upon all other parties. Within 10 days after being served withredirect questions, a party may serve recross questions upon all otherparties. The court may for cause shown enlarge or shorten the time.

Note: Source—R.R. 4:21-1. Former rule deleted and new R. 4:15-1 adoptedJuly 14, 1972 to be effective September 5, 1972; paragraph (a) amended July 13,1994 to be effective September 1, 1994.


z Strategic Point: Depositions upon written questions are rarely used. N.J. Ct. R. 4:15-1permits service of initial questions and then cross, redirect and recross questions. Betweenthe service of initial questions and the service of recross questions, as many as 50 days



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may permissibly elapse. The inclusion of rebuttal questioning suggests either thepossibility of four appearances by the witness or questions for cross-examination beingsubmitted before answers are given to the direct questions. The procedure prescribed isneither desirable nor practical. Counsel seeking to take depositions by written questionsshould agree upon guidelines with adversary counsel or seek court intervention toestablish more manageable procedures.

s Timing: Though notice is required for a deposition upon written questions, N.J. Ct. R.4:15-1 does not specify how far in advance notice must be served. Because this proceedingis a form of a deposition, Counsel is well-advised to serve at least 10 days’ notice, pursuantto N.J. Ct. R. 4:14-2(a), governing notices of examination.


Hyland v. Smollok, 137 N.J. Super. 456, 349 A.2d 541 (App. Div. 1975). The office ofthe New Jersey Attorney General brought this action to remove the defendant schoolofficial from office due to his failure to answer questions before a grand jury. Defendantresponded that the statute authorizing his removal was being selectively enforced againsthim. He sought depositions of the Attorney General, the Director of the Division ofCriminal Justice and the Deputy Attorney General. The Appellate Division reversed thetrial judge’s denial of a protective order to prevent the depositions. The court held that,despite the provisions of N.J. Ct. R 4:15-1 and the overall liberality of discovery,high-level officials should not be subject to depositions unless they are directly involvedin the transaction or injustice may occur.


4:15-2 Officer to take responses and prepare recordA copy of the notice and copies of all questions served shall be delivered

by the party taking the deposition to the officer designated in the notice, whoshall proceed promptly in the manner provided by R. 4:14-3, 4:14-5 and4:14-6 to take the testimony of the witness in response to the questions andto prepare, certify and file the deposition, attaching thereto the copy of thenotice and the questions received by him.

Note: Source—R.R. 4:21-2. Amended July 14, 1972 to be effective September5, 1972.


t Warning: Although N.J. Ct. R. 4:15-2 does not provide a cross-reference, counsel

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should ensure that the officer receiving the questions and answers falls within therequirements of N.J. Ct. R. 4:12 specifying persons qualified to take a deposition.

4:15-3 Orders for the Protection of Parties and Deponents and theExclusion of Illegal Evidence [Deleted]

Note: Source-R.R. 4:21-3. Deleted (see R. 4:10-3) July 14, 1972 to be effectiveSeptember 5, 1972.

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RULE 4:16 USE OF DEPOSITIONS; OBJECTIONS;EFFECT; ERRORS AND IRREGULARITIES

4:16-1 Use of depositionsAt the trial or upon the hearing of a motion or an interlocutory

proceeding, any part or all of a deposition, so far as admissible under therules of evidence applied as though the witness were then present andtestifying, may be used in accordance with any of the following provisions:

(a) Any deposition may be used by any party for the purpose ofcontradicting or impeaching the testimony of deponent as a witness, or forany other purpose permitted by the Rules of Evidence.

(b) The deposition of a party or of any one who at the time of taking thedeposition was an officer, director, or managing or authorized agent, or aperson designated under R. 4:14-2(c) or R. 4:15-1 to testify on behalf of apublic or private corporation, partnership or association or governmentalagency which is a party, may be used by an adverse party for any purposeagainst the deponent or the corporation, partnership, association oragency.

(c) Except as otherwise provided by R. 4:14-9(e), the deposition of awitness, whether or not a party, may be used by any party for anypurpose, against any other party who was present or represented at thetaking of the deposition or who had reasonable notice thereof if the courtfinds that the appearance of the witness cannot be obtained because ofdeath or other inability to attend or testify, such as age, illness, infirmityor imprisonment, or is out of this state or because the party offering thedeposition has been unable in the exercise of reasonable diligence toprocure the witness’s attendance by subpoena, provided, however, thatthe absence of the witness was not procured or caused by the offeringparty. The deposition of an absent but not unavailable witness may also beso used if, upon application and notice, the court finds that suchexceptional circumstances exist as to make such use desirable in theinterest of justice and with due regard to the importance of presenting thetestimony of witnesses orally in open court.

(d) If only part of a deposition is offered in evidence by a party, anadverse party may require the offering party to introduce any other part

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which ought in fairness be considered with the part introduced, and anyparty may offer any other parts.

Substitution of parties pursuant to R. 4:34 does not affect the rightto use depositions previously taken; and, when an action has beenbrought in any court of the United States or of any state and anotheraction involving the same subject matter is afterward maintainedbetween the same parties or their representatives or successors ininterest, all depositions lawfully taken in the former action may be usedin the latter as if originally taken therefor, provided that the officer’sstatement required by R. 4:14-6(a) was duly filed. A depositionpreviously taken may also be used as permitted by the Rules ofEvidence.

Note: Source—R.R. 4:16-4. Former rule deleted (see R. 4:16-4(a)) and new R.4:16-1 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R.4:10-4); paragraph (c) amended July 21, 1980 to be effective September 8, 1980;paragraphs (a) and (c) and text amended July 26, 1984 to be effective September10, 1984; paragraphs (c) and (d) amended July 13, 1994 to be effectiveSeptember 1, 1994.


z Strategic Point: Depositions may be used in cross-examination if the depositiontestimony differs from the testimony of a witness at trial. See N.J.R.E. 607. Confrontinga witness with prior testimony is effective if the inconsistency is clear and material.Counsel should avoid confrontation when the prior testimony is ambiguous or trivialbecause any insinuation of untruthfulness can backfire if the contradiction is not readilyapparent.

s Timing: Proposed use of deposition testimony at trial in a party’s case in chief mustbe listed on the Pretrial Information Exchange memorandum. N.J. Ct. R., Appx. XXIII,Pretrial Information Exchange. Objections to proposed submissions are also listed on thememorandum. The memorandum is to be served at least seven days before trial. N.J. Ct.R. 4:25-7(b).

Exception: There are limitations on the use of deposition testimony, other than by anadverse party. These primarily involve the availability of the deponent. N.J.R.E. 804. Thelimitations do not apply to de bene esse videotaped depositions. N.J. Ct. R. 4:14-9(e).

Exception: Testimony of officers, directors, and authorized or managing agents may beused against corporations or similar entities as well as others designated under N.J. Ct. R.4:14-2(c). The testimony of other employees cannot be assumed to be binding. The focusfor admissibility of the testimony of an employee not designated under N.J. Ct. R.4:14-2(c) is on the role of the witness in the transaction or occurrence, as well as his orher authority within the entity.



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Williams v. Hodes, 363 N.J. Super. 600, 834 A.2d 415 (App. Div. 2003). The plaintiff inthis auto accident case was in the first car in line in a four-vehicle chain collision. She suedonly the driver of the fourth car in line. Defendant then filed a third party complaintagainst the drivers of the second and third cars. Prior to trial, plaintiff served notices in lieuof subpoena upon the third party defendants. On the first day of trial, the third partycomplaint was voluntarily dismissed. Plaintiff then unsuccessfully tried to subpoena thetwo third party defendants but was not permitted to read from their depositions. This lefta deficiency in plaintiff’s proofs which resulted in a directed verdict in favor of defendant.The Appellate Division reversed. First, the notice in lieu of subpoena survived thedismissal and those parties were obliged to comply. Second, the plaintiff should have beenpermitted to read from the depositions under N.J. Ct. R 4:16-1(c), as they were unavailabledespite plaintiff’s diligent efforts. Finally, the situation presented “exceptional circum-stances” sufficient to allow for reading the depositions.

Avis Rent-A-Car v. Cooper, 273 N.J. Super. 198, 641 A.2d 570 (App. Div. 1994).Plaintiff sought to use the depositions of three witnesses taken via telephone as substantiveevidence at trial. One deponent was an expert, the second was an employee manager andthe third was an unrelated employee of Nissan Motor Corp. All resided outside of NewJersey. The trial court refused to allow use of all three. The Appellate Division reversedas to the Nissan witness, as he was outside of the state and his absence was not procuredby the defendant. The court affirmed as to the employee manager, finding that plaintiffcould produce him by simply paying for his travel costs and other expenses. It alsoaffirmed the exclusion of the expert’s testimony, pointing out that depositions of expertsfor trial are governed by N.J. Ct. R 4:14-9. Any other means of deposing an expert areexcluded from N.J. Ct. R 4:16-1(c).

Witter by Witter v. Leo, 269 N.J. Super. 380, 635 A.2d 580 (App. Div. 1994). Plaintiffbrought a negligent supervision claim against defendant mother whose son threw a partyin her absence at which minors were drinking alcoholic beverages. The infant plaintiffjumped from the roof of the defendant’s house, after drinking at the party. The son was atcollege and the trial judge permitted the defendant to read his deposition as evidence andrefused to charge an adverse inference from his not being produced as a witness by hismother. After a verdict in favor of the defendant mother, the Appellate Division reversedand remanded the case for a new trial. The court held that the son’s absence was causedby the defendant and he was not unavailable as provided by N.J. Ct. R 4:16-1(c). The trialcourt should not have permitted admission of the son’s deposition.

Giannetti v. Fenwick, 166 N.J. Super. 491, 400 A.2d 103 (App. Div. 1979). An autoaccident case resulted in a verdict and judgment in favor of defendant. The plaintiffappealed, arguing that defendant’s deposition should not have been read to the jury. TheAppellate Division disagreed, finding that the use of the deposition of an unavailableinsured defendant falls within the “exceptional circumstances” set forth in N.J. Ct. R.4:16-1(c).

Bonnet v. Stewart, 68 N.J. 287, 299, 344 A.2d 321 (1975) (permitted adverse party to readinto evidence portions of deposition taken of insurer’s accounting department supervisor).

Lopez v. House of Coffee, 332 N.J. Super. 364, 368, 753 A.2d 755 (Ch. Div. 2000) (party

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witnesses should not be sequestered at depositions due to breadth of use of depositions attrial).

Panasonic Indus. Co. v. Emerson Quiet Kool Corp., 269 N.J. Super. 502, 505, 635 A.2d1024 (Law Div. 1993) (“managing or authorized agent” under N.J. Ct. R. 4:16-1determined by factors including whether interest of individual and principal align and rolein transaction or event which is subject of suit).

Guzzi v. Clarke, 252 N.J. Super. 361 (Law Div. 1991) (deposition of former party whois available is inadmissible).


4:16-2 Objections to admissibilitySubject to the provisions of R. 4:16-4(c), objection may be made at the

trial or hearing to receiving in evidence any deposition or part thereof forany reason which would require the exclusion of the evidence if the witnesswere then present and testifying.

Note: Source—R.R. 4:16-5. Former rule deleted (see R. 4:16-4(b)) and new R.4:16-2 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R.4:10-5).


t Warning: By providing an instance in which an objection to deposition testimonymay be raised at trial, NJ. Ct. R. 4:16-2 provides an exception to N.J. Ct. R. 4:16-4(c)(2),which states that any objections that arise during a deposition must be raised at that timeor they are deemed waived.

s Timing: Objections should be listed in the Pretrial Information Exchange (N.J. Ct. R.,Appx. XXIII), which counsel exchanges at least seven days before trial. N.J. Ct. R.4:25-7(b).



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4:16-3 Effect of taking or using depositionA person does not become a party’s witness for any purpose merely

because that party has taken that person’s deposition. At the trial or hearingany party may rebut any relevant evidence contained in a depositionwhether introduced by that party or by any other party.

Note: Source—R.R. 4:16-6. Former rule deleted (see R. 4:16-4(c)) and new R.4:16-3 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R.4:10-6); amended July 13, 1994 to be effective September 1, 1994.


z Strategic Point: There are evidential restraints upon presentation of evidence toimpeach a witness deemed a party’s witness. See N.J.R.E. 607. This rule establishes thatdeposing a witness or introducing deposition testimony at trial does not restrict the party’sability to impeach that witness.

4:16-4 Effect of errors and irregularities in depositions(a) As to Notice. All errors and irregularities in the notice for taking a

deposition are waived unless at least 3 days before the time fixed forexamination, or within such time as the court fixes by order, writtenobjection is served upon the party giving the notice.

(b) As to Disqualification of Officer. Objection to taking a depositionbecause of disqualification of the officer before whom or the person by whomit is to be taken is waived unless made before the taking of the depositionbegins or as soon thereafter as the disqualification becomes known or couldbe discovered with reasonable diligence.

(c) As to Taking of Deposition.

(1) Objections Not Waived. Objections to the competency of a witnessor to the competency, relevancy, or materiality of testimony are notwaived by failure to make them before or during the taking of the

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deposition, unless the ground of the objection is one which might havebeen obviated or removed if presented at that time.

(2) Objections Waived. Except as otherwise provided by R. 4:14-3(c),errors and irregularities occurring at the oral examination in the mannerof taking the deposition, in the form of the questions or answers, in theoath or affirmation, or in the conduct of parties, and errors of any kindwhich might be obviated, removed, or cured if promptly presented arewaived unless timely objection thereto is made at the taking of thedeposition. Objections to the form of written questions submitted underR. 4:15 are waived unless served in writing upon the party propoundingthem within the time allowed for serving the succeeding cross or redirectquestions or, if the objection is as to recross questions, then within 5 daysafter service thereof.

(d) As to Completion and Return of Deposition. Errors and irregularitiesin the manner in which the testimony is transcribed or the deposition isprepared, signed, certified, sealed, endorsed, transmitted, filed or otherwisedealt with by the officer are waived unless a motion to suppress thedeposition or some part thereof is made with reasonable promptness aftersuch defect is, or with due diligence might have been, ascertained.

Note: Source—R.R. 4:22-1, 4:22-2, 4:22-3(a) (b) (c). Paragraph (d) amendedJuly 14, 1972 to be effective September 5, 1972 (paragraphs (a) (b) (c) formerlyR. 4:16-1, 4:16-2, 4:16-3); paragraph (c)(2) amended July 5, 2000 to be effectiveSeptember 5, 2000.


s Timing: Objections that can be cured, such as objections to the form of a question,must be made at the time the objectionable conduct occurs. N.J. Ct. R. 4:16-4 permitscorrection of objectionable phrasing of a question or conduct of a party. Objectionableconduct occurs, for example, when the spouse of a deponent interrupts or contradicts thedeponent. Counsel should obviate this conduct by cautioning the offending party orremoving the party from the room. Failure to object at the time the conduct occurs restrictscounsel’s ability to complain later. If the conduct continues, counsel should resort to anapplication for a protective order (N.J. Ct. R. 4:10-3) or an application to terminate or limitthe deposition. N.J. Ct. R. 4:14-4.


Greenberg v. Stanley, 30 N.J. 485, 153 A.2d 833 (1959). In an automobile accident case,the defendant drivers disputed whether one cut off the other, causing the car to leave theroadway and strike pedestrians on the sidewalk. Counsel for the party allegedly that struckthe pedestrian persistently tried to confront the other driver with deposition testimony thatunidentified persons at the scene had remarked the car had been cut off. The SupremeCourt reversed the Appellate Division, pointing out that deposition testimony used underN.J. Ct. R 4:16-4 must be admissible under the rules of evidence. The defense counsel’s



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repeated reference to inadmissible deposition testimony merited a new trial.

State v. Freeman, 223 N.J. Super. 92, 113, 538 A.2d 371 (App. Div. 1988), certif. denied,114 N.J. 525, 555 A.2d 637 (1989). In a criminal case, convicted defendant objected toadmission into evidence of a videotaped deposition of a witness ruled unavailable totestify at trial. Defendant cited a number of irregularities, including failure to swear thewitness and identify the videographer. Further there was no reporter present, and the tapewas not sealed. Affirming the conviction, the Appellate Division ruled that the objectionswere not timely and should be deemed waived under N.J. Ct. R. 4:16-4(c)(2).


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rule 4:12 persons before whom depositions may...

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