§ 502.149 Use of depositions at hearings. ( a ) *Using depositions.* ( 1 ) *In general.* At a hearing, all or part of a deposition may be used against a party on these conditions: ( i ) The party was present or represented at the taking of the deposition or had reasonable notice of it;
( ii ) It is used to the extent it would be admissible if the deponent were present and testifying; and
( iii ) The use is allowed by § 502.149(a)(2) through (7).
( 2 ) *Impeachment and other uses.* Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by § 502.204 of subpart L of this part.
( 3 ) *Deposition of party, representative, or designee.* An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing representative, or designee under § 502.143(b)(6) or § 502.144(a)(4).
( 4 ) *Unavailable witness.* A party may use for any purpose the deposition of a witness, whether or not a party, if the Commission or presiding officer finds: ( i ) That the witness is dead;
( ii ) That the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
( iii ) That the party offering the deposition could not procure the witness's attendance by subpoena; or
( iv ) On motion and notice, that exceptional circumstances make it desirable, in the interest of justice and with due regard to the importance of live testimony at a hearing, to permit the deposition to be used.
( 5 ) *Using part of a deposition.* If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.
( 6 ) *Substituting a party.* Substituting a party does not affect the right to use a deposition previously taken.
( 7 ) *Deposition taken in an earlier action.* A deposition lawfully taken and, if required, filed in any Federal or State court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by § 502.204 of subpart L of this part.
( b ) *Objections to admissibility.* Subject to § 502.142(b) and § 502.149(d)(3), an objection may be made at a hearing to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.
( c ) *Form of presentation.* Unless the presiding officer orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the presiding officer with the testimony in nontranscript form as well.
( d ) *Waiver of objections.* ( 1 ) *To the notice.* An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.
( 2 ) *To the officer's qualification.* An objection based on qualification of the officer before whom a deposition is to be taken is waived if not made: ( i ) Before the deposition begins; or
( ii ) Promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
( 3 ) *To the taking of the deposition.* ( i ) *Objection to competence, relevance, or materiality.* An objection to a deponent's competence, or to the competence, relevance, or materiality of testimony, is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
( ii ) *Objection to an error or irregularity.* An objection to an error or irregularity at an oral examination is waived if: ( A ) It relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and
( B ) It is not timely made during the deposition.
( iii ) *Objection to a written question.* An objection to the form of a written question under § 502.144 of this subpart is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it.
( 4 ) *To completing and returning the deposition.* An objection to how the officer transcribed the testimony, or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition, is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known. [Rule 209.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016; 81 FR 93837, Dec. 22, 2016]