(a) Permitted. Any deposition may be recorded by electronic audio or audio-video means without a stenographic record, but a party may cause a stenographic record of the deposition to be made at the party's own expense. Except as otherwise provided by this Rule, the rules of this chapter apply to videotape and audiotape depositions.

(b) Deferral. On motion of a party made prior to the deposition, the court may order that an electronic audio or audio-video deposition intended for use at trial be postponed or begun subject to being continued, on such terms as are just, if the court finds that the deposition is to be taken before the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent or other means, for cross-examination of the deponent.

(c) Physical Arrangements. The area to be used for recording testimony shall be suitable in size, have adequate lighting, and be reasonably quiet. The physical arrangements shall not be unduly suggestive or otherwise prejudicial.

(d) Operator. The operator of the recording equipment shall be competent to set up, operate, and monitor the equipment in accordance with this Rule. The operator may be an employee of the attorney taking the deposition unless the operator is also the officer before whom the deposition is being taken.

(e) Operation of the Equipment. The operator shall not distort the appearance or demeanor of participants in the deposition by the use of camera or sound recording techniques.

(f) Procedure. The deposition shall begin by the operator stating on camera or on the electronic audio or audio-video recording: (1) the operator's name and address, (2) the name and address of the operator's employer, (3) the date, time, and place of the deposition, (4) the caption of the case, (5) the name of the deponent, and (6) the name of the party giving notice of the deposition. The officer before whom the deposition is taken shall identify himself or herself and swear the deponent on camera or on the electronic audio or audio-video recording. At the conclusion of the deposition, the operator shall state on camera or on the electronic audio or audio-video recording that the deposition is concluded. When more than one tape, disk or similar electronic data unit of recording is used, the operator shall announce the end of each unit and the beginning of the next unit of audio or audio-video recording. A deposition recorded under this subsection shall be timed by a clock or indicator that shall show on camera or on the recording whenever possible each hour, minute, and second of the deposition.

(g) Objections. The officer shall keep a log of all objections made during the deposition and shall reference them to the time shown on the clock on camera or to the indicator on the audio or audio-video recording. Evidence objected to shall be taken subject to the objection. A party intending to offer a deposition recorded by audio or audio-video means in evidence shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered within sufficient time to allow for objections to be made and acted upon before the trial or hearing. Objections to all or part of the deposition shall be made in writing within sufficient time to allow for rulings on them and for editing of the electronic audio or audio-video recording before the trial or hearing. The court may permit further designations and objections as justice may require. In excluding objectionable testimony or comments or objections of counsel, the court may order that an edited copy of the electronic audio or audio-video recording be made or that the person playing the recording at trial suppress the objectionable portions of the recording. In no event, however, shall the original of the recording be affected by any editing process.

Committee note: This section supplements Rule 2-415(g).

(h) Certification. After the deposition has been taken, the officer shall review the electronic audio or video recording promptly and attach to it a certificate that the recording is a correct and complete record of the testimony given by the deponent.

(i) Custody. The attorney for the party taking the deposition or any other person designated by the court or agreed to by the parties represented at the deposition shall take custody of the electronic audio or audio-video recording and be responsible for its safeguarding, permit its viewing or hearing by a party or the deponent, and provide a copy of the electronic audio-video recording or its audio portion or of the audiotape, upon the request and at the cost of a party or the deponent. An electronic audio or audio-video recording offered or admitted in evidence at a trial or hearing shall be marked and retained as an exhibit.

Source: This Rule is derived from former Rule 410 with the exception of section (g), which is derived from former Rule 409 c 2 and 413 c.