§ 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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