Fla. Fam. L. R. P. 12.351

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

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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.

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(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

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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

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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.

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.