(a) Without leave of Court De bene esse depositions shall be taken within the discovery
deadlines established in the action. A de bene esse deposition taken solely for the purpose of
authenticating records may be taken after the discovery deadline without leave of Court if the
deposition is taken more than 28 days before the date scheduled for the start of the trial (or trial
period, if applicable).
(b) With leave of Court. Except as provided in subsection (a) de bene esse depositions
require leave of Court. A party seeking leave of Court to take a de bene esse deposition shall
have the burden of establishing to the Court’s satisfaction that leave should be granted. Factors
the Court may consider in determining whether or not leave should be granted include, without
limitation, the following:
(1) the importance of the witness’ testimony to the movant’s case;
(2) the effect of allowing the deposition on the other parties to the case, including upon
their preparation for trial;
(3) the effect of allowing the deposition upon the administration of justice;
Case: 3:25-mc-00003-RAM-GAT Document #: 10-1 Filed: 01/30/26 Page 22 of 44
(4) whether the witness’ lack of availability for trial was unexpected or known prior to
the close of discovery; and
(5) whether the inability to compel the witness’s testimony via subpoena was
unexpected or known prior to the close of discovery.
(c) Expenses. In the interest of fairness, the Court may require the moving party to pay the
expenses and fees of the non-moving party(ies).
(d) Offer of Testimony. A party who obtains leave of Court to take a de bene esse
deposition may not offer live testimony from that witness in any part of its case; however, the
moving party is not precluded from cross-examining the witness should another party offer live
testimony from the witness.
