C.R.C.P. 28

History

Cross references: For persons authorized to administer oaths or affirmations, see § 24-12-103, C.R.S.; for objections to admissibility, see C.R.C.P. 32(b). COMMITTEE COMMENT Commissions and letters rogatory are unnec- essary when: (1) the deposition is being taken before an officer authorized to administer oaths in Colorado, (2) the Court has appointed a per- son under subsection (a), or (3) when the parties have stipulated to the person pursuant to C.R.C.P. 29. The Federal Rules of Civil Procedure specifi- cally define court-appointed persons or stipu- lated persons as ‘‘officers’’ under rules 30, 31 and 32. The Committee follows this principle but feels that it need not be specifically set forth in the Colorado rule. ANNOTATION I. General Consideration. II. Outside of Colorado. III. Disqualification for Interest. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Notes on Pro- posed Amendments to Colorado Rules of Civil Procedure’’, see 27 Dicta 165 (1950). For ar- ticle, ‘‘Amendments to the Colorado Rules of Civil Procedure’’, see 28 Dicta 242 (1951). For article, ‘‘Depositions and Discovery, Rules 26 to 37’’, see 28 Dicta 375 (1951). For article, ‘‘Depositions and Discovery: Rules 26-37’’, see 23 Rocky Mt. L. Rev. 562 (1951). For article, ‘‘Plaintiff’s Advantageous Use of Discovery, Pre-Trial and Summary Judgment’’, see 40 Den. L. Ctr. J. 192 (1963). For article, ‘‘Taking Evi- dence Abroad for Use in Litigation in Colo- rado’’, see 14 Colo. Law. 523 (1985). For ar- ticle, ‘‘Securing the Attendance of a Witness at a Deposition’’, see 15 Colo. Law. 2000 (1986). For article, ‘‘Alternative Depositions: Practice and Procedure’’, see 19 Colo. Law. 57 (1990). C.R.C.P. 26 to 37 must be construed to- gether along with the requirement that plaintiff establish a prima facie case for punitive dam- ages, as a condition precedent to the plaintiff’s right to discovery of defendant’s financial infor- mation. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Applied in Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981). II. OUTSIDE OF COLORADO. Annotator’s note. Since section (a) of this rule is similar to § 384 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. There is no way by which depositions of witnesses living out of the state can be taken except on due observance of the statutory course; any deviation from the statutory provi- sions on this subject is fatal, and the use of depositions erroneously taken constitutes an er- ror for which a cause has to be reversed. Argen- tine Falls Silver Mining Co. v. Molson, 12 Colo. 405, 21 P. 190 (1889); Gibbs v. Gibbs, 6 Colo. App. 368, 40 P. 781 (1895). A Colorado court does not have jurisdic- tion to compel a witness residing in a foreign state to appear in the foreign jurisdiction and give testimony by deposition and to furnish his personal records at said hearing by virtue of a dedimus issued in Colorado and a subpoena duces tecum issued in the foreign state where the witness is not a party to the suit. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957). This rule which provides for taking depo- sition outside of Colorado of nonresidents not parties to an action in Colorado or served within Colorado is subject to implied limitations of mutual compact or uniform act. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957); Minnesota ex rel. Minnesota Att’y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). No state court or government has author- ity beyond its own borders, each state being sovereign as to its own territory and those re- siding therein. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957); Minnesota ex rel. Minnesota Att’y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). Such recognition as is given Colorado laws or court orders by other states must be based solely upon full faith and credit, comity, con- tract due to uniform acts, or compact. Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957); Minnesota ex rel. Minnesota Att’y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). The matter of lack of jurisdiction cannot be waived, and this defense may be raised at any stage of the proceedings. Solliday v. Dis- trict Court, 135 Colo. 489, 313 P.2d 1000 (1957). Provisions for taking depositions outside the state under this rule do not apply to criminal proceedings. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). III. DISQUALIFICATION FOR INTEREST. Law reviews. For article, ‘‘The Federal Rules from the Standpoint of the Colorado Code’’, see 17 Dicta 170 (1940).