N.Y. Civil Practice Law & Rules § 3113: Conduct of the examination

Rule 3113. Conduct of the examination. (a) Persons before whom

depositions may be taken. Depositions may be taken before any of the

following persons except an attorney, or employee of an attorney, for a

party or prospective party and except a person who would be disqualified

to act as a juror because of interest in the event or consanguinity or

affinity to a party:

1. within the state, a person authorized by the laws of the state to

administer oaths;

2. without the state but within the United States or within a

territory or possession subject to the jurisdiction of the United

States, a person authorized to take acknowledgments of deeds outside of

the state by the real property law of the state or to administer oaths

by the laws of the United States or of the place where the deposition is

taken; and

3. in a foreign country, any diplomatic or consular agent or

representative of the United States, appointed or accredited to, and

residing within, the country, or a person appointed by commission or

under letters rogatory, or an officer of the armed forces authorized to

take the acknowledgment of deeds.

Officers may be designated in notices or commissions either by name or

descriptive title and letters rogatory may be addressed "To the

Appropriate Authority in (here name the state or country)."

(b) Oath of witness; recording of testimony; objections; continuous

examination; written questions read by examining officer. The officer

before whom the deposition is to be taken shall put the witness on oath

and shall personally, or by someone acting under his direction, record

the testimony. The testimony shall be recorded by stenographic or other

means, subject to such rules as may be adopted by the appellate division

in the department where the action is pending. All objections made at

the time of the examination to the qualifications of the officer taking

the deposition or the person recording it, or to the manner of taking

it, or to the testimony presented, or to the conduct of any person, and

any other objection to the proceedings, shall be noted by the officer

upon the deposition and the deposition shall proceed subject to the

right of a person to apply for a protective order. The deposition shall

be taken continuously and without unreasonable adjournment, unless the

court otherwise orders or the witness and parties present otherwise

agree. In lieu of participating in an oral examination, any party served

with notice of taking a deposition may transmit written questions to the

officer, who shall propound them to the witness and record the answers.

(c) Examination and cross-examination. Examination and

cross-examination of deponents shall proceed as permitted in the trial

of actions in open court, except that a non-party deponent's counsel may

participate in the deposition and make objections on behalf of his or

her client in the same manner as counsel for a party. When the

deposition of a party is taken at the instance of an adverse party, the

deponent may be cross-examined by his or her own attorney.

Cross-examination need not be limited to the subject matter of the

examination in chief.

(d) The parties may stipulate that a deposition be taken by telephone

or other remote electronic means and that a party may participate

electronically. The stipulation shall designate reasonable provisions to

ensure that an accurate record of the deposition is generated, shall

specify, if appropriate, reasonable provisions for the use of exhibits

at the deposition; shall specify who must and who may physically be

present at the deposition; and shall provide for any other provisions

appropriate under the circumstances. Unless otherwise stipulated to by

the parties, the officer administering the oath shall be physically

present at the place of the deposition and the additional costs of

conducting the deposition by telephonic or other remote electronic

means, such as telephone charges, shall be borne by the party requesting

that the deposition be conducted by such means.