§ 1.321   Use of depositions at the hearing.

   (a) No inference concerning the admissibility of a deposition in evidence
   shall  be  drawn  because  of  favorable  action on the notice to take
   depositions.

   (b) Except as provided in this paragraph and in § 1.319, objection may be
   made at the hearing to receiving in evidence any deposition or part thereof
   for any reason which would require the exclusion of the evidence if the
   witness were then present and testifying.

   (1) Objections to the competency of a witness, or the competency, relevancy
   or materiality of testimony are waived by failure to make them before or
   during  the  taking  of depositions if (and only if) the ground of the
   objection is one which might have been obviated or removed if presented at
   that time.

   (2) Objection on the ground of privilege is waived by failure to make it
   before or during the taking of depositions.

   (c) A party shall not be deemed to make a person his own witness for any
   purpose  by taking his deposition. The introduction in evidence of the
   deposition  or  any  part  thereof  for any purpose other than that of
   contradicting or impeaching the deponent makes the deponent the witness of
   the party introducing the deposition, but this shall not apply to the use by
   an adverse party of a deposition as described in paragraph (d)(2) of this
   section. At the hearing any party may rebut any relevant evidence contained
   in a deposition whether introduced by him or by any other party.

   (d) At the hearing (or in a pleading), any part or all of a deposition, so
   far  as  admissible,  may be used against any party who was present or
   represented at the taking of the deposition or who had due notice thereof,
   in accordance with any one of the following provisions:

   (1) Any deposition may be used by any party for the purpose of contradicting
   or impeaching the testimony of deponent as a witness.

   (2) The deposition of a party or of any one who at the time of taking the
   deposition  was an officer, director, or managing agent of a public or
   private corporation, partnership or association which is a party may be used
   by an adverse party for any purpose.

   (3) To the extent that the affirmative direct case of a party is made in
   writing pursuant to § 1.248(d), the deposition of any witness, whether or not
   a party, may be used by any party for any purpose, provided the witness is
   made available for cross-examination. In all cases, the deposition of a
   witness, whether or not a party, may be used by any party for any purpose if
   the presiding officer finds: (i) That the witness is dead; or (ii) that the
   witness is out of the United States, unless it appears that the absence of
   the witness was procured by the party offering the deposition; or (iii) that
   the  witness  is unable to attend or testify because of age, sickness,
   infirmity, or imprisonment; or (iv) upon application and notice, that such
   exceptional circumstances exist as to make it desirable in the interest of
   justice and with due regard to the importance of presenting the testimony of
   witnesses orally in open hearing, to allow the deposition to be used.

   (4) If only part of a deposition is offered in evidence by a party, an
   adverse party may require him to introduce all of it which is relevant to
   the part introduced, and any party may introduce any other parts.

   (5) Substitution of parties does not affect the right to use depositions
   previously taken; and, when an action in any hearing has been dismissed and
   another  action involving the same subject matter is afterward brought
   between the same parties or their representatives or successors in interest,
   all depositions lawfully taken and duly filed in the former action may be
   used in the latter as if originally taken therefor.

   [ 33 FR 463 , Jan. 12, 1968, as amended at  41 FR 14874 , Apr. 8, 1976]

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