Rule 40-56. Definition of Unavailable

(a) ''Unavailable'' as used in Section 40-46 includes situations in which the deponent:

(1) Is exempted by a ruling of the judicial authority on the ground of privilege from testifying concerning the subject matter of his or her deposition;

(2) Persists in refusing to testify concerning the subject matter of his or her deposition despite an order of the judicial authority to do so;

(3) Testifies to a lack of memory of the subject matter of his or her deposition;

(4) Is unable to be present or to testify at a trial or hearing because of his or her death or physical or mental illness or infirmity; or

(5) Is absent from the trial or hearing and the proponent ofhis or herdeposition hasbeen unable to procure his or her attendance by subpoena or by other reasonable means.

(b) A deponent is not unavailable as a witness if his or her exemption, refusal, claim of lack of memory, inability, or absence is the result of the procurement or wrongdoing by the proponent of his or her deposition for the purpose of preventing the witness from attending or testifying.

Committee Notes

(P.B. 1978-1997, Sec. 803.)