IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *

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          Petitions for amendments of existing sections of the South Dakota Codified Laws, repeals and adoption of new rules having been filed with the Court, and the Court having determined that the proposed amendments, repeal and proposed new rules should be noticed for hearing, now therefore,

          NOTICE IS HEREBY GIVEN THAT ON FEBRUARY 16, 2006, at 9:00 A.M., C.S.T., at the Courtroom of the Supreme Court in the Capitol Building, Pierre, South Dakota, the Court will consider the following:

          1. AMENDMENT OF SDCL 15-6-6(a). Computation of time.

    In computing any period of time prescribed or allowed by this chapter, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday.  When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule "legal holiday" includes those holidays listed in § 1-5-1.

Service by facsimile transmission must be completed by 5:00 o'clock p.m., receiver's time, on a weekday, which is not a legal holiday, or service shall be deemed to be made on the following weekday, which is not a legal holiday.

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          2. AMENDMENT OF SDCL 15-6-6(d). Time for motion-affidavits.

A written motion, other than one which may be heard ex parte and notice of the hearing thereof or an order to show cause shall be served not later than five ten days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion and, except as otherwise provided in § 15-6-59(b), opposing affidavits may be served not later than one five day before the hearing, unless the court permits them to be served at some other time.

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          3. AMENDMENT OF SDCL 15-6-7(b). Motions and other papers.

(1)  An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(2)  The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by this chapter.

(3)  Exhibits and other attachments to motions are subject to the provisions of Rule 11 and the protective provisions of Rule 26(c). § 15-6-26(c).

(4)          Unless otherwise directed by the Court, where a brief is served in support of a motion, the brief or affidavit must be served at least ten days prior to the hearing.  A response brief or affidavit, if any, is to be served at least five (5) days prior to the hearing and the movant may thereafter submit a reply brief or affidavit at least two (2) days prior to the hearing.

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          4. AMENDMENT OF SDCL 15-6-11(a). Signature of attorney or party.  Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions.

 (a) Signature.  Every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's his individual name, or, if the party is not represented by an attorney, shall be signed by the party.  whose address shall be stated.  A party who is not represented by an attorney shall sign his pleading, motion or other paper and state his address.  Each paper shall state the signer's address and telephone number, if any.  Unless Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit.  An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.  The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion and exhibits or attachments thereto, or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for an improper purpose, such as to harass, embarrass another party or person, or to cause unnecessary delay or needless increase in the cost of litigation.  If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

 (b) Representations to Court.  By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

 (1)  it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

 (2)  the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

 (3)  the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

 (4)  the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c)Sanctions.  If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

                        (1)  How Initiated.

(A) By Motion.  A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b).  It shall be served as provided in § 15-6-5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.  If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion.  Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative.  On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2)   Nature of Sanctions; Limitations.  A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.  Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3)    Order.  When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

(d)Inapplicability to Discovery.  Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of § 15-6-26 through 37.

(e)Appeal to Supreme Court-Award of Attorney Fees and Costs.  The Supreme Court shall consider all appeals pursuant to this section without any presumption of the correctness of the trial court's findings of fact and conclusions of law.  Reasonable attorney fees and costs shall be awarded to the successful party on appeal.

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          5. REPEAL OF SDCL 15-6-11(b). 15-6-11(b) Improper signing Sanctions

     If a pleading, motion, exhibits, or attachments thereto, or other paper is signed or filed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed or filed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

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          6. REPEAL OF SDCL 15-6-11(c). 15-6-11(C) Findings of fact and conclusions of law Final order

     The court shall make findings of fact and conclusions of law for every order entered pursuant to this section.  Upon conclusion of the case or controversy, an order entered pursuant to this section shall be considered a final order and is appealable as a matter of right under § 15-26A-3.

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7. AMENDMENT OF SDCL 15-6-12(a). Time for presenting defenses and objections.

  A defendant shall serve his the answer within thirty days after the service of the complaint upon him defendant, except when otherwise provided by statute or rule.  A party served with a pleading stating a cross-claim against him shall serve an answer thereto within twenty days after the service upon him.  The plaintiff shall serve his a reply to a counterclaim in the answer within twenty days after service of the answer or, if a reply is ordered by the court, within twenty days after service of the order, unless the order otherwise directs.  The service of a motion permitted under § 15-6-12 alters these periods of time as follows, unless a different time is fixed by order of the court:

(1)  If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action;

(2)  If the court grants a motion for a more definite statement, the responsive pleading shall be served within ten days after the service of the more definite statement;

(3)  If an appeal is taken from an order sustaining a motion to dismiss and such order is thereafter reversed, the responsive pleading shall be served within twenty days after the judgment or order of reversal is filed in the trial court.

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          8. AMENDMENT OF SDCL 15-6-12(b). Manner of presenting defenses and objections.

     Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(1)  Lack of jurisdiction over the subject matter;
(2)  Lack of jurisdiction over the person;
(3)  Insufficiency of process;
(4)  Insufficiency of service of process;
(5)  Failure to state a claim upon which relief can be granted;
(6)  Failure to join a party under § 15-6-19.
A motion making any of these defenses shall be made before pleading if a further pleading is permitted.  No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.  If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he the party may assert at the trial any defense in law or fact to that claim for relief.  If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in § 15-6-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56.

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          9. AMENDMENT OF SDCL 15-6-12(e). Motion for more definite statements. 

    If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he the party may move for a more definite statement before interposing his responsive pleading.  The motion shall point out the defects complained of and the details desired.  If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

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         10. AMENDMENT OF SDCL 15-6-23.1 Derivative actions by shareholders unincorporated associations.

     In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege
(1) That the plaintiff was a shareholder or member at the time of the transaction of which he complains or that his share or membership thereafter devolved on him by operation of law, and
(2) That the action is not a collusive one to confer jurisdiction on a court of the state which it would not otherwise have.
     The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.

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         11. AMENDMENT OF SDCL 15-6-26(b). Scope of discovery.

    Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1)  In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The frequency or extent of use of the discovery methods set forth in § 15-6-26(a) shall be limited by the court if it determines that:

        (A)

(i)  the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

(iii) discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy limitations on the party's resources, and the importance of the issues at stake in the litigation.

The court may act upon its own initiative after reasonable notice or pursuant to a motion under § 15-6-26(c).

(2)  Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.

(3)  Trial preparation: materials. Subject to the provisions of subdivision (4) of this section, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (1) of this section and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his such other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his the party’s case and that he the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

   A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of subdivision 15-6-37(a)(4) apply to award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(4)  Trial preparation: experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)

 (i) 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.

(ii) Upon motion, the court may order further discovery by  other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (4)(C) of this section, concerning fees and expenses as the court may deem appropriate.

(B)  A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in § 15-6-35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C)  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 subdivisions (4)(A)(ii) and (4)(B) of this section; and (ii) with respect to discovery obtained under subdivision (4)(A)(ii) of this section the court may require, and with respect to discovery obtained under subdivision (4)(B) of this section the court shall 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.

(5)  Claims of Privilege or Protection of Trial Preparation Materials.  When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

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         12. AMENDMENT OF SDCL 15-6-26(c). Protective Orders. Upon motion by a party or by the person from whom discovery is sought or has been taken, or other person who would be adversely affected, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending, on matters relating to a deposition, interrogatories, or other discovery, or alternatively, the court in the circuit where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1)  That the discovery not be had;

(2)  That the discovery may be had only on specified terms and conditions, including a designation of the time and place;

(3)  That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4)  That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5)  That discovery be conducted with no one present except persons designated by the court;

(6)  That a deposition after being sealed be opened only by order of the court;

(7)  That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

(8)  That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;

(9)  That depositions, interrogatories, admissions, other discovery, documents, and exhibits attached to motions, or portions of such documents, be sealed unless and until opened at the direction of the court.

     If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of subdivision 15-6-37(a)(4) apply to the award of expenses incurred in relation to the motion.

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         13. AMENDMENT OF SDCL 15-6-26(e). Supplementation of

responses. A party who has responded to a request for discovery with a response that was complete when made is under no a duty to supplement his or correct the response to include information thereafter acquired if ordered by the court or in the following circumstances:  , except as follows

(1)  A party is under a duty seasonably to supplement at appropriate intervals the party’s his response to a discovery request authorized under subdivision (a) if the party learns that in some material respect the response is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.  With respect to testimony of an expert from whom a report is required the duty extends both to information contained in the report and to information provided through a deposition of the expert. with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony

(2)  A party is under a duty reasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

(3)  A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

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         14. AMENDMENT OF SDCL 15-6-27(a). Depositions before action.

(1) Petition.  A person who desires to perpetuate his the person’s own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in any county which would be the proper place of trial of such matter. The petition shall be entitled in the name of the petitioner and shall show:

(aA)    That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought;

(bB)    The subject matter of the expected action and his the petitioner’s interest therein;

(cC)    The facts which he the petitioner desires to establish by the proposed testimony and his the petitioner’s reasons for desiring to perpetuate it;

(dD)    The names or a description of the persons he the petitioner expects will be adverse parties and their addresses so far as known; and

(eE)    The names and addresses of the persons to be examined and the substance of the testimony which he the petitioner expects to elicit from each;

and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

(2)  Notice and Service.  The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty days before the date of hearing the notice shall be served either within or without the state in the manner provided in § 15-6-4(d) for service of summons, but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise and shall appoint, for persons not served in the manner provided in § 15-6-4(d), an attorney who shall represent them, and in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of § 15-6-17(c) apply.

(3)  Order and Examination.  If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with this chapter; and the court may make orders of the character provided for by §§ 15-6-34 and 15-6-35. For the purpose of applying this chapter to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

(4)  Use of Deposition.  If a deposition to perpetuate testimony is taken under this chapter or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, or the courts of the United States, it may be used in any action involving the same subject matter subsequently brought in a court of this state, in accordance with the provisions of § 15-6-32(a).

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    15. AMENDMENT OF SDCL 15-6-27(b). Depositions pending appeal. If an appeal has been taken from a judgment of a trial court of record or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in such court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall show:

(1)  The names and addresses of the persons to be examined and the substance of the testimony which he the party expects to elicit from each;

(2)  The reasons for perpetuating their testimony.

     If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by §§ 15-6-34 and 15-6-35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this chapter for depositions taken in pending actions.

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         16. AMENDMENT OF SDCL 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)

(3)(1) 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

(4)(2) Before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his 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.

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         17. AMENDMENT OF SDCL 15-6-30(a). When depositions may be taken.

     After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of thirty days after service of the summons and complaint upon any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (2) of § 15-6-30(b).

     The attendance of witnesses may be compelled by subpoena as provided in § . The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.  The deposition of a person who has already been deposed in the case may only be taken with the consent of the deponent and parties, or by leave of court.

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         18. AMENDMENT OF SDCL 15-6-30(b). Notice of examination-General requirements-Special notice-Nonstenographic Recording-Production of documents and things-Depositions of organization.

(1)  A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him the person or the particular class or group to which he the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

(2)  Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the state, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the thirty-day period, and (B) sets forth facts to support the statement. The plaintiff 's attorney shall sign the notice, and his the attorney’s signature constitutes a certification by him the attorney that to the best of his the attorney’s knowledge, information and belief the statement and supporting facts are true.

If a party shows that when he was served with the service of notice was made under this subdivision he that the party was unable through the exercise of diligence to obtain counsel to represent him the party at the taking of the deposition, the deposition may not be used against him the party.

(3)  The court may for cause shown enlarge or shorten the time for taking the deposition.

(4)  The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at his own expense. Any objections under § 15-6-30(c), any changes made by the witness, his signature identifying the deposition as his own or the statement of the officer that is required if the witness does not sign, as provided in § 15-6-30(e), and the certification of the officer required by § 15-6-30(f) shall be set forth in writing to accompany a deposition recorded by nonstenographic means.

(5)  The notice to a party deponent may be accompanied by a request made in compliance with § for the production of documents and tangible things at the taking of the deposition. The procedure of § shall apply to the request.

(6)  A party may in his the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.

(7)  The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. For the purposes of this subsection and §§ 15-6-28(a), 15-6-37(a)(1), 15-6-37(b)(1) and 15-6-45(d), a deposition taken by telephone such means is taken in the jurisdiction and at the place where the deponent is to answer questions propounded to him.

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         19. AMENDMENT OF SDCL 15-6-30(c). Examination and cross-examination-Record of examination-Oath-Objection.

     Examination and cross-examination of witnesses may proceed as permitted at the trial as provided by law. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his the officer’s direction and in his the officer’s presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision § (b)(4). If requested by one of the parties, the testimony shall be transcribed.

All objections made at time of the examination to the qualifications of the officer taking the deposition, 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 by the officer upon the deposition. 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 taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

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          20. AMENDMENT OF SDCL 15-6-30(d). Motion to terminate or limit examination. As submitted by the Practice Rules Revisions Committee.

(1)  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, the court in which the action is pending or the court in the circuit where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition as provided in § 15-6-26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order 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 subdivision (4) of §(a) may apply to the award of expenses incurred in relation to the motion.

(2)  Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.  A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under § 15-6-30(d)(4).

(3)  Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day or seven hours.  The court must allow additional time consistent with § 15-6-26(b)(2) if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination.

(4)  If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.

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         21. AMENDMENT OF SDCL 15-6-30(d). Motion to terminate or limit examination.  Schedule and Duration: Motion to Terminate or Limit Examination.  As submitted by the South Dakota Trial Lawyers Association.

 (d) 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, the court in which the action is pending or the court in the circuit where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition as provided in § 15-6-26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order 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 subdivision (4) of § 15-6-37(a) may apply to the award of expenses incurred in relation to the motion.

(1)  Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.  A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under § 15-6-30(d)(4).

(2)  Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours.  The court must allow additional time if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination.

(3)  If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.

(4)  At any time during a 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, the court in which the action is pending or the court in the circuit where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in 15-6-26 (c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which the action is pending.  Upon demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order.  The provisions of 15-6-37(a)(4) apply to the award of expenses incurred in relation to the motion

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         22. AMENDMENT OF SDCL 15-6-30(f). Certification and filing by officer-Exhibits-Copies.

(1)  The officer shall certify on the deposition that the witness was duly sworn by him the officer and that the deposition is a true record of the testimony given by the witness.  He This certificate must be in writing and accompany the record of the deposition. The officer shall then securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly send it to the attorney who arranged for the transcript or recording, who must store it under conditions that will protect it against loss, destruction, tampering, or destruction. file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing.  The officers may, in lieu of filing a full page (8.5 x 11”) size deposition, file a reduced page size deposition provided that there are not more than four reduced pages on each regular size page (8.5” x 11”) so filed. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.

(2)  Unless otherwise ordered by the court or agreed by the parties, the officer shall retain stenographic notes of any deposition taken stenographically or a copy of a recording of any deposition taken by any other means. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition transcript or other recording of the deposition to any party or to the deponent.

(3)  The party taking the deposition shall give prompt notice of its filing to all other parties.

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         23. AMENDMENT OF SDCL 15-6-30(g). Failure to attend or to serve subpoena for deposition expenses.

(1)  If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him that party and his that party’s attorney in so attending, including reasonable attorney's fees.

(2)  If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because he that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of reasonable expenses incurred by him that party and his that party’s attorney in

   so attending, including reasonable attorney's fees.

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         24. AMENDMENT OF SDCL 15-6-31(a). Serving questions-Notice

     After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in § . The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.  Deposition by written questions of a person who has already been deposed in the case may only be taken with the consent of the deponent and parties, or by leave of the court.

     A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him the person or the particular class or group to which he the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of subdivision (6) of § (b).

     Within thirty fourteen days after the notice and written questions are served, a party may serve cross-questions upon all other parties. Within ten seven days after being served with cross-questions, a party may serve redirect questions upon all other parties. Within ten seven days after being served with redirect questions, a party may serve recross-questions upon all other parties. The court may for cause shown enlarge or shorten the time.

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         25. AMENDMENT OF SDCL 15-6-31(b). Officer to take responses and prepare record.

     A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by §§ 15-6-30(c), 15-6-30(e), and 15-6-30(f), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him the officer.

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         26. AMENDMENT OF SDCL 15-6-31(c). Reserved.

     When the deposition is filed, the party filing it shall promptly give notice thereof to all other parties.

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         27. AMENDMENT OF SDCL 15-6-32(a). Use of depositions.

     At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had due reasonable 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, or for any other purpose permitted by the South Dakota Rules of Evidence.

(2)  The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under § 15-6-30(b)(6) or 31(a) to testify on behalf of a public or private corporation, limited liability company, partnership, or association or governmental agency which is a party may be used by an adverse party for any purpose.

(3)  The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(A)    that the witness is dead; or

(B)    that the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(C)    that the witness is unable to attend or testify because of age, sickness illness, infirmity, imprisonment, or occupational commitments; if the deposition was taken for purposes of use at the trial in the place of the witness' personal attendance because of such commitments; or

(D)    that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(E)  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 court, 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 the offer or him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state 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.

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         28. AMENDMENT OF SDCL 15-6-33(a). Availability-Procedures for use.

     Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party.  Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

     Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for the objection and shall answer to the extent the interrogatory is not objectionable reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections, if any, within thirty days after the service of the interrogatories, except that a defendant may serve answers or objections within forty-five days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time, or in absence of such order, is agreed to in writing by the parties.  All grounds for an objection to an interrogatory shall be stated with specificity.  Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown. The party submitting the interrogatories may move for an order under § (a) with respect to any objection to or other failure to answer an interrogatory. A party answering interrogatories must set out the interrogatory immediately preceding the answer thereto.

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         29. AMENDMENT OF SDCL 15-6-36(a). Request for ad