Leave of court is required for the taking of a deposition to perpetuate testimony. The amendment was made in order to clarify the fact that audio-visual depositions may be taken under the rule. The amendment also provides that the method of taking audio-visual depositions is governed by Rule 30.1, N.D.R.Civ. The court may change the noticed time, place, or manner of recording upon motion of the deponent, as well as any party. Restriction is placed on taking depositions outside of this state in situations where the defendant may not travel or be transported to the proposed location, unless the defendant waives the right to be present.
Distinction is made between a discovery deposition and one to perpetuate testimony.
If the defendant is not present at a deposition to perpetuate testimony under one of the above exceptions, the defendant's counsel must be. The taking may proceed as a discovery deposition or the prosecuting attorney, if the prosecuting attorney is taking the deposition, may postpone the taking and secure a court order to take the defendant into custody to assure the defendant's presence, so that the deposition will have the greater admissibility of a perpetuation deposition. This use of a deposition as substantive evidence also applies to discovery depositions upon court determination of fairness and, if offered by the prosecution, that the defendant was present at its taking.