RULE 12.310. DEPOSITIONS UPON ORAL EXAMINATION

(a) When Depositions May Be Taken. 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 or without notice, must be obtained only if the
petitioner seeks to take a deposition within 30 days after service of
the process and initial pleading on any respondent, except that
leave is not required (1) if a respondent has served a notice of taking
deposition or otherwise sought discovery, or (2) if special notice is
given as provided in subdivision (b)(2). The attendance of witnesses
may be compelled by subpoena as provided in rule 12.410. The
deposition of a person confined in prison may be taken only by
leave of court on such terms as the court prescribes.

(b) Notice; Method of Taking; Production at Deposition.

(1) A party desiring to take the deposition of any person
upon oral examination must give reasonable notice in writing to
every other party to the action. The notice must state the time and
place for taking the deposition and the name and address of each
person to be examined, if known, and, if the name is not known, a
general description sufficient to identify the person or the particular
class or group to which the person belongs. If a subpoena duces
tecum is to be served on the person to be examined, the designation
of the materials to be produced under the subpoena must be
attached to or included in the notice, and if the deposition is to be
taken through the use of communication technology, the parties
shall provide the subpoenaed documents no later than 5 days prior
to the deposition.

(2) Leave of court is not required for the taking of a
deposition by petitioner if the notice states that the person to be
examined is about to go out of the state and will be unavailable for
examination unless a deposition is taken before expiration of the
30-day period under subdivision (a). If a party shows that when
served with notice under this subdivision that party was unable
through the exercise of diligence to obtain counsel to represent the
party at the taking of the deposition, the deposition may not be
used against that party.

(3) For cause shown the court may enlarge or shorten
the time for taking the deposition.

(4) Any deposition may be audiovisually recorded
without leave of the court or stipulation of the parties, provided the
deposition is taken in accordance with this subdivision.

(A) Notice. In addition to the requirements in
subdivision (b)(1), a party intending to audiovisually record a
deposition must:
(i) state that the deposition is to be
audiovisually recorded in the title of the notice; and

(ii) identify the method for audiovisually
recording the deposition and, if applicable, provide the name and
address of the operator of the audiovisual recording equipment in
the body of the notice.

(B) Court Reporter. Audiovisually recorded
depositions must also be stenographically recorded by a certified
court reporter, unless all parties agree otherwise. If all parties have
agreed to waive the requirement of stenographic recording, then in
addition to the requirements of subdivision (b)(4)(A), the notice or
subpoena setting deposition shall set forth that agreement.

(C) Procedure. At the beginning of the deposition,
the officer before whom it is taken must, on camera: (i) identify the
style of the action, (ii) state the date, and (iii) put the witness under
oath as provided in subdivision (c)(1).

(D) Responsibility for Recordings and Obtaining
Copies. The attorney for the party, or the self-represented litigant,
requesting the audiovisual recording of the deposition must take
custody of and be responsible for the safeguarding of the recording.
If requested, an attorney or self-represented litigant safeguarding a
recording must provide a copy of the recording at the expense of the
party requesting the copy unless the court order otherwise. An
attorney or self-represented litigant safeguarding a recording may
condition providing a copy of the recording upon receipt of
payment. An attorney or self-represented litigant who fails to
safeguard a recording or provide a copy as set forth in this
subdivision may be subject to sanctions.

(E) Cost of Audiovisually Recorded Depositions.
The party requesting the audiovisual recording bears the initial cost
of the recording.

(5) The notice to a party deponent may be accompanied
by a request made in compliance with rule 12.350 for the
production of documents and tangible things at the taking of the
deposition. The procedure of rule 12.350 applies to the request.
Rule 12.351 provides the exclusive procedure for obtaining
documents or things by subpoena from nonparties without
deposing the custodian or other person in possession of the
documents.

(6) In the notice a party may name as the deponent a
public or private corporation, a partnership or association, or a
governmental agency, and designate with reasonable particularity
the matters on which examination is requested. The organization so
named must designate one or more officers, directors, or managing
agents, or other persons who consent to do so, to testify on its
behalf and may state the matters on which each person designated
will testify. The persons so designated must testify about matters
known or reasonably available to the organization. This subdivision
does not preclude taking a deposition by any other procedure
authorized in these rules.

(7) A deposition may be taken by communication
technology, as that term is defined in Florida Rule of General
Practice and Judicial Administration 2.530, if stipulated by the
parties or if ordered by the court on its own motion or on motion of
a party. A court official must determine whether good cause exists
before authorizing the use of communication technology for the
taking of a deposition, but a motion filed under this subdivision
shall not require a hearing. The order may prescribe the manner in
which the deposition will be taken. In addition to the requirements
of subdivision (b)(1), a party intending to take a deposition by
communication technology must:

(A) state that the deposition is to be taken using
communication technology in the title of the notice; and
(B) identify the specific form of communication
technology to be used and provide instructions for access to the
communication technology in the body of the notice.

(8) Any minor subpoenaed for testimony has the right
to be accompanied by a parent, guardian, guardian ad litem, or
attorney ad litem at all times during the taking of testimony
notwithstanding the invocation of the rule of sequestration of
section 90.616, Florida Statutes, except on a showing that the
presence of a parent or guardian is likely to have a material,
negative impact on the credibility or accuracy of the minor’s
testimony, or that the interests of the parent or guardian are in
actual or potential conflict with the interests of the minor. The
provisions of this subdivision do not alter the requirements of rule
12.407 that a court order must be obtained before a minor child
may be deposed or brought to a deposition.

(c) Examination and Cross-Examination; Record of
Examination; Oath; Objections; Transcription.

(1) Examination and cross-examination of witnesses
may proceed as permitted at the trial. The officer before whom the
deposition is to be taken must put the witness under oath and
must personally, or by someone acting under the officer’s direction
and in the officer’s presence, record the testimony of the witness,
except that when a deposition is being taken by communication
technology under subdivision (b)(7), the witness must be put under
oath as provided in Florida Rule of General Practice and Judicial
Administration 2.530. The testimony must be taken
stenographically or recorded via audio-video communication
technology under subdivision (b)(4). All objections made at the time
of the examination to the qualifications of the officer taking the
deposition, the manner of taking it, the evidence presented, or the
conduct of any party, and any other objection to the proceedings
must be noted by the officer during the deposition. Any objection
during a deposition must be stated concisely and in a
nonargumentative and nonsuggestive manner. A party may instruct
a deponent not to answer only when necessary to preserve a
privilege, to enforce a limitation on evidence directed by the court,
or to present a motion under subdivision (d). Otherwise, evidence
objected to must be taken subject to the objections. Instead of
participating in the oral examination, parties may serve written
questions in a sealed envelope on the party taking the deposition
and that party must transmit them to the officer, who must
propound them to the witness and record the answers verbatim.
(2) If requested by a party, the testimony must be
transcribed at the initial cost of the requesting party and prompt
notice of the request must be given to all other parties. A party who
intends to use an audio or audiovisual recording of testimony at a
hearing or trial must have the testimony transcribed and must file a
copy of the transcript with the court.

(d) Motion to Terminate or Limit Examination. At any
time during the taking of the deposition, on motion of a party or of
the deponent and on a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or party, or that
objection and instruction to a deponent not to answer are being
made in violation of subdivision (c), the court in which the action is
pending or the circuit court where the deposition is being taken
may order the officer conducting the examination to cease
immediately from taking the deposition or may limit the scope and
manner of the taking of the deposition under rule 12.280(d). If the
order terminates the examination, it shall be resumed thereafter
only on the order of the court in which the action is pending. On
demand of any party or the deponent, the taking of the deposition
must be suspended for the time necessary to make a motion for an
order. The provisions of rule 12.380(a)(4) apply to the award of
expenses incurred in relation to the motion.

(e) Witness Review. If the testimony is transcribed, the
transcript must be furnished to the witness for examination and
must be read to or by the witness unless the examination and
reading are waived by the witness and by the parties. Any changes
in form or substance that the witness wants to make must be listed
in writing by the officer with a statement of the reasons given by the
witness for making the changes. The changes must be attached to
the transcript. It must then be signed by the witness unless the
parties waived the signing or the witness is ill, cannot be found, or
refuses to sign. If the transcript is not signed by the witness within
a reasonable time after it is furnished to the witness, the officer
signs the transcript and states on the transcript the waiver, illness,
absence of the witness, or refusal to sign with any reasons given.
The deposition may then be used as fully as though signed unless
the court holds that the reasons given for the refusal to sign require
rejection of the deposition wholly or partly, on motion under rule
12.330(d)(4).

(f) Filing; Exhibits.

(1) If the deposition is transcribed, the officer must
certify on each copy of the deposition that the witness was duly
sworn by the officer and that the deposition is a true record of the
testimony given by the witness. Documents and things produced for
inspection during the examination of the witness must be marked
for identification and annexed to and returned with the deposition
on the request of a party, and may be inspected and copied by any
party, except that the person producing the materials may
substitute copies to be marked for identification if that person
affords to all parties fair opportunity to verify the copies by
comparison with the originals. If the person producing the materials
requests their return, the officer must mark them, give each party
an opportunity to inspect and copy them, and return them to the
person producing them and the materials may then be used in the
same manner as if annexed to and returned with the deposition.

(2) On payment of reasonable charges therefor the
officer must furnish a copy of the deposition to any party or to the
deponent.

(3) A copy of a deposition may be filed only under the
following circumstances:

(A) It may be filed in compliance with Florida Rule
of General Practice and Judicial Administration 2.425 and rule
12.280(j) by a party or the witness when the contents of the
deposition must be considered by the court on any matter pending
before the court. Prompt notice of the filing of the deposition must
be given to all parties unless notice is waived. A party filing the
deposition must furnish a copy of the deposition or the part being
filed to other parties unless the party already has a copy.

(B) If the court determines that a deposition
previously taken is necessary for the decision of a matter pending
before the court, the court may order that a copy be filed by any
party at the initial cost of the party, and the filing party must
comply with rules 2.425 and 12.280(j).

(g) Failure to Attend or to Serve Subpoena; Expenses.

(1) If the party giving the notice of the taking of a
deposition fails to attend and proceed with the deposition and
another party attends in person or by attorney pursuant to the
notice, the court may order the party giving the notice to pay to the
other party the reasonable expenses incurred by the other party
and the other party’s attorney in attending, including reasonable
attorneys’ fees.

(2) If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena on the witness and
the witness because of the failure does not attend and if another
party attends in person or by attorney because that other party
expects the deposition of that witness to be taken, the court may
order the party giving the notice to pay to the other party the
reasonable expenses incurred by that other party and that other
party’s attorney in attending, including reasonable attorneys’ fees.

Committee Note
2008 Amendment. The provisions of Fla. R. Civ. P. 1.310(b)(8)
do not alter the requirements of Rule 12.407 that a court order
must be obtained before deposing a minor child.