US (United States) Code. Title 28. Part V: Procedure. Chapter 117: Evidence; depositions

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Judiciary and judicial procedure

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-CITE-

28 USC CHAPTER 117 - EVIDENCE; DEPOSITIONS 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 117 - EVIDENCE; DEPOSITIONS

-HEAD-

CHAPTER 117 - EVIDENCE; DEPOSITIONS

-MISC1-

Sec.

1781. Transmittal of letter rogatory or request.

1782. Assistance to foreign and international tribunals and

to litigants before such tribunals.

1783. Subpoena of person in foreign country.

1784. Contempt.

1785. Subpoenas in multiparty, multiforum actions.

AMENDMENTS

2002 - Pub. L. 107-273, div. C, title I, Sec. 11020(b)(4)(B)(ii),

Nov. 2, 2002, 116 Stat. 1829, added item 1785.

1964 - Pub. L. 88-619, Secs. 8(b), 9(b), 10(b), 12(b), Oct. 3,

1964, 78 Stat. 997, 998, substituted "Transmittal of letter

rogatory or request" for "Foreign witnesses" in item 1781,

"Assistance to foreign and international tribunals and to litigants

before such tribunals" for "Testimony for use in foreign countries"

in item 1782, "person" for "witness" in item 1783, and struck out

item 1785 "Privilege against incrimination".

DEPOSITIONS IN ADMIRALTY CASES

Prior to the general unification of civil and admiralty procedure

and the recision of the Admiralty Rules on July 1, 1966, Revised

Statutes Secs. 863 to 865, as amended, which related to depositions

de bene esse, when and how taken, notice, mode of taking, and

transmission to court, provided as follows:

"Sec. 863. The testimony of any witness may be taken in any civil

cause depending in a district court by deposition de bene esse,

when the witness lives at a greater distance from the place of

trial than one hundred miles, or is bound on a voyage to sea, or is

about to go out of the United States, or out of the district in

which the case is to be tried, and to a greater distance than one

hundred miles from the place of trial, before the time of trial, or

when he is ancient and infirm. The deposition may be taken before

any judge of any court of the United States, or any clerk of a

district court, or any chancellor, justice, or judge of a supreme

or superior court, mayor or chief magistrate of a city, judge of a

county court or court of common pleas of any of the United States,

or any notary public, not being of counsel or attorney to either of

the parties, nor interested in the event of the cause. Reasonable

notice must first be given in writing by the party or his attorney

proposing to take such deposition, to the opposite party or his

attorney of record, as either may be nearest, which notice shall

state the name of the witness and the time and place of the taking

of his deposition; and in all cases in rem, the person having the

agency or possession of the property at the time of seizure shall

be deemed the adverse party, until a claim shall have been put in;

and whenever, by reason of the absence from the district and want

of an attorney of record or other reason, the giving of the notice

herein required shall be impracticable, it shall be lawful to take

such depositions as there shall be urgent necessity for taking,

upon such notice as any judge authorized to hold courts in such

district shall think reasonable and direct. Any person may be

compelled to appear and depose as provided by this section, in the

same manner as witnesses may be compelled to appear and testify in

court.

"Sec. 864. Every person deposing as provided in the preceding

section [R.S. Sec. 863] shall be cautioned and sworn to testify the

whole truth, and carefully examined.

"His testimony shall be reduced to writing or typewriting by the

officer taking the deposition, or by some person under his personal

supervision, or by the deponent himself in the officer's presence,

and by no other person, and shall, after it has been reduced to

writing or typewriting, be subscribed by the deponent. [As amended

May 23, 1900, ch. 541, 31 Stat. 182.]

"Sec. 865. Every deposition taken under the two preceding

sections [R.S. Secs. 863, 864] shall be retained by the magistrate

taking it, until he delivers it with his own hand into the court

for which it is taken; or it shall, together with a certificate of

the reasons as aforesaid of taking it and of the notice, if any,

given to the adverse party, be by him sealed up and directed to

such court, and remain under his seal until opened in court. But

unless it appears to the satisfaction of the court that the witness

is then dead, or gone out of the United States, or to a greater

distance than one hundred miles from the place where the court is

sitting, or that, by reason of age, sickness, bodily infirmity, or

imprisonment, he is unable to travel and appear at court, such

deposition shall not be used in the cause."

R.S. Secs. 863 to 865, as amended, quoted above, were applicable

to admiralty proceedings only. Proceedings in bankruptcy and

copyright are governed by rule 26 et seq. of Federal Rules of Civil

Procedure. See also Rules of Bankruptcy Procedure set out in the

Appendix to Title 11, Bankruptcy.

-End-

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28 USC Sec. 1781 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 117 - EVIDENCE; DEPOSITIONS

-HEAD-

Sec. 1781. Transmittal of letter rogatory or request

-STATUTE-

(a) The Department of State has power, directly, or through

suitable channels -

(1) to receive a letter rogatory issued, or request made, by a

foreign or international tribunal, to transmit it to the

tribunal, officer, or agency in the United States to whom it is

addressed, and to receive and return it after execution; and

(2) to receive a letter rogatory issued, or request made, by a

tribunal in the United States, to transmit it to the foreign or

international tribunal, officer, or agency to whom it is

addressed, and to receive and return it after execution.

(b) This section does not preclude -

(1) the transmittal of a letter rogatory or request directly

from a foreign or international tribunal to the tribunal,

officer, or agency in the United States to whom it is addressed

and its return in the same manner; or

(2) the transmittal of a letter rogatory or request directly

from a tribunal in the United States to the foreign or

international tribunal, officer, or agency to whom it is

addressed and its return in the same manner.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 948; Pub. L. 88-619, Sec. 8(a),

Oct. 3, 1964, 78 Stat. 996.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 653 (R.S. Sec. 875;

Feb. 27, 1877, ch. 69, Sec. 1, 19 Stat. 241; Mar. 3, 1911, ch. 231,

Sec. 291, 36 Stat. 1167).

Word "officer" was substituted for "commissioner" to obviate

uncertainty as to the person to whom the letters or commissioned

may be issued.

The third sentence of section 653 of title 28, U.S.C., 1940 ed.,

providing for admission of testimony "so taken and returned"

without objection as to the method of return, was omitted as

unnecessary. Obviously, if the method designated by Congress is

followed, it cannot be objected to.

The last sentence of section 653 of title 26, U.S.C., 1940 ed.,

relating to letters rogatory from courts of foreign countries, is

incorporated in section 1782 of this title.

The revised section extends the provisions of section 653 of

title 28, U.S.C., 1940 ed., which applied only to cases wherein the

United States was a party or was interested, so as to insure a

uniform method of taking foreign depositions in all cases.

Words "courts of the United States" were inserted to make certain

that the section is addressed to the Federal rather than the State

courts as obviously intended by Congress.

Changes were made in phraseology.

AMENDMENTS

1964 - Pub. L. 88-619 substituted provisions authorizing the

Department of State to transmit a letter rogatory or request by a

foreign or international tribunal, or by a tribunal in the United

States, to the tribunal, officer or agency in the United States or

its foreign or international counterpart, to whom addressed, and to

return it after execution, and providing that this section does not

preclude direct transmission of letters rogatory or requests

between interested tribunals, officers or agencies of foreign,

international and of United States origin, for provisions

authorizing United States ministers or consuls, whenever a United

States court issues letters rogatory or a commission to take a

deposition, to receive the executed letters or commissions from

foreign courts or officers, endorse them with the place and date of

receipt and any change in the deposition, and transmit it to the

clerk of the issuing court in the same manner as his official

dispatches, in text and "Transmittal of letter rogatory or request"

for "Foreign witnesses" in section catchline.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 22 section 7423.

-End-

-CITE-

28 USC Sec. 1782 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 117 - EVIDENCE; DEPOSITIONS

-HEAD-

Sec. 1782. Assistance to foreign and international tribunals and to

litigants before such tribunals

-STATUTE-

(a) The district court of the district in which a person resides

or is found may order him to give his testimony or statement or to

produce a document or other thing for use in a proceeding in a

foreign or international tribunal, including criminal

investigations conducted before formal accusation. The order may be

made pursuant to a letter rogatory issued, or request made, by a

foreign or international tribunal or upon the application of any

interested person and may direct that the testimony or statement be

given, or the document or other thing be produced, before a person

appointed by the court. By virtue of his appointment, the person

appointed has power to administer any necessary oath and take the

testimony or statement. The order may prescribe the practice and

procedure, which may be in whole or part the practice and procedure

of the foreign country or the international tribunal, for taking

the testimony or statement or producing the document or other

thing. To the extent that the order does not prescribe otherwise,

the testimony or statement shall be taken, and the document or

other thing produced, in accordance with the Federal Rules of Civil

Procedure.

A person may not be compelled to give his testimony or statement

or to produce a document or other thing in violation of any legally

applicable privilege.

(b) This chapter does not preclude a person within the United

States from voluntarily giving his testimony or statement, or

producing a document or other thing, for use in a proceeding in a

foreign or international tribunal before any person and in any

manner acceptable to him.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 949; May 24, 1949, ch. 139, Sec.

93, 63 Stat. 103; Pub. L. 88-619, Sec. 9(a), Oct. 3, 1964, 78 Stat.

997; Pub. L. 104-106, div. A, title XIII, Sec. 1342(b), Feb. 10,

1996, 110 Stat. 486.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Secs. 649-653, 701, 703, 704

(R.S. Secs. 871-875, 4071, 4073, 4074; Feb. 27, 1877, ch. 69, Sec.

1, 19 Stat. 241; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167;

June 25, 1936, ch. 804, 49 Stat. 1921).

Sections 649-652 of title 28, U.S.C., 1940 ed., applied only to

the District of Columbia and contained detailed provisions for

issuing subpoenas, payment of witness fees and procedure for

ordering and taking depositions. These matters are all covered by

Federal Rules of Civil Procedure, Rules 26-32.

Provisions in sections 649-652 of title 28, U.S.C., 1940 ed.,

relating to the taking of testimony in the District of Columbia for

use in State and Territorial courts were omitted as covered by

section 14-204 of the District of Columbia Code, 1940 ed., and

Rules 26 et seq., and 46 of the Federal Rules of Civil Procedure.

Only the last sentence of section 653 of title 28, U.S.C., 1940

ed., is included in this revised section. The remaining provisions

relating to depositions of witnesses in foreign countries form the

basis of section 1781 of this title.

Sections 701, 703, and 704 of title 28, U.S.C., 1940 ed., were

limited to "suits for the recovery of money or property depending

in any court in any foreign country with which the United States

are at peace, and in which the government of such foreign country

shall be a party or shall have an interest."

The revised section omits this limitation in view of the general

application of the last sentence of section 653 of title 28,

U.S.C., 1940 ed., consolidated herein. The improvement of

communications and the expected growth of foreign commerce will

inevitably increase litigation involving witnesses separated by

wide distances.

Therefore the revised section is made simple and clear to provide

a flexible procedure for the taking of depositions. The ample

safeguards of the Federal Rules of Civil Procedure, Rules 26-32,

will prevent misuse of this section.

The provisions of section 703 of title 28, U.S.C., 1940 ed., for

punishment of disobedience to subpoena or refusal to answer is

covered by Rule 37(b)(1) of Federal Rules or Civil Procedure.

The provisions of section 704 of title 28, U.S.C., 1940 ed., with

respect to fees and mileage of witnesses are covered by Rule 45(c)

of Federal Rules of Civil Procedure.

Changes were made in phraseology.

1949 ACT

This amendment corrects restrictive language in section 1782 of

title 28, U.S.C., in conformity with original law and permits

depositions in any judicial proceeding without regard to whether

the deponent is "residing" in the district or only sojourning

there.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subsec. (a),

are set out in the Appendix to this title.

-MISC2-

AMENDMENTS

1996 - Subsec. (a). Pub. L. 104-106 inserted ", including

criminal investigations conducted before formal accusation" after

"proceeding in a foreign or international tribunal" in first

sentence.

1964 - Pub. L. 88-619 substituted provisions which empowered

district courts to order residents to give testimony or to produce

documents for use in a foreign or international tribunal, pursuant

to a letter rogatory, or request, of a foreign or international

tribunal or upon application of any interested person, and to

direct that the evidence be presented before a person appointed by

the court, provided that such person may administer oaths and take

testimony, that the evidence be taken in accordance with the

Federal Rules of Civil Procedure unless the order prescribes using

the procedure of the foreign or international tribunal, that a

person may not be compelled to give legally privileged evidence,

and that this chapter doesn't preclude a person from voluntarily

giving evidence for use in a foreign or international tribunal, for

provisions permitting depositions of witnesses within the United

States for use in any court in a foreign country with which the

United States was at peace to be taken before a person authorized

to administer oaths designated by the district court of the

district where the witness resides or is found, and directing that

the procedure used be that generally used in courts of the United

States, in text, and "Assistance to foreign and international

tribunals and to litigants before such tribunals" for "Testimony

for use in foreign countries" in section catchline.

1949 - Act May 24, 1949, struck out "residing" after "witness",

and substituted "judicial proceeding" for "civil action" after "to

be used in any".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 22 section 7423.

-End-

-CITE-

28 USC Sec. 1783 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 117 - EVIDENCE; DEPOSITIONS

-HEAD-

Sec. 1783. Subpoena of person in foreign country

-STATUTE-

(a) A court of the United States may order the issuance of a

subpoena requiring the appearance as a witness before it, or before

a person or body designated by it, of a national or resident of the

United States who is in a foreign country, or requiring the

production of a specified document or other thing by him, if the

court finds that particular testimony or the production of the

document or other thing by him is necessary in the interest of

justice, and, in other than a criminal action or proceeding, if the

court finds, in addition, that it is not possible to obtain his

testimony in admissible form without his personal appearance or to

obtain the production of the document or other thing in any other

manner.

(b) The subpoena shall designate the time and place for the

appearance or for the production of the document or other thing.

Service of the subpoena and any order to show cause, rule,

judgment, or decree authorized by this section or by section 1784

of this title shall be effected in accordance with the provisions

of the Federal Rules of Civil Procedure relating to service of

process on a person in a foreign country. The person serving the

subpoena shall tender to the person to whom the subpoena is

addressed his estimated necessary travel and attendance expenses,

the amount of which shall be determined by the court and stated in

the order directing the issuance of the subpoena.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 949; Pub. L. 88-619, Sec. 10(a),

Oct. 3, 1964, 78 Stat. 997.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Secs. 711, 712, and 713

(July 3, 1926, ch. 762, Secs. 1-3, 44 Stat. 835).

Word "resident" was substituted for "or domiciled therein." (See

reviser's note under section 1391 of this title.)

Words "or any assistant or district attorney acting under him,"

after "Attorney General" in section 712 of title 28, U.S.C., 1940

ed., were omitted, since, in any event, the approval of the

Attorney General would be required. (See section 507 of this

title.)

Changes were made in phraseology.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subsec. (b),

are set out in the Appendix to this title.

-MISC2-

AMENDMENTS

1964 - Pub. L. 88-619 amended section generally, and among other

changes, authorized a United States court to issue a subpoena to

require the appearance of a witness before it or a person or body

designated by it, and the production of documents or other tangible

evidence, when necessary in the interest of justice, and in other

than criminal actions or proceedings, if the court finds, in

addition, that its not possible to obtain admissible evidence in

any other manner, and provided that the procedure relating to the

subpoena shall be in accordance with the Federal Rules of Civil

Procedure, and struck out provisions which authorized the issuance

of a subpoena when a personally notified individual failed to

appear to testify pursuant to letter rogatory, or failed to answer

any question he would have to answer in any examination before the

court or if such person was beyond United States jurisdiction and

the testimony was desired by the Attorney General in a criminal

proceeding, provided that the subpoena issue to any United States

consul, that the consul make personal service of the subpoena and

of any order, rule, judgment or decree, that he make return of the

subpoena and tender expenses to the witness, and substituted

"person" for "witness" in section catchline.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1784 of this title.

-End-

-CITE-

28 USC Sec. 1784 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 117 - EVIDENCE; DEPOSITIONS

-HEAD-

Sec. 1784. Contempt

-STATUTE-

(a) The court of the United States which has issued a subpoena

served in a foreign country may order the person who has failed to

appear or who has failed to produce a document or other thing as

directed therein to show cause before it at a designated time why

he should not be punished for contempt.

(b) The court, in the order to show cause, may direct that any of

the person's property within the United States be levied upon or

seized, in the manner provided by law or court rules governing levy

or seizure under execution, and held to satisfy any judgment that

may be rendered against him pursuant to subsection (d) of this

section if adequate security, in such amount as the court may

direct in the order, be given for any damage that he might suffer

should he not be found in contempt. Security under this subsection

may not be required of the United States.

(c) A copy of the order to show cause shall be served on the

person in accordance with section 1783(b) of this title.

(d) On the return day of the order to show cause or any later day

to which the hearing may be continued, proof shall be taken. If the

person is found in contempt, the court, notwithstanding any

limitation upon its power generally to punish for contempt, may

fine him not more than $100,000 and direct that the fine and costs

of the proceedings be satisfied by a sale of the property levied

upon or seized, conducted upon the notice required and in the

manner provided for sales upon execution.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 949; Pub. L. 88-619, Sec. 11,

Oct. 3, 1964, 78 Stat. 998.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Secs. 714, 715, 716, 717,

and 718 (July 3, 1926, ch. 762, Secs. 4-8, 44 Stat. 836).

Sections 714-718 of title 28, U.S.C., 1940 ed., were

consolidated, since all relate to contempt by a witness served

personally in a foreign country.

The last sentence omits specific reference to section 118 of

title 28, U.S.C., 1940 ed., now incorporated in section 1655 of

this title, which provides for the method of opening judgments

rendered on publication of process. (See also Rule 60(b) of the

Federal Rules of Civil Procedure.)

Changes were made in phraseology.

AMENDMENTS

1964 - Pub. L. 88-619 amended section generally, and among other

changes, authorized the court to order a person to show cause for

failing to produce a document or other thing in subsec. (a),

provided that a copy of the order to show cause shall be served in

accordance with section 1783(b) of this title, and struck out

provisions requiring the marshal making levy or seizure to forward

to any United States consul in the country where the witness may

be, a copy of the order and a request for its personal service, and

to cause publication of the order in the district where the issuing

court sits, in subsec. (c), and struck out provisions in subsec.

(d) permitting any judgment rendered upon service by publication

only to be opened for answer within one year.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1783 of this title.

-End-

-CITE-

28 USC Sec. 1785 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 117 - EVIDENCE; DEPOSITIONS

-HEAD-

Sec. 1785. Subpoenas in multiparty, multiforum actions

-STATUTE-

When the jurisdiction of the district court is based in whole or

in part upon section 1369 of this title, a subpoena for attendance

at a hearing or trial may, if authorized by the court upon motion

for good cause shown, and upon such terms and conditions as the

court may impose, be served at any place within the United States,

or anywhere outside the United States if otherwise permitted by

law.

-SOURCE-

(Added Pub. L. 107-273, div. C, title I, Sec. 11020(b)(4)(B)(i),

Nov. 2, 2002, 116 Stat. 1828.)

-MISC1-

PRIOR PROVISIONS

A prior section 1785, act June 25, 1948, ch. 646, 62 Stat. 950,

provided a privilege against self-incrimination on examination

under letters rogatory, prior to repeal by Pub. L. 88-619, Sec.

12(a), Oct. 3, 1964, 78 Stat. 998. See section 1782(a) of this

title.

EFFECTIVE DATE

Section applicable to a civil action if the accident giving rise

to the cause of action occurred on or after the 90th day after Nov.

2, 2002, see section 11020(c) of Pub. L. 107-273, set out as a note

under section 1369 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1441 of this title.

-End-