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There are different theories on the best and worst tactics for deposition practice. Even if best practices are followed and favorable deposition testimony is obtained, the shifting sands of litigation might prevent using that testimony at trial. The parties to litigation may change between the filing of a Complaint and trial. This can be problematic if a party joins the case after significant discovery occurs. Often, some of these problems are relieved by permitting the newly joined party time to redepose the witnesses it believes are necessary.
For an example of the potential complications, assume the star witness in the case was deposed out of state and gave testimony very favorable to your client. A new party later joins the case, obtains a transcript of deposition 1, and is allowed to redepose the star witness. In deposition 2, the star witness testifies that he read the transcript of deposition 1 to prepare and did not wish to make any changes to that testimony. The star witness’s testimony from deposition 2 is consistent with deposition 1 but not nearly as clear, concise, or persuasive. At the time of trial, the star witness will not attend voluntarily and is beyond subpoena power. Your client wants to use deposition 1. The new party objects and states that only deposition 2 can be used. What happens?
Using Depositions at Trial
If the witness cannot be subpoenaed to appear, Federal Rule of Civil Procedure 32 likely governs whether deposition 1 may be used at trial. Among other conditions, a deposition may be used against a party if “the party was present or represented at the taking of the deposition or had reasonable notice of it. . . .” Rule 32(a)(1)(A). Assuming the other conditions are satisfied, does Rule 32 permit deposition 1 to be used at trial? Was the new party “present or represented at the taking of the deposition or had reasonable notice of it. . .”?
One preliminary analytical distinction is important. In the hypothetical above, the star witness was never joined as a party, but sometimes the star witness does become a party. Where a witness is deposed and later joins as a party, some courts have ruled that the determination as to who is a “party” is made at the time of trial. Codeiro v. Levasseau, 112 F.R.D. 209, 210 (D.R.I. 1986);Brown v. Daniel Realty Co., 976 A.2d 300, 312–13 (Md. 2009) (construing similar state rule of civil procedure); Rojhani v. Meagher, 22 P.3d 554, 559–60 (Colo. App. 2000) (same).
Federal courts construing Federal Rule of Civil Procedure 32(a) appear to strictly construe Rule 32’s requirements restricting the use of a deposition to “the party was present or represented at the taking of the deposition or had reasonable notice of it. . . .” For instance, in Hoover v. Switlik Parachute Co., 663 F.2d 964, 966 (9th Cir. 1981), certain depositions were inadmissible at trial “for Switlik did not have an opportunity to cross-examine the deponents.” The depositions could be equated, however, to affidavits and used to support summary judgment.
Other courts have ruled similarly. In Mid-West National Life Insurance Co. of Tennessee v. Breton, 199 F.R.D. 369, 371 (N.D. Fla. 2001), the plaintiff sued defendant 1, took his deposition, and then added defendant 2. The plaintiff then settled with defendant 1 and sought to admit his deposition testimony at trial against defendant 2. The plaintiff was not permitted to admit defendant 1’s testimony. See also Hewitt v. Hutter, 432 F. Supp. 795, 799 (W.D. Va. 1977) (“This [deposition] testimony, however, is inadmissible under the Federal Rules of Evidence because the plaintiffs were not given notice of such deposition nor were they provided with an opportunity to cross-examine” the witness.). The overriding concern is that the newly added party did not have an opportunity to cross-examine the now absent deponent.
Exceptions to the Rule
Yet, there are two potential exceptions to this bright-line rule. The first exception involves whether the deposition was taken under adversarial circumstances. For instance, a party in Ikerd v. Lapworth, 435 F.2d 197, 205–6 (7th Cir. 1970), argued that Rule 32 applied and certain depositions could not be used against him. The court disagreed.
Although it is generally the rule that a deposition is not admissible as to one not having the opportunity to be represented at its taking, the presence of an adversary with the same motive to cross-examine the deponent and identity of issues in the case in which the deposition was taken with the one in which it is sought to be used provide a well-recognized exception to the rule. In such case the purpose of Rule 26(d)—to ensure that the deposition is taken under adversarial circumstances —is substantially satisfied. Since counsel for Ikerd was present at the taking of both of the depositions here in question and there is substantial identity of factual and legal issues involved in the two cases, we conclude that the exception to the rule is applicable.
This exception has been applied by many other courts. Even so, the mere fact that a deposition was taken in an adversarial setting is not automatically sufficient if the interests of the parties present are not substantively similar to the non-party. This analysis factored into the Northern District Court of Florida’s decision in Mid-West National Life Insurance Co. of Tennessee v. Breton, in which the court disallowed the use of the deposition testimony.
The second exception holds that Rule 32’s restrictions may not apply when the deposition is to be used for impeachment. “[W]here a deposition is not used as substantive evidence, but rather for the limited purpose of impeaching the deponent as a witness, the witness’ responses in the deposition may be admitted as prior inconsistent statements even if the opposing party was not present or represented at the deposition and did not have notice of its taking.” Appel v. Sentry Life Ins. Co., 739 P.2d 1380, 1382–83 (Colo. 1987).
Applying all of this to the hypothetical above, it is not enough to merely take a dynamite deposition. The deposition needs to be admissible, and that may depend on who is a party at the time of trial.
This post was originally written for and published in the ABA’s Pretrial Practice & Discovery Committee’s Spring 2014 newsletter released on June 18, 2014.
About the Author
Michael Lowry is a lawyer in the Las Vegas office of Thorndal Armstrong Delk Balkenbush & Eisinger. He maintains a litigation practice in a variety of areas including professional liability, commercial transportation, premises liability, and several others.
© Copyright 2014 Michael Lowry. Compelling Discovey Blog. All rights reserved.