To facilitate obtaining a deposition, the hearing office (HO) staff will contact the deponent by telephone, if possible, to determine an appropriate time, manner of appearance (i.e., in person, by audio, by agency video, or by online video), and, if applicable, place for the deposition proceedings. HO staff will document any contact by placing a report of contact (ROC) in the administrative record.

Depositions may be taken before or after an administrative law judge (ALJ) hearing, as deemed necessary by the ALJ.

The ALJ must send the deponent written notice of the time, manner of appearance, and, if applicable, place of the deposition proceedings at least 20 days in advance, with copies to the claimant and the representative. The ALJ will include the following information in, or attached to the notice:

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  A statement of the purpose of the deposition;

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  Any additional information the ALJ deems necessary for the deponent to prepare for the proceedings; and

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  A statement about how the ALJ will document the testimony, such as audio, agency video, online video, speech-to-text technology, or stenography. The party taking the deposition will bear the cost of the recording.

If the ALJ issues a subpoena for the person to testify or for the production of documents (see Hearings, Appeals and Litigation Law (HALLEX) manual HA 01250.078), the requested information must be identified in the notice or in an attachment to the notice. See HALLEX HA 01250.080. HO staff will place copies of the notice in the claim(s) file. For a sample notice, see HALLEX HA 01260.090.

If the claimant or appointed representative, if any, objects to the taking of the deposition, the manner of appearance at the deposition, or to the proposed method for recording the deposition, the objections must be made at least ten (10) days prior to the date of the deposition. The ALJ must rule on the objection in writing, mail the ruling to the claimant or representative, and make the ruling an exhibit in the administrative record. The ALJ must approve an objection to appearing at a deposition by online video.

If the claimant or appointed representative, if any, does not object until the scheduled date of the deposition, see HALLEX HA 01260.022 F below.

If a deponent fails to appear for a deposition, the HO staff will telephone the deponent for an explanation. If the deponent and the ALJ are available on another date, and the ALJ is reasonably certain that the deponent will appear, the HO staff will send a second notice following the procedures in HALLEX HA 01260.022 A and B above. HO staff will document any contact by placing an ROC in the claim(s) file.

If the ALJ determines that the deposition is material to the issues to be decided, the ALJ may issue a subpoena to compel the deponent to appear. See HALLEX HA 01250.078.

The ALJ will take all testimony under oath or affirmation and record the deposition proceedings in the same manner as hearing proceedings. For more information on administering an oath or affirmation, see HALLEX HA 01260.054. The ALJ may take deposition testimony in person, or via audio, agency video, or online video. The ALJ must, on the record:

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  Identify the case and all persons present;

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  State the purpose of the deposition;

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  Identify the date, time, manner of appearance, and, if applicable, place of the deposition; and

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  Identify the name of the deponent.

Claimants and representatives have the same rights during deposition proceedings that they have during hearing proceedings. The claimant and representative may appear at deposition proceedings to question the deponent or to submit written questions for the ALJ to consider asking the deponent. An ALJ will not grant a deponent's request to distort their image or voice (in order to conceal the deponent's identity).

At the conclusion of the deposition, the ALJ will state on the record that the deposition is complete.

The ALJ will proceed with examination of the deponent as would normally be permitted at a hearing. The ALJ will note any objections made at the time of deposition on the record and will either rule on the objections on the record at the hearing or after the deposition in a separate order. Subject to the ALJ's ruling, objections will not prevent the taking of evidence. Rather, the ALJ will take evidence, subject to objections, and note the objection on the record.

The HO staff will prepare a verbatim transcript of the deposition proceedings in duplicate, numbering all pages, except the first, in the center at the top. HO staff will include in the transcript:

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  An identifying fact sheet (see HALLEX HA 01260.093);

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  The text of the deposition; and

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  The transcriber's certification.

The ALJ will mark the deposition transcript and any associated documents as exhibits and will proffer the deposition transcript and any associated documents to the claimant or representative consistent with proffer procedures. See HALLEX HA 01260.091 for a sample exhibit list and HALLEX HA 01270.030 for proffer procedures. HO staff will mark a copy of the proffer letter as an exhibit in the administrative record.

If the claimant or the representative objects to the ALJ admitting the deposition transcript and associated documents into the record as evidence, the ALJ must rule on the objections in writing or on the record at the hearing. If the ALJ issues a written ruling, a copy of the ruling will be made an exhibit to the administrative record and a copy of the ruling will be sent to the claimant or representative.