(a) Availability. A party or a witness may file a motion requesting the court to order the examination of any person, except the defendant and those excluded by Rule 39(b), by oral deposition under the following circumstances:
(1) a party shows that the person's testimony is material to the case and that there is substantial likelihood that the person will not be available at trial; or
(2) a party shows that the person's testimony is material to the case or necessary to adequately prepare a defense or investigate the offense, that the person was not a witness at the preliminary hearing or at the probable cause phase of the juvenile transfer hearing, and that the person will not cooperate in granting a personal interview; or
(3) a witness is incarcerated for failing to give satisfactory security that the witness will appear and testify as a trial or hearing.
(b) Follow-up Examination. If a witness testifies at a preliminary hearing or probable cause phase of a juvenile transfer hearing, the court may order the person to attend and give testimony at a follow-up deposition if:
(1) the magistrate limited the person's previous testimony under Rule 5.3; and
(2) the person will not cooperate in granting a personal interview.
(c) Motion for Taking Deposition; Notice; Service.
(1) Requirements. A motion to take a deposition must:
(A) state the name and address of the person to be deposed;
(B) show that a deposition may be ordered under (a) or (b);
(C) specify the time and place for taking the deposition; and
(D) designate any nonprivileged documents, photographs, other tangible objects, or electronically stored information that the person must produce at the deposition.
(2) Order. If the court grants the motion, it may modify any of the moving party's proposed terms and specify additional conditions governing how the deposition will be conducted.
(3) Notice and Subpoena. If the court grants the motion, the moving party must notice the deposition in the manner provided in Arizona Rule of Civil Procedure 30(b). The notice must specify the terms and conditions in the court's order granting the deposition. The moving party also must serve a subpoena on the deponent in the manner provided in A.R.S. § 13-4072(A)-(E) or as otherwise ordered by the court.
(d) Manner of Taking.
(1) Generally. Unless this rule provides or the court orders otherwise, the parties must conduct depositions in the manner provided in Rules 28(a) and 30 of the Arizona Rules of Civil Procedure.
(2) Deposition by Written Questions. If the parties consent, the court may order that a deposition be taken on written questions in the manner provided in Rule 31 of the Arizona Rules of Civil Procedure.
(3) Deponent Statement. Before the deposition, a party who possesses a statement of a deponent must make it available to any other party who would be entitled to the statement at trial.
(4) Recording. A deposition may be recorded by someone other than a certified reporter. If someone other than a certified reporter records the deposition, the party taking the deposition must provide every other party with a copy of the recording no later than 14 days after the deposition, or no later than 10 days before trial, whichever is earlier.
(5) Remote Means. The parties may agree or the court may order that the parties conduct the deposition by telephone or other remote means.
(e) The Defendant's Right to Be Present. A defendant has the right to be present at any deposition ordered under (a)(1) or (a)(3). If a defendant is in custody, the moving party must notify the custodial officer of the deposition's time and place. Unless the defendant waives the right to be present, the officer must produce the defendant for the deposition and remain with the defendant until it is completed.
(f) Use. A party may use a deposition in the same manner as former testimony.
Added Aug. 31, 2017, effective Jan. 1, 2018. Amended Aug. 28, 2018, effective Jan. 1, 2019. Amended on an emergency basis Oct. 18, 2018, effective Oct. 24, 2019, adopted on a permanent basis Aug. 27, 2019; amended on an emergency basis, effective Sept. 30, 2021.
16A A. R. S. Rules Crim. Proc., Rule 15.3, AZ ST RCRP Rule 15.3
State Court Rules are current with amendments received through 11/1/21. The Code of Judicial Administration is current with amendments received through 11/1/21.