Cite as FSM v. Skico, Ltd. (III) ,
7 FSM Intrm. 558 (Chk. 1996)

[7 FSM Intrm. 558]




CIVIL ACTION NO. 1995-1012


Richard H. Benson
Associate Justice

Decided:  August 29, 1996

For the Plaintiff:          Teresa K. Zintgraff, Esq.
                       Assistant Attorney General
                       Office of the FSM Attorney General
                       P.O. Box PS-105
                       Palikir, Pohnpei FM 96941

For the Defendant:     Ron Moroni, Esq.
             (Skico)            P.O. Box 1618
                       Kolonia, Pohnpei FM 96941

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Civil Procedure ) Deposition; Evidence ) Hearsay
     In order for a deposition to be admissible a deponent must physically appear before someone who can identify and administer the oath even if the deposition is taken telephonically.  FSM v. Skico, Ltd. (III), 7 FSM Intrm. 558, 559 (Chk. 1996).

[7 FSM Intrm. 559]
*    *    *    *

RICHARD H. BENSON, Associate Justice:
     Before me is Skico's Motion in Limine, which asks that the telephonic deposition of Captain Edy Wahyono, taken July 7, 1996, be ruled inadmissible.  In its Motion in Limine Skico raises several objections to the admissibility of the deposition of Captain Wahyono.  It contends that the deposition is inadmissible because it was not taken before a person in Singapore authorized to administer oaths and preside over a deposition, that Skico was not provided with reasonable notice, and that the conditions it was taken under made it impossible to conduct an effective examination of the witness.

     The only objection that gives me cause for concern is that the deponent did not appear personally before someone in Singapore who then identified him and administered the oath.  I am not bothered by the fact that the court reporter who taped the testimony was not present in Singapore, but was on Pohnpei, or that the person who transcribed the tape had not been in Singapore either.  Further, I believe that the defendant had ample time to prepare for the deposition in that he was prepared to attend an earlier deposition of Captain Wahyono in Singapore that was later canceled, and any difficulties in conducting the examination could be addressed when determining what weight to give the evidence.  What does trouble me is that no one was present in Singapore to identify the deponent and administer the oath there so that the deponent would reasonably expect to be subject to the pains and penalties of perjury in the jurisdiction in which he was present.  Civil Rule 28(b)(1) and (2) (depositions in foreign countries) indicates that a deponent should appear before a person authorized or commissioned to administer oaths.  I also note that Civil Rule 30(b)(7) (telephonic depositions) does not specifically apply to Rule 28(b), but does state that a deposition "is taken where the deponent is to answer questions."

     The government suggests that I "implicitly `commissioned,' the FSM Supreme Court court reporter to administer the oath . . . telephonically" when I granted the government's motion to hold the captain's deposition.  Such an inference is misplaced in light of the relief the government requested from me when it sought to depose the captain.  On July 6, 1996, after hearing the parties' positions, I granted the government's motion, filed July 5, 1996, that a telephonic deposition of the captain could be taken on July 7, 1996.  The primary issue before me was the feasibility of taking the deposition on such short notice and on a Sunday.  I specifically made no ruling on the deposition's admissibility.  The government did not present to me its intention not to have someone present in Singapore to identify and administer the oath to the deponent.

     I conclude that the government's failure to have someone present in Singapore to identify and administer the oath to the deponent and to certify that those steps had been taken requires that I grant Skico's Motion in Limine.  A deponent must physically appear before someone authorized to administer oaths who will certify that the deponent was duly sworn.  Cf. FSM Civ. R. 28, 30(f).  Therefore the captain's deposition may not be used at trial or considered by me in deciding a motion for summary judgment.