SCRCP 28

DEPOSITIONS IN OUT-OF-STATE ACTIONS

(a) Within the United States. Within any state or within a territory or insular possession subject to the

jurisdiction of the United States, depositions shall be taken before an officer authorized to administer

oaths by the laws of the United States or of the place where the examination is held, or before a

person appointed by the court in which the action is pending. A person so appointed has power to

administer oaths and take testimony. The term officer as used in Rules 30, 31 and 32 includes a person

appointed by the court or designated by the parties under Rule 29.

(b) In Foreign Countries. In a foreign country, depositions may be taken (1) on notice before a person

authorized to administer oaths in the place in which the examination is held, either by the law thereof

or by the law of the United States, or (2) before a person commissioned by the court, and a person so

commissioned shall have the power by virtue of his commission to administer any necessary oath and

take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued

on application and notice and on terms that are just and appropriate. It is not requisite to the issuance

of a commission or a letter rogatory that the taking of the deposition in any other manner is

impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper

cases. A notice or commission may designate the person before whom the deposition is to be taken

either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority

in (here name the country)." Evidence obtained in response to a letter rogatory need not be excluded

merely for the reason that it is not a verbatim transcript or that the testimony was not taken under

oath or for any similar departure from the requirements for depositions taken within the United States

under these rules.

(c) Disqualification for Interest. No deposition shall be taken before a person who is a relative or

employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or

counsel, or is financially interested in the action.

(d) Depositions or Production in Out-of-State Actions.

(1) When the deposition of a witness or production of documents or other things, is

to be done in this State for use in an out-of-state action or proceeding, an attorney,

licensed to practice law in this State, or the clerk of court, may issue a subpoena,

including a subpoena duces tecum, compelling the attendance of such witness at that

deposition, or the production of documents or other things pursuant to this rule and

subject to all of the requirements of Rule 45 and Rule 11, only after payment of the

filing fee set1 by Administrative Rule, and after filing with the Clerk of Court:

(A) A certified copy of any mandate, writ, or commission issued by a

court of record in any other state, territory, district, or foreign

jurisdiction directing that such deposition be taken or documents or

other things produced; or

(B) a certified copy of a notice or written agreement filed in a court of

record in any other state, territory, district, or foreign jurisdiction

directing that such deposition be taken or documents or other things

produced.

(2) Such witness may be compelled to attend a deposition only in the county where

he resides, where he is employed, or where he transacts his business in person.

(3) Such witness or a party may obtain a protective order pursuant to Rule 26(c) upon

application to the court in the county from which the subpoena is issued.

(4) If such witness fails to obey the subpoena or refuses to answer any question

propounded upon oral examination, the provisions of Rule 37(a) and (b) shall apply,

and the party requesting the deposition shall make application for such order to the

court of the county from which the subpoena was issued.

(5) Such witness is entitled to the same compensation as provided to a witness

pursuant to Rule or statute.

(6) The clerk of court, shall, upon receipt of the above described filing fee, file all

papers received by him pursuant to this Rule.

Note:

Rule 28(a)-(c) is substantially the same as Federal Rule 28. The language of 28(d) is the

same as in Circuit Court Rule 100, with minor changes to conform to the new

organization and rearrangement of these rules.

Note to 1986 Amendment:

This change [to Rule 28(d)(1)] permits the filing fee to be set by administrative rule of

the Supreme Court rather than by amendment of procedural rules.

Note to 1995 Amendment:

Rule 28(d) governing depositions and document production in South Carolina for use

in an out-of-state action is amended to conform to recently revised Rule 45. The

amended rule permits an attorney licensed to practice law in South Carolina or the

clerk of court to issue the subpoena. In addition, as provided in Rule 45(a)(1)(D) the

subpoena may be for the production of documents without the necessity of a

deposition. The filing fee and file the required documents must be filed with the clerk

of the court in the appropriate county before the attorney or the clerk may issue the

subpoena. The attorney is subject to all of the provisions in Rule 11 and Rule 45,

particularly 45(c)(1) regarding the duty to avoid imposing undue burden or expense

on a person subject to the subpoena.

2011 Note:

Rule 28(d) is consistent with the South Carolina Uniform Interstate Depositions and

Discovery Act, which is codified at S.C. Code Ann. § 15-47-100 et seq.

1. By Order dated February 21, 2003, effective March 1, 2003, the filing fee was set at $50.