GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	2

HOUSE BILL 872
Committee Substitute Favorable 4/30/97

Short Title:  Amend Civil Procedure Rules.	(Public)

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Sponsors:

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Referred to:  

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April 7, 1997

A BILL TO BE ENTITLED
AN ACT TO AMEND VARIOUS RULES OF CIVIL PROCEDURE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 1A-1, Rule 26 (b)(4) reads as rewritten:
"(4)	Trial Preparation; Experts. – Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
a.	1.	A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
1a.	Subject to  the provisions of subdivision (b)(4)b. and subsection (c) of this rule, a party may take the deposition of an expert under the provisions of Rule 30 when the expert has been identified as a person another party expects to call as an expert witness at trial.  The expert may be compelled to produce evidence under the provisions of Rule 45, including facts or data underlying any opinion that may be offered as evidence under Rule 705 of the North Carolina Rules of Evidence.
2.	Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)b. of this rule, concerning fees and expenses as the court may deem appropriate.
b.	Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivision (b)(4)a2 of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)a2 of this rule the court may require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert."
Section 2.  G.S. 1A-1, Rule 30(c) reads as rewritten:
"(c)	Examination and cross-examination; record of examination; oath; objections.
(1)	Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(b). The person before whom the deposition is to be taken shall put the deponent on oath and shall personally, or by someone acting under his or her direction and in his or her presence, record the testimony of the deponent. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed.
(2)	Any objection to evidence during a deposition shall be stated concisely and in a nonargumentative and nonsuggestive manner.  A party may instruct a deponent not to answer for any one or more of the following reasons only: when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d)(2) of this rule.  All objections made at the time of the examination to the qualifications of the person before whom the deposition is taken, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted upon the deposition by the person before whom the deposition is taken. Subject to any limitations imposed by orders entered pursuant to Rule 26(c) or 30(d), evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party who served the notice of taking the deposition, and that party shall transmit them to the person before whom the deposition is to be taken who shall open them at the deposition, propound them to the witness and record the answers verbatim."
Section 3.  G.S. 1A-1, Rule 30(d) reads as rewritten:
"(d)	Motion to terminate or limit examination. – 
(1)	By order or local rule, the court may limit the time permitted for conducting a deposition.  The court shall allow additional time when needed for a fair examination of the deponent or when a deponent or other party impedes or delays the examination.  If the court finds such an impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose an appropriate sanction upon the persons responsible for that conduct, including reasonable costs and attorneys' fees incurred by a party as a result of that conduct.
(2)	At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, a judge of the court in which the action is pending or any judge in the county where the deposition is being taken may order before whom the examination is being taken to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of a judge of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion."
Section 4.  G.S. 1A-1, Rule 46 reads as rewritten:
"Rule 46. Objections and exceptions.
(a)	Rulings on admissibility of evidence. –
(1)	When there is objection to the admission of evidence on the ground that the witness is for a specified reason incompetent or not qualified or disqualified, it shall be deemed that a like objection has been made to any subsequent admission of evidence from the witness in question. Similarly, when there is objection to the admission of evidence involving a specified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning.
(2)	If there is proper objection to the admission of evidence and the objection is overruled, the ruling of the court shall be deemed excepted to by the party making the objection. If an objection to the admission of evidence is sustained or if the court for any reason excludes evidence offered by a party, the ruling of the court shall be deemed excepted to by the party offering the evidence.
(3)	No objections are necessary with respect to questions propounded to a witness by the court or a juror but it shall be deemed that each such question has been properly objected to and that the objection has been overruled and that an exception has been taken to the ruling of the court by all parties to the action.
(b)	Pretrial rulings, interlocutory orders, trial rulings, and other orders not directed to the admissibility of evidence. –  With respect to pretrial rulings, interlocutory orders, trial rulings, and other orders of the court not directed to the admissibility of evidence, formal objections and exceptions are unnecessary and are deemed to be preserved until entry of final judgment.  In order to preserve an exception to any such ruling or order or to the court's failure to make any such ruling or order, it shall be sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party's objection to the action of the court or makes known the action that the party desires the court to take and the party's grounds for this action; and if a party has no opportunity to object or except to a ruling or order at the time it is made, the absence of an objection or exception does not thereafter prejudice that party.  In order to preserve these rulings and orders for appellate review, a party shall present to the court a timely request, objection, or motion, stating the specific grounds for the ruling that the party desires the court to make, and shall obtain a ruling upon the party's request, objection, or motion.
(c)	."
Section 5.  This act becomes effective October 1, 1997, and applies to causes of action commencing on or after that date.