Depositions - Authority to Take Testimony
A deposition is a formal legal proceeding in which a witness provides sworn testimony outside of the courtroom. Depositions are used to gather evidence, preserve a witness’s statements, and prepare for trial. The testimony is taken under oath, recorded, and may be used later in court. During a deposition, the witness (called the deponent) must answer questions truthfully, just as they would before a judge. The purpose is to establish facts, clarify details, and document information relevant to a legal case. Under the Massachusetts Rules of Civil Procedure, a Notary Public is empowered to take depositions.
Pursuant to state law, a commissioned notary public has specific statutory powers related to depositions:
A deposition is a formal legal proceeding in which a witness provides sworn testimony outside of the courtroom. Depositions are used to gather evidence, preserve a witness’s statements, and prepare for trial. The testimony is taken under oath, recorded, and may be used later in court. During a deposition, the witness (called the deponent) must answer questions truthfully, just as they would before a judge. The purpose is to establish facts, clarify details, and document information relevant to a legal case. Under the Massachusetts Rules of Civil Procedure, a Notary Public is empowered to take depositions.
Pursuant to state law, a commissioned notary public has specific statutory powers related to depositions:
- Issuing Deposition Subpoenas and/or Notice of Deposition: A Massachusetts notary public is authorized to issue subpoenas requiring a witness to appear before the notary and give testimony at a deposition.
- Hearing Testimony: A notary public may also administer oaths (or affirmations) and take sworn testimony during a deposition. When a witness testifies before a notary, the statements carry the same legal weight as if they were made in court.
- Lying While Under Oath: Any person who gives false testimony during a deposition—after being sworn in by a notary public—is subject to perjury charges, a serious criminal offense under Massachusetts law. Providing false information under oath can result in fines, criminal prosecution, and other legal consequences.
Rule 28 of the Massachusetts Rules of Civil Procedure
Persons Before Whom Depositions may be Taken FAQs
Persons Before Whom Depositions may be Taken FAQs
Where can a deposition be taken within the United States?
A deposition inside the U.S. must be taken before an officer authorized to administer oaths. This includes:
- A notary public authorized under U.S. law or the law of the state where the deposition occurs
- A person appointed by the court handling the case
- A person designated by the parties under Rule 29
Who can take a deposition in a foreign country?
Depositions outside the U.S. may be taken in three ways:
- Before a person authorized to administer oaths in that country (under local law or U.S. law)
- Before a person commissioned by the court — the commission itself gives them authority to administer oaths and take testimony
- Through a letter rogatory, which is a formal request from a U.S. court to a foreign authority
Does the notice or commission need to name the person taking the deposition?
It can list the person by name or by descriptive title (for example, “a qualified notary public in Madrid”).
How is a letter rogatory addressed?
It may be addressed simply to: “The Appropriate Authority in [Country Name].”
Is evidence obtained through a letter rogatory valid?
Yes. Evidence obtained this way is not excluded just because:
- It isn’t a verbatim transcript
- The testimony wasn’t taken under oath
- The procedure differed from U.S. deposition rules
Who is not allowed to take a deposition?
A deposition cannot be taken before anyone who is:
- A relative of a party
- An employee of a party
- An attorney for a party
- A relative or employee of an attorney
- Financially interested in the case
Rule 30 of the Massachusetts Rules of Civil Procedure
Depositions Upon Oral Examination FAQs
Depositions Upon Oral Examination FAQs
What is a deposition?
A deposition is sworn testimony taken outside of court. A court reporter records everything, and the testimony can be used later in the case.
Do I need court permission to take a deposition?
Usually no. Most depositions can be scheduled without court approval. Permission is only needed in special situations (very early in the case, low‑value cases, or if the witness is in prison).
How much notice is required?
At least 7 days’ written notice must be given to all parties.
What information must be in the notice?
The notice must include:
- Date, time, and location
- Name of the witness (or a description if unknown)
- Any documents the witness must bring
Can a deposition be done remotely (Zoom)?
Yes. Massachusetts allows remote video depositions by default. The notice just needs to state that it will be remote.
Who can attend a remote deposition?
Only the same people who could attend an in‑person deposition. Everyone must be identifiable on the video platform.
How is the deposition recorded?
A stenographic transcript is always prepared unless everyone agrees otherwise. It may also be video‑recorded.
Can a witness refuse to answer?
Only to protect a legal privilege or if the court has ordered limits.
Does the witness get to review the transcript?
Yes. The witness can review it, make corrections, and sign it.
What happens if the party who scheduled the deposition doesn’t show up?
They may have to pay the other side’s reasonable expenses and attorney’s fees.
Can video depositions be used at trial?
Yes. Video depositions can be used in the same way as written transcripts, and the party using the video must provide the playback equipment.
Download the Massachusetts Rules of Civil Procedure
Click here to download the Mass.R.Civ.P. in PDF
