Rule 28.Persons Before Whom Depositions May Be Taken

Part V: Discovery · Last amended 2014 · Last verified July 16, 2026

In one sentenceRule 15-6-28 says who may officiate a deposition inside or outside the United States, disqualifies anyone with a personal or financial stake in the case, including certain contractual court-reporting arrangements, from serving as the officer, and voids any deposition taken in violation of the disqualification rules.

Full Text of Rule 15-6-28

Text sizeJump to: (a) (b) (c)

(a) Depositions taken within United States. Within the United States 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 this state, 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 §§ 15-6-30, 15-6-31 and 15-6-32 includes a person appointed by the court or designated by the parties under § 15-6-29.

(b) Depositions taken in foreign country. In a foreign country, depositions may be taken:

(1) Pursuant to any applicable treaty or convention;

(2) Pursuant to a letter of request (whether or not captioned a letter rogatory);

(3) 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

(4) Before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony.

A commission or a letter of request 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 of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request 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 of request may be addressed “To the Appropriate Authority in (here name the country).” When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request 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 this chapter.

(c) Disqualification to take deposition 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.

An employee, as described above, includes a person who has a contractual relationship with a person or entity interested in the outcome of the litigation, including anyone who may ultimately be responsible for payment to provide reporting or other court services, and a person who is employed part-time or full-time under contract or otherwise by a person who has a contractual relationship with a party to provide reporting or other court services.

The officer taking the deposition, or any other person with whom such officer has a principal and agency relationship, shall not enter into an agreement for reporting service which does any of the following:

(1) Requires or allows the court reporter reporting the deposition to relinquish control of an original deposition transcript and copies of the transcript before it is certified and delivered to the custodial attorney as required in § 15-6-30(f)(1);

(2) Requires the court reporter to provide special financial terms or other services that are not offered at the same time and on the same terms to all other parties in the litigation, or in any way offers any incentives or rewards to the attorneys, parties to the litigation, or to anyone else who has an interest in the litigation;

(3) Gives an exclusive monetary or other advantage to any party;

(4) Compromises the authenticity of the record or the impartiality of the court reporter, or that may result in the appearance that the authenticity of the record or the impartiality of the court reporter has been compromised;

(5) Allows a person, other than the court reporter or firm, to establish the rates charged by the court reporter or firm;

(6) Includes the court reporter, entity or firm providing or arranging for court reporting services on any list of preferred providers of court reporting services that is maintained by any person, entity or firm that has entered into an oral or written contractual agreement for more than one case with any attorney, party to an action, insurance company, third-party administrator, or any other person or entity that has a financial interest in the case;

(7) Requires the noticing attorney to utilize a specified court reporter, entity or firm, or requires the noticing attorney to act in a manner that may lead to violation of any provision; or

(8) Restricts said attorney from reimbursement for such court reporting services.

Contracts for court reporting services for federal, state, or local governments and subdivisions thereof are excluded. Negotiating or bidding reasonable fees, equal to all parties, by the attorneys or the parties, with the court reporter of their choice, on a case-by-case basis is not prohibited.

These provisions may not be waived by disclosure, agreement, stipulation, or by any other means unless a request for waiver is contained in the notice of deposition.

Any deposition taken in violation of these provisions shall be considered void.

End

Plain-English Summary

Subdivision (a) covers depositions taken within the United States or its territories: they must be taken before an officer authorized to administer oaths under South Dakota law, federal law, or the law of the place of examination, or before a person the court appoints, who then has the power to administer oaths and take testimony. The term officer, wherever it appears in §§ 15-6-30, 15-6-31, and 15-6-32, includes such a court-appointed person or one the parties designate under § 15-6-29.

Subdivision (b) covers depositions taken abroad, which may proceed under an applicable treaty or convention, by letter of request, on notice before a locally authorized officer, or before a person the court commissions. A commission or letter of request issues on application, notice, and just terms, without any need to show that another method would be impracticable, and both may be used in the same case. Evidence obtained through a letter of request is not excluded merely because it is not a verbatim transcript, was not taken under oath, or otherwise departs from the requirements for domestic depositions.

Subdivision (c) disqualifies anyone who is a relative, employee, attorney, or counsel of a party, or a relative or employee of such an attorney or counsel, or who has a financial interest in the action, from taking the deposition. That disqualification reaches contractual court-reporting arrangements: the officer, and anyone with a principal-agency relationship to the officer, may not enter into a reporting agreement that lets a court reporter relinquish control of the transcript before certification, that offers special terms or incentives to one side, that gives any party an exclusive advantage, that compromises or appears to compromise the record’s authenticity or the reporter’s impartiality, that lets an outside party set the reporter’s rates, that places the reporter on an exclusive preferred-provider list tied to a litigation-interested party, that requires an attorney to use a specified reporter, or that restricts reimbursement for reporting services. Government contracts for reporting services are excluded from these limits, and parties remain free to negotiate reasonable, equally available fees case by case. These protections cannot be waived except through a request contained in the notice of deposition, and a deposition taken in violation of them is void.

Frequently Asked Questions

Who is allowed to administer the oath and preside at a deposition in South Dakota?

Rule 15-6-28(a) requires a domestic deposition to be taken before an officer authorized to administer oaths under South Dakota law, federal law, or the law of the place of examination, or before a person appointed by the court.

Can a deposition be taken outside the United States?

Yes. Rule 15-6-28(b) allows a foreign deposition under an applicable treaty or convention, by letter of request, on notice before a locally authorized officer, or before a person the court commissions.

Can a relative of one of the parties serve as the officer taking a deposition?

No. Rule 15-6-28(c) disqualifies a relative, employee, attorney, or counsel of any party, or a relative or employee of such counsel, from taking the deposition.

Can a court reporting company give one side’s attorney an exclusive financial arrangement?

No. Rule 15-6-28(c) lists prohibited reporting agreements, including ones that give an exclusive monetary or other advantage to any party or that offer special terms not equally available to all parties.

What happens if a deposition is taken before a disqualified officer?

Rule 15-6-28(c) states that any deposition taken in violation of these disqualification provisions is considered void.

Amendment History

(a)SDC 1939, §§ 36.0510, 36.0530; SL 1959, ch 237; SD RCP, Rule 28(a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 86-3.

(b)SDC 1939 & Supp 1960, § 36.0510; SD RCP, Rule 28 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; 2006, ch 293 (Supreme Court Rule 06-19).

(c)SDC 1939 & Supp 1960, § 36.0510; SD RCP, Rule 28 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2000, ch 256 (Supreme Court Rule 00-2); 2014, ch 262 (Supreme Court Rule 14-03), eff. July 1, 2014.

Source & verification. Rule text and History are reproduced verbatim from the South Dakota Codified Laws, published by the South Dakota Legislative Research Council. Last verified July 16, 2026. · Official source

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