3. a. TAKING OF DEPOSITION
9-11-27. Depositions before action or pending appeal.
(a) Before action.
(1) Petition. A person who desires to perpetuate such person=s own testimony or that of another person regarding any matter that may be cognizable in any court may file a verified petition in the superior court of the county where the witness resides. The petition shall be entitled in the name of the petitioner and shall show that the petitioner expects to be a party to litigation but is presently unable to bring it or cause it to be brought, the subject matter of the expected action and the petitioner=s interest therein, the facts which the petitioner desires to establish by the proposed testimony and the petitioner=s reasons for desiring to perpetuate it, the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
(2) Notice and service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court at a time and place named therein for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or outside the county in the manner provided for service of summons; but, if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise and shall appoint, for persons not served, an attorney who shall represent them and, in case they are not otherwise represented, shall cross-examine the deponent. The court may make such order as is just requiring the petitioner to pay a reasonable fee to an attorney so appointed. If any expected adverse party is a minor or an incompetent person and does not have a general guardian, the court shall appoint a guardian ad litem.
(3) Order and examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delayof justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken by a certified court reporter, or as otherwise provided by the rules of the Board of Court Reporting, in accordance with this chapter, and the court may make orders of the character provided for by Code Sections 9-11-34 and 9-11-35. For the purpose of applying this chapter to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
(4) Use of deposition. If a deposition to perpetuate testimony is taken under this Code section or if, although not so taken, it would be otherwise admissible under the laws of this state, it may be used in any action involving the same parties and the same subject matter subsequently brought.
(b) Pending appeal. If an appeal has been taken from a judgment of a trial court or before the taking of an appeal if the time therefore has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the trial court. In such case the party who desires to perpetuate the testimony may make a motion in the trial court for leave to take the depositions, upon the same notice and service thereof as if the action were pending in the court. The motion shall show the names and addresses of persons to be examined, the substance of the testimony which the movant expects to elicit from each, and the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Code Sections 9-11-34 and 9-11-35; and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this chapter for depositions taken in actions pending in court.
(c) Perpetuation by action. This Code section does not limit the power of a court to entertain an action to perpetuate testimony. (Ga. L. 1966, p. 609, ‘ 27; Ga. L. 1993, p. 1315, ‘ 2.)
9-11-28. Persons before whom depositions may be taken; disqualification for interest; consent of parties.
(a) Within the United States and its possessions. Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or by the laws of the place where the examination is held or before a court reporter appointed by the court in which the action is pending or, if within this state, before a certified court reporter or as otherwise provided by the rules of the Board of Court Reporting. A person so appointed has power to administer oaths and take testimony.
(b) In foreign countries. In a foreign state or country depositions shall be taken on notice before a secretary ofembassy or legation, consul general, consul, vice-consul, or consular agent of the United States, or before such person or officer as may be appointed by commission or under letters rogatory. A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such directions as are just and appropriate. Officers may be designated in notices or commissions either by name or by descriptive title and letters rogatory may be addressed “To the Appropriate Judicial Authority in (here name the country).”
(c) Disqualification for interest. No deposition shall be taken before a court reporter who is a relative, employee, attorney, or counsel of any of the parties, or who is a relative or employee of such attorney or counsel, or who is financially interested in the action, excepting that a deposition may be taken before a court reporter who is a relative of a party or of an attorney or counsel of a party if all parties represented at the deposition enter their explicit consent to the same upon the record of the deposition. (Ga. L. 1966, p. 609, ‘ 28; Ga. L. 1993, p. 1315, ‘ 3; Ga. L. 1994, p. 1007, ‘ 1.; Ga. L. 1999, p. 848, ‘ 1.)
9-11-29. Stipulations regarding discovery procedure.
Unless the court orders otherwise, the parties may, by written stipulation:
(1) Provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and, when so taken, may be used like other depositions; and
(2) Modify the procedures provided by this chapter for other methods of discovery. (Ga. L. 1966, p. 609, ‘ 29; Ga. L. 1972, p. 510, ‘ 2.)
Editorial note: see Board opinion, BCR 77-3.
9-11-29.1. When depositions and other discovery material must be filed with court; custodian until filing.
(a) Depositions and other discovery material otherwise required to be filed with the court under this chapter shall not be required to be so filed unless:
(1) Required by local rule of court;
(2) Ordered by the court;
(3) Requested by any party to the action;
(4) Relief relating to discovery material is sought under this chapter and said material has not previously been filed order some other provision of this chapter, in which event copies of the material in dispute shall be filed by the movant contemporaneously with the motion for relief; or
(5) Such material is to be used at trial or is necessary to a pretrial or post-trial motion and said material has not previously been filed under some other provision of this chapter, in which event the portions to be used shall be filed with the clerk of the court at the outset of the trial or at the filing of the motion, insofar as their use can be reasonably anticipated by the parties having custody thereof, but a party attempting to file and use such material which was not filed with the clerk at the outset of the trial or at the filing of the motion shall show to the satisfaction of the court, before the court may authorize such filing and use, that sufficient reasons exist to justify that late filing and use and that the late filing and use will not constitute surprise or manifest injustice to any other party in the proceedings.
(b) Until such time as discovery material is filed under paragraphs (1) through (5) of subsection (a) of this Code section, the original of all depositions shall be retained by the party taking the deposition and the original of all other discovery material shall be retained by the party requesting such material, and the person thus retaining the deposition or other discovery material shall be the custodian thereof. (Code 1981, ‘ 9-11-29.1, enacted by Ga. L. 1982, p. 2374, ‘ 1.)
9-11-30. Depositions upon oral examination.
(a) When depositions may be taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under subsection (f) of Code Section 9-11-4, except that leave is not required if a defendant has served a notice of taking deposition or otherwise sought discovery or if special notice is given as provided in paragraph (2) of subsection (b) of this Code section. The attendance of witnesses may be compelled by subpoena as provided in Code Section 9-11-45. The deposition of a person confined in a penal institution may be taken only by leave of court on such terms as the court prescribes.
(b) Notice of examination.
(1) General requirements. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, the means by which the testimony shall be recorded, and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person to be examined or the particular class or group to which he or she belongs. If a subpoena for the production of documentary and tangible evidence is to be served on the person to be examined, the designation of the materials to be produced, as set forth in the subpoena, shall be attached to, or included in, the notice.
(2) Special notice. Leave of court is not required for the taking of a deposition by plaintiff if the notice:
(A) States that the person to be examined is about to go out of the county where the action is pending and more than 150 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless the deposition is taken before expiration of the 30 day period; and
(B) Sets forth facts to support the statement.
The plaintiff’s attorney shall sign the notice, and said attorney=s signature constitutes a certification by him or her that, to the best of his or her knowledge, information, and belief, the statement and supporting facts are true. If a party shows that, when he or she was served with notice under this paragraph, he or she was unable through the exercise of diligence to obtain counsel to represent him or her at the taking of the deposition, the deposition may not be used against such party.
(3) Time requirements. The court may, for cause shown, enlarge or shorten the time for taking the deposition.
(4) Recording of deposition. Unless the court orders otherwise, the testimony at a deposition must be recorded by stenographic means, and may also be recorded by sound or sound and visual means in addition to stenographic means, and the party taking the deposition shall bear the costs of the recording. A deposition shall be conducted before an officer appointed or designated under Code Section 9-11-28. Upon motion of a party or upon its own motion, the court mayissue an order designating the manner of recording, preserving, and filing of a deposition taken by non-stenographic means, which order may include other provisions to assure that the recorded testimony will be accurate and trustworthy. Any party may arrange for a transcription to be made from the recording of a deposition taken by non-stenographic means. With prior notice to the deponent and other parties, any party may designate another method to record the deponent’s testimony in addition to the methods specified by the person taking the deposition. The additional record or transcript shall be made at that party’s expense unless the court otherwise orders. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. Notwithstanding the foregoing provisions of this paragraph, a deposition may be taken by telephone or other remote electronic means only upon the stipulation of the parties or byorder of the court. For purposes of the requirements of this chapter, a deposition taken by telephone or other remote electronic means is taken in the state and at the place where the deponent is to answer questions.
(5) Production of documents and things. The notice to a party deponent may be accompanied by a request made in compliance with Code Section 9-11-34 for the production of documents and tangible things at the taking of the deposition. The procedure of Code Section 9-11-34 shall apply to the request.
(6) Deposition of organization. A party may, in his or her notice, name as the deponent a public or private corporation or a partnership or association or a governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he or she will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This paragraph does not preclude taking a deposition by any other procedure authorized in this chapter.
(c) Examination and cross-examination; record of examination; oath; objections.
(1) Examination and cross-examination of witnesses may proceed as permitted at the trial under the rules of evidence. The authorized officer or court reporter before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the direction and in the presence of the authorized officer or court reporter, record the testimony of the witness.
(2) All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition, and said party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
(3) Unless otherwise ordered by the court or agreed by the parties, the officer shall retain the record of each deposition until the later of (A) five years after the date on which the deposition was taken, or (B) two years after the date of final disposition of the action for which the deposition was taken and any appeals of such action. The officer may preserve the record through storage of the original paper, notes, or recordings or an electronic copy of the notes, recordings, or the transcript on computer disks, cassettes, backup tape systems, optical or laser disk systems or other retrieval systems.
(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 upon 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, the court in which the action is pending or the court in the county where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition as provided in subsection (c) of Code Section 9-11-26. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. Paragraph (4) of subsection (a) of Code Section 9-11-37 applies to the award of expenses incurred in relation to the motion.
(e) Review by witness; changes; signing. If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by paragraph (1) of subsection (f) of this Code section whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed. If the deposition is not reviewed and signed by the witness within 30 days of its submission to him or her, the officer shall sign it and state on the record that the deposition was not reviewed and signed by the deponent within 30 days. The deposition may then be used as fully as though signed unless, on a motion to suppress under paragraph (4) of subsection (d) of Code Section 9-11-32, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(f) Certification and filing by officer; inspection and copying of exhibits; copy of deposition.
(1)(A) The officer shall certify that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. This certificate shall be in writing and accompany the record of the deposition. The officer shall then securely seal the deposition in an envelope marked with the title of the action, the court reporter certification number, and “Deposition of (here insert name of witness)” and shall promptly file it with the court in which the action is pending or deliver it to the party taking the deposition, as the case may be, in accordance with code Section 9-11-29.1.
(B) Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition 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 he or she affords to all parties fair opportunity to verify the copies by comparison with the originals; and, if the person producing the materials requests their return, the officer shall 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. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.
(2) Upon payment of reasonable charges therefore, the officer shall furnish a copy of the deposition to any party or to the deponent.
(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 therewith 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 such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness, because of such failure, does not attend and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.
(h) Form of presentation. Except as otherwise directed by the court, a party offering deposition testimony may offer it in stenographic or non-stenographic form, but if in non-stenographic form, the party shall also provide the court with a transcript of the portions so offered. On request of any party in a case tried before a jury, deposition testimony offered other than for impeachment purposes shall be presented in non-stenographic form, if available, unless the court for good cause orders otherwise. (Ga. L. 1966, p. 609, ‘ 30; Ga. L. 1967, p. 226, ‘ 14; Ga. L. 1972, p. 510, ‘ 3; Ga. L. 1993, p. 1315, ‘ 4; Ga. L. 1996, p. 266, ‘ 1; Ga. L. 2000, p. 1225, ‘ 3.)
9-11-31. Depositions upon written questions.
(a) Serving questions; notice.
(1) After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Code Section 9-11-45. The deposition of a person confined in a penal institution may be taken only by leave of court on such terms as the court prescribes.
(2) A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating the name and address of the person who is to answer them, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs and the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with paragraph (6) of subsection (b) of Code Section 9-11-30.
(3) Within 30 days after the notice and written questions are served, a party may serve cross-questions upon all other parties. Within ten days after being served with cross-questions, a party may serve redirect questions upon all other parties. Within ten days after being served with redirect questions, a party may serve recross-questions upon all other parties. The court may, for cause shown, enlarge or shorten the time.
(b) Officer to take responses and prepare record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by subsections (c), (e), and (f) of Code Section 9-11-30, to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him. (Ga. L. 1966, p. 609, ‘ 31; Ga. L. 1967, p. 226, ‘ 15; Ga. L. 1972, p. 510, ‘ 4.)
9-11-32. Use of depositions in court proceedings; effect of errors and irregularities in depositions.
(a) Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
(2) The deposition of a party or of anyone who, at the time of taking the deposition, was an officer, director, or managing agent or a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31 to testify on behalf of a public or private corporation, a partnership or association, or a governmental agency which is a party may be used by an adverse party for any purpose;
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(A) That the witness is dead;
(B) That the witness is out of the county, unless it appears that the absence of the witness was procured by a party offering the deposition;
(C) That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;
(D) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena;
(E) That because of the nature of the business or occupation of the witness it is not possible to secure his personal attendance without manifest inconvenience to the public or third persons; or
(F) That the witness will be a member of the General Assembly and that the session of the General Assembly will conflict with the session of the court in which the case is to be tried;
(4) The deposition of a witness, whether or not a party, taken upon oral examination, may be used in the discretion of the trial judge, even though the witness is available to testify in person at the trial. The use of the deposition shall not be a ground for excluding the witness from testifying orally in open court; or
(5) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefore.
(b) Objections to admissibility. Subject to paragraph (3) of subsection (d) of this Code section, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(c) Effect of taking or using depositions. A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition; but this shall not apply to the use by an adverse party of a deposition under paragraph (2) of subsection (a) of this Code section. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.
(d) Effect of errors and irregularities in depositions.
(1) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
(2) As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(3) As to taking of deposition.
(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented are waived unless seasonable objection thereto is made at the taking of the deposition.
(C) Objections to the form of written questions submitted under Code Section 9-11-31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized.
(4) As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Code Sections 9-11-30 and 9-11-31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (Ga. L. 1966, p. 609, ‘ 32; Ga. L. 1972, p. 510, ‘ 5; Ga. L. 1984, p. 22, ‘ 9.)
3. b. FOREIGN DEPOSITIONS
24-10-111. How foreign depositions taken.
Whenever any mandate, writ, or commission is issued out of any court of record in any other state, territory, district, or foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness or witnesses in this state, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state. (Ga. L. 1959, p. 311, ‘ 1.)
3. c. DEPOSITIONS TO PRESERVE TESTIMONY IN CRIMINAL PROCEEDINGS
24-10-130. When deposition to preserve testimony in criminal proceedings may be taken; order of court.
(a)(1) At any time after a defendant has been charged with an offense against the laws of this state or an ordinance of any political subdivision or authority thereof, upon motion of the state or the defendant, the court having jurisdiction to try the offense charged may, after notice to the parties, order that the testimony of a prospective material witness of a party be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place.
(2) At any time after a defendant has been charged with an offense of child molestation, aggravated child molestation, or physical or sexual abuse of a child, upon motion of the state or the defendant, the court having jurisdiction to try the offense charged may, after notice to the parties, order that the testimony of any physician whose testimony is relevant to such charge be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place.
(b) The court shall not order the taking of the witness’s testimony, except as provided in paragraph (2) of subsection (a) of this Code section, unless it appears to the satisfaction of the court that the testimony of the witness is material to the case and the witness:
(1) Is in imminent danger of death;
(2) Has been threatened with death or great bodily harm because of the witness’s status as a potential witness in a criminal trial or proceeding;
(3) Is about to leave the state and there are reasonable grounds to believe that such witness will be unable to attend the trial;
(4) Isso sick or infirm as to afford reasonable grounds to believe that such witness will be unable to attend the trial; or
(5) Is being detained as a material witness and there are reasonable grounds to believe that the witness will flee if released from detention.
(c) A motion to take a deposition of a material witness, or a physician as provided in paragraph (2) of subsection (a) of this
Code section, shall be verified and must state:
(1) The nature of the offense charged;
(2) The status of the criminal proceedings;
(3) The name of the witness and an address in Georgia where the witness may be contacted;
(4) That the testimony of the witness is material to the case or that the witness is a physician as provided in paragraph (2) of subsection (a) of this Code section; and
(5) The basis for taking the deposition as provided in subsection (b) of this Code section.
(d) A motion to take a deposition shall be filed in the court having jurisdiction to try the defendant for the offense charged; provided, however, if the defendant is charged with multiple offenses, only the court having jurisdiction to try the most serious charge against the defendant shall have jurisdiction to hear and decide the motion to take a deposition.
(e) The party moving the court for an order pursuant to this Code section shall give not less than one day’s notice of the hearing to the opposite party. A copy of the motion shall be sent to the opposing party or his or her counsel by any means which will reasonably ensure timely delivery including transmission by facsimile or by digital or electronic means. A copy of the notice shall be attached to the motion and filed with the clerk of court.
(f) If the court is satisfied that the examination of the witness is authorized by law and necessary, the court shall enter an order setting a time period of not more than 30 days during which the deposition shall be taken.
(g) On motion of either party, the court may designate a judge who will be available to rule on any objections to the interrogation of the witness or before whom the deposition shall be taken. The judge so designated may be a judge of any court of this state who is otherwise qualified to preside over the trial of criminal cases in the court having jurisdiction over the offense charged. (Code 1933, ‘ 38-1301a; Ga. L. 1980, p. 426, ‘ 1; Ga. L. 1994, p. 1895, ‘ 5; Ga. L. 1995, p. 10, ‘ 24; Ga. L. 1995, p. 1360, ‘ 1; Ga. L. 1996, p. 795, ” 1, 2; Ga. L. 1996, p. 1233, ” 5,6.)
24-10-131. Notice of deposition; presence of defendant at examination; effect of defendant’s failure to appear; child witness.
(a) The party at whose instance a deposition is to be taken shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined.
(b) On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time or change the place for taking the deposition.
(c) The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce the defendant at the examination and keep the defendant in the presence of the witness during the examination unless, after being warned by the judge that disruptive conduct will cause the defendant’s removal from the place where the deposition is being taken, the defendant persists in conduct which would justify exclusion from that place.
(d) A defendant not in custody shall have the right to be present at the examination; but failure of the defendant, absent good cause shown, to appear, after notice and tender of expenses, shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.
(e) Notwithstanding the provisions of subsections (c) and (d) of this Code section, if the witness is a child, the court may order that the deposition be taken in accordance with Code Section 17-8-55. (Code 1933, ‘ 38-1301a, enacted by Ga. L. 1980, p. 426, ‘ 1; Ga. L. 1994, p. 1895, ‘ 6.)
24-10-132. Appointment of counsel; payment of costs and expenses.
(a) If a defendant is financially unable to employ counsel, the court shall appoint counsel as provided in the uniform rules of the courts, unless the defendant elects to proceed without counsel.
(b) Whenever a deposition is taken at the instance of the state, the cost of any such deposition shall be paid by the state in the same manner as is provided by law for the payment of costs in the appellate courts.
(c) Depositions taken at the instance of a defendant shall be paid for by the defendant; provided, however, that, whenever a deposition is taken at the instance of a defendant who is eligible for the appointment of counsel as provided in the uniform rules of the courts, the court shall direct that the reasonable expenses for the taking of the deposition and of travel and subsistence of the defendant and the defendant’s attorney, not to exceed the limits established pursuant to Article 2 of Chapter 7 of Title 45, for attendance at the examination be paid for out of the fine and forfeiture fund of the county where venue is laid. (Code 1933, ‘ 38-1301a, enacted by Ga. L. 1980, p. 426, ‘ 1; Ga. L. 1994, p. 1895, ‘ 7.)
24-10-133. Manner of taking and filing deposition.
Except as provided in Code Section 24-10-137, a deposition shall be taken and filed in the manner provided in civil actions, provided that (1) in no event shall a deposition be taken of a party defendant without his or her consent and (2) the scope of examination and cross-examination shall be such as would be allowed in the trial itself. On request or waiver by the defendant, the court may direct that a deposition be taken on written interrogatories in the manner provided in civil actions. Such request shall constitute a waiver by the defendant of any objection to the taking and use of the deposition based uponits being so taken. If a judge has been designated to rule on objections or to preside over the deposition, objections to interrogation of the witness shall be made to and ruled on by such judge in the same manner as at the trial of a criminal case. (Code 1933, ‘ 38-1301a, enacted by Ga. L. 1980, p. 426, ‘ 1; Ga. L. 1994, p. 1895, ‘ 8.)
24-10-134. Availability to defendant of deponent’s previous statements.
The state shall make available to the defendant, for his examination and use at the taking of the deposition, any statement of the witness being deposed which is in the possession of the state and which the state would be required to make available to the defendant if the witness were testifying at the trial. (Code 1933, ‘ 38-1301a, enacted by Ga. L. 1980, p. 426, ‘ 1.)
24-10-135. Admissibility and use of deposition.
At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if the witness is unavailable. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all ofit which is relevant to the part offered and any party may offer other parts. A witness is not unavailable if the exemption, refusal to testify, claim of lack of memory, inability, or absence of such witnessis due to the procurement or wrongdoing of the party offering the deposition at the hearing or trial for the purpose of preventing the witness from attending or testifying. (Code 1933, ‘ 38-1301a, enacted by Ga. L. 1980, p. 426, ‘ 1; Ga. L. 1994, p. 1895, ‘ 9.)
24-10-136. Objections to admission of deposition.
Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions. (Code 1933, ‘ 38-1301a, enacted by Ga. L. 1980, p. 426, ‘ 1.)
24-10-137. Recordation of deposition.
(a) Any party shall have the right to require that the deposition be recorded and preserved by the use of audio-visual equipment in addition to a stenographic record. The audio-visual recording shall be transmitted to the clerk of the court which ordered the deposition and shall be made available for viewing and copying only to the prosecuting attorney and defendant’s attorney prior to trial. An audio-visual recording made pursuant to this Code section shall not be available for inspection or copying by the public until such audio-visual recording has been admitted into evidence during a trial or hearing in the case in which such deposition is made.
(b) An audio-visual recording made pursuant to this Code section may be admissible at trial or hearing as an alternative to the stenographic record of the deposition.
(c) A stenographic record of the deposition contemplated in this Code section shall be made pursuant to Code Section 9-11-28. (Code 1933, ‘ 38-1301a, enacted by Ga. L. 1980, p. 426, ‘ 1; Ga. L. 1994, p. 1895, ‘ 10.)
24-10-138. Agreement of parties to deposition.
Nothing in this article shall preclude the taking of a deposition, orally or upon written questions, or the use of a deposition by agreement of the parties with the consent of the court. (Code 1981, ‘ 24-10-138, enacted by Ga. L. 1994, p. 1895, ’11.)
24-10-139. Depositions taken only in exceptional circumstances; misuse of procedures.
It is the intent of the General Assembly that depositions shall be taken in criminal cases only in exceptional circumstances when it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at trial. If the court finds that any party or counsel for a party is using the procedures set forth in this article for the purpose of harassment or delay, such conduct may be punished as contempt of court. (Code 1981, ‘ 24-10-139, enacted by Ga. L. 1994, p. 1895, ‘ 11.)