(SCR 06-19)

In the Matter of the Amendment of SDCL 15-6-28(b)




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OF SDCL 15-6-28(b) RULE 06-19
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    A hearing was held on February 16, 2006, at Pierre, South Dakota, relating to the amendment of SDCL 15-6-28(b), and the Court having considered the proposed amendment, the correspondence and oral presentations relating thereto and being fully advised in the premises, now, therefore, it is

    ORDERED that SDCL 15-6-28(b) be and it is hereby amended to read in its entirety as follows:

     15-6-28(b).   Taking depositions in foreign countries. 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);

             (1)(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

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

             (3)      Pursuant to a letter rogatory.

     A commission or a letter rogatory 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 rogatory of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory 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 rogatory 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 rogatory 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.

    IT IS FURTHER ORDERED that this rule shall become effective July 1, 2006.

    DATED at Pierre, South Dakota, this 17th day of March 2006.