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Use of Deposition Testimony at Trial
Lynne C. Hermle and
Michael Delikat
ORRICK, HERRINGTON & SUTCLIFFE LLP
51 W 52nd Street
New York, NY 10019
+1-212-506-5230
mdelikat@orrick.com
BEIJING • BERLIN • DÜSSELDORF • FRANKFURT • HONG KONG • LONDON • LOS ANGELES • MILAN • MOSCOW • NEW YORK • PARIS
PORTLAND • ROME • SACRAMENTO • SAN FRANCISCO • SEATTLE • SHANGHAI • SILICON VALLEY • TOKYO • WASHINGTON, D.C.© Copyright 2018, Orrick, Herrington & Sutcliffe LLP. All rights reserved. This paper is for informational use only and is not intended to constitute, and does not constitute, legal advice.
I. Introduction
There is a huge gulf between the emphasis trial lawyers place upon the value of
impeachment of witnesses with depositions at trial and the much minimized effect of that
impeachment on a typical jury. There is perhaps a wider gulf between how a transcript should be
used and how a typical trial lawyer uses it.
This paper examines the applicable rules for use of depositions at trial and provides some
practical guidance.
A. Admissibility of Depositions under Federal Rule of Civil Procedure 32
Federal Rule of Civil Procedure 32 governs the use of depositions at trial or other court
proceedings, including hearings on motions. Although subdivision (a)(4)(E) indicates a clear
preference for live testimony, depositions may be introduced as evidence. 1
Under Rule 32, deposition testimony may be used in lieu of live testimony if three
requirements are met. First, the testimony must be otherwise admissible. Second, the party
against whom the testimony is offered must generally have been present or represented at the
taking of the deposition. Third, the deposition testimony must fall into one of several categories,
such as the deposition is being used to impeach the deponent’s credibility; the deponent is an
adverse party; the deponent is unavailable at trial; or there are exceptional circumstances. See
Fed. R. Civ. P. 32(a). Subsection (a)(1) of Rule 32 provides that “all or any part of a deposition
may be used” at a trial, hearing, or proceeding against a party under the following circumstances:
(A) The party had reasonable notice of the deposition or was present or
represented at the deposition;
(B) The deposition testimony would be admissible under the Federal Rules of
Evidence, applied as if the witness were then present and testifying; and
(C) The use of the deposition is permitted under the remaining provisions of Rule
32(a)(2) through (8).
Although Rule 32 carries its own requirements (discussed below) perhaps the most
fundamental limitation contained in the rule is the condition that the deposition testimony must
be admissible under the Federal Rules of Evidence, applied as if the witness were then present
and testifying.
1
Courts have also expressed a preference for live testimony. See, e.g., Salsman v. Witt, 466 F.2d 76 (10th Cir.
1972) (testimony by deposition is less desirable and should ordinarily be used as substitute only if the witness is
unavailable to testify in person).
1B. Admissibility of Depositions in Light of the Hearsay Rule and Other Federal
Rules of Evidence
Deposition transcripts are typically regarded as self-authenticating documents. See Fed.
R. Evid. 903(2). Generally speaking, deposition transcripts are considered an exception to the
“best evidence rule” by operation of Federal Rule of Evidence 1005 and fall within the public
records exception to hearsay contained in Federal Rule of Evidence 803(8).
But simply because a deposition transcript is admissible under the Federal Rules of
Evidence, it does not follow that deposition testimony is likewise admissible. Deposition
testimony must independently satisfy the requirements for admissibility under the Federal Rules
of Evidence: relevancy, authentication, “best evidence,” and hearsay. Parties seeking to prevent
the introduction of deposition testimony at trial will be able to lodge objections on these grounds.
C. Reading the Rules Together
Rule 32 makes explicit references to the Federal Rules of Evidence. For instance,
subsection (a)(2) to Rule 32 states that depositions may be used against any other party or
witness for impeachment purposes. Before it can be assumed that a deposition may be used to
impeach, it is important to cross-check this provision with potentially applicable evidentiary
rules (the hearsay rule generally being the most common). Federal Rule of Evidence
801(d)(1)(A) specifically excludes prior inconsistent statements in depositions used for
impeachment purposes from its definition of hearsay—which means that depositions used in this
manner are presumptively admissible.
Depositions of parties or persons designated by party to testify are admissible for any
purpose under Rule 32(a)(3). This provision parallels Rule 801(d)(2), which states that
admissions of a party-opponent are not included in its definition of hearsay.
Rule 32(a)(4) allows parties to use a deposition “for any purpose” if the court finds that
the circumstances listed in that subsection have been met. These generally deal with situations in
which a witness is considered “unavailable,” but it is important not to confuse these provisions
with Federal Rule of Evidence 804(a), which employs a more stringent definition of
“unavailability” for hearsay purposes. There may be times when a witness might be deemed
“unavailable” under Rule 32 but is not “unavailable” for hearsay purposes. Accordingly, in these
situations, a party seeking to introduce deposition testimony at trial will need to find another
exception to the hearsay rule in order to satisfy Rule 32(a)(1)(B)’s requirement that the
deposition testimony must be admissible under the Federal Rules of Evidence.
II. Use of Deposition Testimony at Trial
A. To Impeach
Generally speaking, when a witness is available to testify at trial, unless one of the
remaining Rule 32 exceptions (for the deposition of a party or party representative or when
“exceptional circumstances” exist) is satisfied, the party seeking to use the witness’s deposition
2will only be able to use it for purposes of impeachment. 2 Impeachment is a valuable tool at trial
and, if properly used, can substantially undermine the credibility of a witness and the weight that
a judge or jury give to his or her testimony.
As described below, there are numerous limitations to the use of deposition transcripts at
trial and numerous objections that opposing counsel can make. Accordingly, counsel seeking to
introduce a deposition transcript at trial should always be aware of how the deposition transcript
might be used to impeach a witness. This will serve as a sort of “backup plan” in the event that
the court will not allow introduction of the transcript for other purposes.
Impeaching a witness using deposition testimony involves three basic steps: (1)
accrediting the deposition transcript, (2) recommitting the witness to the answer that is going to
be impeached, and (3) confronting the witness with his or her deposition testimony.
1. Accrediting the Deposition Transcript
Accreditation refers to the process of providing context for the deposition in order to give
it weight and credibility with the jury. Many jurors will not know what a deposition is. This
means that, for the contradiction between trial and deposition testimony to be meaningful, the
cross-examiner needs to explain the importance of deposition testimony to the jury. The
accreditation process is not necessary when the trier of fact is the judge. Gary S. Gildin, Cross-
Examination at Trial: Strategies for the Deposition, 35 Am. J. Trial Advoc. 471 at 474 (2012).
The main point of the accreditation is to make sure that it is clear to the jury that the deposition
testimony was made under oath, may have been made at a time closer to the events at issue, and
that the witness said he was telling the truth at that time.
2. Recommitting the Witness
Once a jury understands why the witness’s deposition testimony should have been
truthful, the cross-examiner then goes on to highlight the conflict between trial and deposition
testimony. The cross-examiner will need to describe clearly the witness’s testimony on direct
examination (especially if some time has elapsed between the testimony at issue and cross-
examination) and then get the witness to recommit to the earlier trial testimony before disclosing
the inconsistent deposition testimony. Id. at 476-77.
3. Confronting the Witness with Deposition Testimony
After the cross-examiner has recommitted the witness to his trial testimony, the cross-
examiner highlights the inconsistent testimony. This is easier in theory than in practice, and is
almost always where things go wrong. Witnesses often become defensive or evasive when
2
There is a historical basis in case law for this rule as well. See, e.g., Andrews v. Hotel Sherman, Inc., 138 F.2d 524
(7th Cir. 1943); G. E. J. Corp. v. Uranium Aire, Inc., 311 F.2d 749 (9th Cir. 1962); National Screw & Mfg. Co. v.
Voi-Shan Industries, Inc, 347 F.2d 1 (9th Cir. 1965) (pre-trial deposition of witness is not admissible other than to
impeach when witness is himself available to testify). See also Community Counseling Service, Inc. v Reilly, 317
F.2d 239 (4th Cir. 1963) (pre-trial deposition of witness on stand is not admissible as substantive evidence; pre-trial
statement is usable on cross-examination, for purposes of impeachment, to present earlier, contradictory statements,
but is not substantive evidence of truth of extra-judicial statements).
3confronted with inconsistent deposition testimony: “Like fellow members of the animal
kingdom, the stress of being cornered will activate the witness's fight-or-flight response.” Id. at
477. Evasive witnesses may argue that they “don’t remember” what they said at deposition.
Avoid questions that ask the witness to remember or buy into their deposition testimony.
Rather, the cross-examiner should simply ask to show the video transcript, or hand a copy of the
deposition transcript to the witness and ask the witness to refer to a particular portion of the
transcript. Counsel may then read the transcript aloud for the court or, a more risky proposition,
ask the witness to do so. With permission from the court, counsel may also display the transcript
a screen so that the jury can read the transcript while it is read aloud. Counsel should be careful
to narrowly tailor questions to the witness so as to close off any opportunities for the witness to
dispute, question, or attempt to explain any aspect of the deposition testimony. Questions should
be as simple and direct as “Did I read the transcript correctly?” Id. at 477-80.
B. For “Any Purpose”
If the requirements of Rule 32 and the Federal Rules of Evidence are met, counsel should
be able to use deposition testimony “for any purpose.” The Rule creates two categories of
witnesses for whom deposition testimony may potentially be used “for any purpose”:
Parties or Party Representatives. Rule 32(a)(3) states:
“An adverse party may use for any purpose the deposition of a party or anyone
who, when deposed, was the party's officer, director, managing agent, or
designee under Rule 30(b)(6) or 31(a)(4).”
“Unavailable” Witnesses. Rule 32(a)(4) states:
“A party may use for any purpose the deposition of a witness, whether or not a
party, if the court finds:
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the place of hearing or trial or is
outside the United States, unless it appears that the witness's absence was
procured by the party offering the deposition;
(C) that the witness cannot attend or testify because of age, illness, infirmity, or
imprisonment;
(D) that the party offering the deposition could not procure the witness's
attendance by subpoena; or
(E) on motion and notice, that exceptional circumstances make it desirable—in
the interest of justice and with due regard to the importance of live testimony in
open court—to permit the deposition to be used.”
Unavailability and witness location are to be determined at the time the deposition is
offered by a party. Hartman v. United States, 538 F.2d 1336, 1345 (8th Cir. 1976).
4Unlike use of a deposition for the very specific and narrow purpose of impeachment, use
“for any purpose,” by definition, implies that counsel will have broad latitude in how to use a
deposition. However, trial judges are accorded very broad discretion in determining how
transcripts may be used, despite the expansive “for any purpose” language. See, e.g., Lear v
Equitable Life Assur. Soc’y of U.S, 798 F.2d 1128, 1135 (8th Cir. 1986). Moreover, trial courts
“are reluctant to allow the reading into evidence of the …deposition if the witness is available to
testify at trial, and such exclusion is usually deemed harmless error.” Brazos River Auth. v GE
Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006); cf. SanDisk Corp. v Kingston Tech. Co, 863 F.
Supp. 2d 815, 8-17-818 (W.D. Wis. 2012) (overruling objections to use of deposition testimony
for officers and designees).
Courts have observed that the “general purpose” of a Rule 30(b)(6) deposition is
to “permit[ ] the examining party to discover the corporation’s position via a witness designated
by the corporation to testify on its behalf.” Rosenruist-Geestao E Servicos LDA v. Virgin Enters.,
Ltd., 511 F.3d 437, 440 n.2 (4th Cir. 2007); see also Black Horse Lane Assoc., L.P. v. Dow
Chem Corp., 228 F.3d 275, 304 (3d Cir. 2000).
At least one federal appellate court has concluded that the testimony of a Rule 30(b)(6)
witness does not necessarily bind the corporation. A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d
630, 637 (7th Cir. 2001) (nothing in the advisory committee notes indicates that the Rule goes so
far as to absolutely bind a corporate party to its designee’s recollection). However, other courts
disagree. See, e.g., New Jersey v. Sprint Corp., No. 03–2071–JWL, 2010 WL 610671, *1 (D.
Kan. Feb. 19, 2010) (even if a witness’s testimony mirrors that of other officers and directors of
the corporation, a plaintiff still is entitled to tie down the definitive positions of the corporation
itself, rather than that of the individuals who work for it); see also Cipriani v. Dick’s Sporting
Goods, Inc., No. 3:12 CV 910(JBA), 2012 WL 5869818, *2 (D. Conn. Nov. 19, 2012) (the
purpose of a Rule 30(b)(6) witness is to present an organization’s binding position on a topic).
III. Issues in Trial Practice
A. Opposing Party’s Objections
In addition to spelling out requirements for admission and use of deposition testimony at
trial, Rule 32 provides specific grounds upon which the opponent of a deposition may object to
its admissibility. See Fed. R. Civ. P. 32(b) and (d). Some of these objections need to be raised
either as soon as or very soon after the time they are discovered, while other objections may
actually be raised for the first time at trial or at a hearing. These objections can be broken down
into a few distinct categories, which are discussed in turn.
1. Content Objections
Objections based on the grounds stated in Rule 32(d)(3)(A) (dealing with the competency
of the witness or the relevancy of the evidence) and any other objection made possible by
subsection (b), such as hearsay, can be characterized as “content objections.” These objections
are essentially objections to the underlying testimony of the deposition and not objections to the
deposition itself. If a party fails to raise these objections at a deposition, such failure does not
5preclude a party from raising them later at trial (unless the objection is of a nature such that it
could have been remedied if raised at the deposition). 1-32 Federal Civil Procedure Litigation
Manual 32.1.
Parties often fight over whether deposition testimony is cumulative and unnecessary, and
trial courts are expected to consider this concern carefully. See, e.g., JamSport Entm’t, LLC v
Paradama Prods., 2005 WL 14917 at *4 (plaintiff must provide accurate statements of length of
video deposition sections and court will carefully examine segments for cumulativeness).
One common mistake often made with respect to the hearsay objection to a 30(b)(6)
deponent is the argument that testimony is not an admission and is thus hearsay because it does
not address a fact in dispute between the parties in the litigation. For purposes of the admission
exception to hearsay in Rule 801(d)(2), the statement must simply be an admission of facts in the
case. In Re Acceptance Ins. Cos. Sec. Litig., 423 F.2d 899, 905 (8th Cir. 2005).
2. Form Objections
Rule 32(d)(3)(B) contains bases for objection that are based on an “error or irregularity,”
such as the nature of deposition questions or the responsiveness of answers. These “form
objections” are usually addressed by the parties or their attorneys at the deposition itself, and the
failure to raise these objections at the deposition constitutes a waiver of the objection at trial and
on appeal. 1-32 Federal Civil Procedure Litigation Manual 32.1.
3. Procedural Objections
Rule 32 contains a variety of objections that may be considered “procedural.” These
objections are described with greater specificity in subsections (d)(1)-(2), (d)(3)(B)-(C), and
(d)(4) and include defects with respect to the notice for taking a deposition, the method by which
the deposition was recorded, the administration of the oath or affirmation, the conduct of the
parties, the location of the deposition, the qualifications of the officer conducting the deposition,
or the preparation of the transcript or recording of the deposition. Similar to form objections,
procedural objections must be raised in a timely manner at the deposition, when they are
discovered, or within other time limits set forth in the Rule, otherwise they will be waived. 1-32
Federal Civil Procedure Litigation Manual 32.1.
4. Miscellaneous Exceptions
Rule 32(a)(5) sets out two additional grounds for objection. Subsection (a)(5)(A)
provides that, when a party who has received less than 14 days notice of a deposition files a
timely motion for a protective order under Rule 26(c)(1)(B) to cancel or delay the deposition, a
deposition taken before the protective motion is ruled upon shall not be used at trial against the
party that sought the protective order.
The second ground for objection applies to a deposition taken under the "exigent
circumstances exception" described in Rule 30(a)(2)(A)(iii). Such depositions may not be used
at trial against a party if that party was unable through the exercise of due diligence to obtain
6counsel for representation at the deposition. 1-32 Federal Civil Procedure Litigation Manual
32.1.
B. Represented or Present at Deposition
Rule 32(a) requires that for deposition testimony to be admissible against any party, that
party must have been present or represented at taking of deposition or must have had reasonable
notice thereof.
There are two exceptions. See 7 Moore’s Federal Practice – Civil § 32.01. First,
deposition testimony may be used against a party who was not present if another party who was
present had the same motive to develop the testimony. 3 In Mid-West Nat’l Life Ins. Co. v.
Breton, a Florida district court excluded the use of deposition testimony against a defendant not
present at the deposition, even though a co-defendant was present and had an opportunity to
cross-examine the deponent. 199 F.R.D. 369 (N.D. Fla. 2001). The court’s reasoning was that:
Mr. Breton’s deposition cannot properly be admitted by Mid-West,
because Mr. Breton did not have the same motive to develop his testimony at
deposition as North Florida would have had. As a practical matter, attorneys
rarely question their own clients at deposition, or at least do not do so fully, and
with the same motive, as would another party. If Mr. Breton’s attorney wanted to
know what Mr. Breton would testify at trial, the attorney needed only to ask Mr.
Breton privately; the attorney had no reason to inquire on the record in front of
opposing counsel. If there were areas in which [plaintiff] did not explore fully, or
if there were explanations for Mr. Breton’s testimony that [plaintiff] overlooked
or chose not to develop, Mr. Breton’s attorney would have had no reason (or at
least less reason) to address these matters on the record in front of opposing
counsel; Mr. Breton’s attorney could wait to inquire at trial. And if there were
areas on which Mr. Breton could be impeached, Mr. Breton’s attorney surely
would have no reason or inclination to do so. Id. at 371.
The second exception arises where the absent party introduces part of the deposition
testimony for its own purposes. The opposing party would then be entitled to introduce other
portions of the testimony even though the absent part did not have the opportunity to cross-
examine the deponent.
C. What is an “Unavailable” Witness?
Rule 32(a)(4) makes plain that a party can prove unavailability by satisfying any of five
categories. Chao v. Tyson Foods, Inc., 255 F.R.D. 560 (N.D. Ala. 2009). These categories are
discussed below.
3
See, e.g., Hub v. Sun Valley Co., 682 F.2d 776 (9th Cir. 1982) (“Rule 32(a) requires that the prior and present
lawsuits involve the ‘same subject matter’ and the ‘same parties or their representatives or successors in interest.’
These requirements have been construed liberally in light of the twin goals of fairness and efficiency. The accepted
inquiry focuses on whether the prior cross-examination would satisfy a reasonable party who opposes admission in
the present lawsuit. Consequently, courts have required only a substantial identity of issues and the presence of an
adversary with the same motive to cross-examine the deponent.”).
71. Deceased Witness
Rule 32(a)(4)(A) states that a declaration may be used for any purpose when the court
concludes that the witness is dead. Unlike other exceptions, this one is relatively
straightforward, as courts have recognized. Wright Root Beer Co. v Dr. Pepper Co. 414 F.2d
887 (5th Cir. 1969) (party may introduce deposition of deceased witness with no strings
attached; trial court has no discretion to conditionally admit such deposition). Courts have also
found that, even though defendant's counsel was not present at a now deceased witness’s
deposition, the deposition testimony was admissible and any prejudice to defendants from their
inability to cross-examine witness could be minimized by stipulations. Duttle v. Bandler & Kas,s
127 F.R.D. 46 (S.D.N.Y. 1989).
2. 100-Mile Rule
Rule 32(a)(4)(A) states that a declaration may be used for any purpose when a witness is
more than 100 miles from the location of the hearing or trial or is outside the United States, so
long as the witness’s unavailability was not procured by the party seeking to use the deposition at
trial. Rule 32(a) is a freestanding exception to hearsay rule and is one of “other rules” to which
Fed. R. Evid. 802 refers. Nationwide Life Ins. Co. v. Richards, 541 F.3d 903 (9th Cir. 2008).
Disputes arises as to determination of the 100-mile distance. As to the relevant endpoint
for application of the 100-mile rule, the place of trial is the courthouse where the trial takes
place, not the borders of the judicial district. Tatman v. Collins, 938 F.2d 509 (4th Cir. 1991).
The majority of courts agree that the 100-mile requirement of Rule 32(a)(4)(B) is measured
using straight line distance, i.e., as the crow flies, between the witness’s residence or place of
employment and the place of the trial:
“The 100-mile provision allowing for use of a deposition of an absent witness by
any party for any purpose is a measurement of the radius from the witness’
location to the place of trial measured ‘as the crow flies,’ that is, along a straight
line on a map rather than along the ordinary, usual, and shortest route of public
travel.”
JOHN KIMPFLEN ET AL., 10A FEDERAL PROCEDURE § 26:518; see SCM Corp. v. Xerox Corp., 76
F.R.D. 214, 215-16 (D. Conn. 1977) (noting that the distances under Federal Rules of Civil
Procedure 4, 32 and 45 are all determined using a “straight line measurement”); accord
Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 730 (10th Cir. 2006) (noting distances
under Federal Rule of Civil Procedure are measured “as the crow flies”).
3. Age, Illness, Infirmity, or Imprisonment
Rule 32(a)(3)(C) permits the use of deposition testimony based on the unavailability of a
witness due to age, illness, infirmity or imprisonment. The Rule, by its terms, requires proof of
causal connection between the witness’s condition and inability to attend or testify. Boca
Investerings Pshp. v United States 197 F.R.D. 18 (D. Colorado 2000).
84. Attendance Not Procured through Subpoena
Rule 32(a)(3)(D) permits the use deposition testimony when a witness’s attendance could
not be produced by subpoena. Courts have held that a transcript of witness's deposition
testimony was properly admitted at trial under Fed. R. Civ. P. 32(a)(3)(D) when the witness
failed to appear after reasonable diligence had been exercised to get witness to attend (witness
had been subpoenaed and was contacted numerous times by telephone to confirm that witness
would comply with subpoena). Thomas v. Sheahan, 556 F. Supp 2d 861 (N.D. Ill. 2008).
Rule 32(a)(3)(D) creates an affirmative requirement for parties to timely and properly
serve the witness with a subpoena. See Hanson v. Parkside Surgery Ctr., 872 F.2d 745 (6th Cir.
1989) (where plaintiff did not serve the witness with a timely subpoena to testify, the court
properly excluded the deposition at trial).
5. “Exceptional Circumstances”
The last exception found in Rule 32(a)(3) is in subsection (E), which states that
deposition testimony may be admitted when “exceptional circumstances make it desirable—in
the interest of justice and with due regard to the importance of live testimony in open court—to
permit the deposition to be used.”
The fact that the witness is a hostile witness is not an exceptional circumstance allowing
admission of his deposition within meaning of federal rules. Klepal v. Pennsylvania R. Co., 229
F.2d 610 (2d Cir. 1956). On the other hand, the unexpected absence of a witness has been found
to be an exceptional circumstance permitting use of depositions at trial where there is no
suggestion of lack of diligence by attorney in not requesting subpoenas since, at the pre-trial
conference, the lawyer for actual party defendant-witness assured the court that the witness
would be present at trial and available as a witness. Huff v. Marine Tank Testing Corp., 631 F.2d
1140 (4th Cir. 1980).
D. What if Deponent Testifies at Trial?
Usually, if a witness is available at trial, live testimony is preferred and requests for
introduction of deposition testimony will be denied (although deposition testimony may still be
used for purposes of impeachment). In Delgado v. Pawtucket Police Dep't., the First Circuit
held that the district court was correct to reject plaintiffs' construction of Rule 32(a)(4)(C) and to
refuse to admit driver's deposition where it found he was available for live testimony and there
was no abuse of discretion in denying plaintiffs' mid-trial request for continuance to procure
driver's live testimony. 668 F.3d 42 (1st Cir. 2012).
On the other hand, the fact that the deponent has testified at trial does not bar the
introduction of his deposition testimony, so long as deposition is otherwise admissible under
rules of evidence. In Fenstermacher v. Philadelphia Nat'l Bank, the Third Circuit stated that
“Rule 32(a)(2), Fed. R. Civ. P., provides that the deposition of an adverse party or an officer,
director or managing agent thereof, may be used for any purpose at a trial or hearing if otherwise
9admissible under the rules of evidence. This remains the case even though the deposed party has
testified at the hearing.” 493 F.2d 333, 338 (3d Cir. 1974).
E. Expert vs. Fact Witnesses
The circumstances under which counsel may make use of an expert’s deposition
testimony are also governed by Rule 32 and the Federal Rules of Evidence, particularly the
hearsay rule. However, unique questions arise when dealing with expert witness depositions.
With expert witnesses, the key issue is often whether the expert acted as an “agent” for the
opposing party. Case law across the circuits reveals three main views concerning whether an
expert's deposition testimony can be introduced. See Vicki Franks, An Expert's Expertise: Is
Expert Deposition Testimony Impermissible Hearsay or an Admission by a Party-Opponent at
Trial?, 36 Am. J. Trial Advoc. 263 (2012). The first is that deposition testimony constitutes
inadmissible hearsay: An expert is neither authorized to speak on behalf of the party that
retained them, nor do they become an agent through a parties' retention of them. 4 The second is
that the expert’s deposition testimony is admissible because an expert was found to be an agent
of the party that retained them or was authorized to speak on that party's behalf. 5 The third view
is an attempt to strike a balance between the first two views and holds that whether expert
deposition testimony is admissible depends upon whether that expert is listed as a trial witness
by the time that trial begins. 6
F. Using Deposition from Prior Proceedings
In certain contexts (e.g., class action litigation or complex commercial litigation), the
parties may have been involved in prior litigation that dealt with the same or similar subject
matter to the current litigation. Deposition testimony from those earlier proceedings often will
prove to be a valuable source of information.
Rule 32 impliedly prohibits the use of deposition testimony against any party who is not
present or represented at taking of such deposition or who had no reasonable notice thereof.
Hewitt v. Hutter, 432 F. Supp 795 (W.D. Va. 1977). However, depositions taken in one action
may be used in other action if there are common questions of law or fact and substantial identity
of issues. Baldwin-Montrose Chemical Co. v. Rothberg, 37 F.R.D. 354 (S.D.N.Y. 1964). When
defendants had an adequate motive and opportunity in a separate case to develop witnesses'
testimony relevant to the instant case, the plaintiff was allowed to use depositions as long as
deponents were unavailable at trial. Clay v. Buzas, 208 F.R.D. 636 (D. Utah 2002).
4
See, e.g., Kirk v. Raymark Indus. Inc., 61 F.3d 147, 164 (3d Cir. 1995) ("Since an expert witness is not subject to
the control of the party opponent with respect to consultation and testimony he or she is hired to give, the expert
witness cannot be deemed an agent.").
5
See, e.g., Collins v. Wayne Corp., 621 F.2d 777, 781-82 (5th Cir. 1980) (holding that the expert constituted Wayne
Corp.'s agent because they employed the expert to investigate and analyze the bus accident, and by "giving his
deposition[,] he was performing the function that Wayne had employed him to perform"), superseded by rule on
other grounds as recognized in Mathis v. Exxon Corp., 302 F. 3d 448, 459 n. 16 (5th Cir. 2002).
6
See, e.g., Glendale Federal Bank, FSB v. United States, 39 Fed. Cl. 422, 424-25 (Fed. Cir. 1997) (By the time of
trial, a court can hold a party to a final understanding of its case and thereby an authorization of the testimony by its
experts, "who have not been withdrawn," under Rule 801(d)(2)(C)).
10G. Hearsay
Even though Rule 32 acknowledges the applicability and need for conformity with the
Federal Rules of Evidence, including the hearsay rule, Rule 32 can also operate to circumvent
exclusion of deposition testimony under the hearsay rule.
As the Ninth Circuit noted in Nationwide Life Ins. Co. v. Richards:
“Under [Federal Evidence] Rule 802, hearsay is admissible where allowed by the
Federal Rules of Evidence, or ‘by other rules prescribed by the Supreme Court
pursuant to statutory authority or by Act of Congress.’ Fed. R. Evid. 802. Rule
32(a)(4)(B) is one of these ‘other rules.’” 541 F.3d 903, 914 (9th Cir. 2008).
The Ninth Circuit also noted that other courts had applied “Rule 32(a) [a]s an independent
exception to the hearsay rule,” including the First, Seventh, Tenth and Federal circuits. 7
H. Differences between Use in Arbitration vs. at Trial
Compared to litigation in state or federal courts, arbitration is a less formal, more flexible
process, governed by contract and not subject to as many procedural rules. The discovery
available to the parties will vary widely depending on the setting. Often no party in arbitration
has a right to discovery unless (1) all parties agree to the discovery, (2) the arbitration agreement,
applicable law or applicable rules (for example, specific rules concerning commercial
arbitrations) provide such a right, or (3) the arbitrator enters an order expressly approving or
directing discovery.
Some commentators argue that arbitrators are likely to reach sound decisions that are less
likely to be set aside, if they pay more attention to the rules of evidence in arbitration. See
Edwin R. Render, The Rules of Evidence in Labor Arbitration, 54 LOY. L. REV. 297 (2008).
Counsel should consult the arbitrator’s standing policies or rules and discuss with
opposing counsel and the arbitrator about how discovery and evidence gathering will proceed
and how testimony may be presented. For example, one arbitrator’s policies include some of the
following guidelines:
“Each party’s witness list should identify the witnesses (name, address, phone number)
7
First Circuit: Carey v. Bahama Cruise Lines, 864 F.2d 201, 204, n.2 (1st Cir. 1988) (explaining that Rule
32(a)(3)(B) “is more permissive than Federal Rule of Evidence 804(a)(5)”); Third Circuit: United States v. Vespe,
868 F.2d 1328, 1339 (3d Cir. 1989) (Rule 32(a)(3)(B) “constitutes an independent exception to the hearsay rule”);
Seventh Circuit: Ueland v. United States, 291 F.3d 993, 996 (7th Cir. 2002) (“Rule 32(a), as a freestanding
exception to the hearsay rule, is one of the ‘other rules’ to which Fed. R. Evid. 802 refers. Evidence authorized by
Rule 32(a) cannot be excluded as hearsay, unless it would be inadmissible even if delivered in court.”); Tenth
Circuit: Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 962-63 (10th Cir. 1993) (“Deposition testimony is
normally inadmissible hearsay, but Fed. R. Civ. P. 32(a) creates an exception to the hearsay rules.”); D.C. Circuit: S.
Indiana Broadcasting, Ltd. v. FCC, 935 F.2d 1340, 1341-42 (D.C. Cir. 1991) (recognizing that Fed. R. Civ. P. 32(a)
creates an exception to the hearsay rule).
11that party expects to testify at the hearing, identify the general nature of their testimony,
and indicate how the witness will testify at the hearing (in-person, by telephone, by video
deposition, by written deposition or by affidavit or declaration) […]
Although in many cases a witness’s testimony may be presented by declaration or
affidavit (see Rule R-32(a), AAA Commercial Rules), I strongly encourage the offeror to
have the witness available by telephone for cross-examination, as his or her availability
for cross examination may affect the witness’s credibility and the weight I accord his or
her evidence. If you wish to utilize all or a portion of a deposition transcript as
substantive evidence (i.e., in addition to or in lieu of a witness testifying in-person or by
telephone), I will expect you to provide all other parties with a copy of the transcript,
highlighting those portions you intend to offer, at least a week prior to the Hearing so that
your opponent may designate other portions of the transcript or identify any objections
he or she may have to the portions you intend to use.”
(Available at: http://www.cnhlaw.com/pdfs/arb/PoliciesArticle.pdf)
These rules illustrate how arbitration procedure can offer greater flexibility (e.g. having a
witness be available by phone for cross examination) to the parties, but that similar procedures
(e.g., requiring a party using part of the transcript to provide the entire transcript to the opposing
party) may also apply.
I. Videotaped Depositions
Rule 30(b)(2) of the Federal Rules of Civil Procedure authorizes depositions to be taken
by other than stenographic means. Before Rule 30(b)(2) came into effect, prior to the 1993
amendments, Rule 30(b)(4) required the recording of deposition testimony by non-stenographic
means to first be approved by the court or agreement from other counsel. However, the amended
language in Rule 30(b)(2) allows parties to videotape depositions at their own discretion.
The introduction of video deposition testimony at trial is increasingly common. Many
courts prefer video deposition testimony over traditional stenographic transcripts because video
testimony enables the jury or judge to examine a witness’s demeanor, thus allowing them to get a
better feel for the credibility of the witness. There are limitations and potential areas for abuse.
Improper editing of video clips, for example, can distort events by putting statements out of
context or overemphasizing otherwise harmless or trivial statements.
1. Using Video Deposition During Opening Statement
Using video evidence in opening statements is typically allowed if the evidence is
otherwise admissible. 8 Given that decisions regarding the use of evidence during opening
statement are ultimately within the trial court’s discretion, these determinations can vary
8
See, e.g., Spence v. Southern Pine Elec. Co-op., 643 So.2d 970, 972 (Ala. 1994) (stating that the trial court did not
abuse its discretion by allowing excerpts of deposition testimony of two witnesses as demonstrative evidence during
opening statements).
12considerably depending on the individual judge. For example, in Hynix Semiconductor Inc. v.
Rambus Inc., the court prohibited both parties from using video clips in opening because
“[r]epeatedly showing the same few deposition segments seems to exalt the relevance of those
videotaped shreds of evidence over live testimony.” 2008 WL 190990, at *1 (D. Cal. Jan. 21,
2008). On the other hand, in MBI Acquisition Partners, L.P. v. Chronicle Publishing Company,
the court allowed the use of video excerpts in opening and ordered the party seeking to show the
video clips to inform plaintiff’s counsel as to which excerpts they intended to show. WL
32349903, at *1 (W.D. Wis. 2002).
Attorneys seeking to use video clips in opening statement must be careful not to make
references to inadmissible evidence in the opening statement, as that may be the basis for a
mistrial or the imposition of sanctions. See, e.g., Koehn v. R.D. Werner Co., Inc., 809 P.2d 1045,
1050 (Colo. Ct. App. 1990).
2. Using Video Deposition Testimony During Later Stages of Trial
Counsel seeking to use video deposition later in trial must similarly exercise caution so as
to avoid potential pitfalls. For instance, segments of video testimony shown during closing
argument should not be so lengthy as to constitute a second trial, emphasizing only one litigant’s
side of the case, and the parties should not edit video deposition testimony in a manner that
distorts context, misstates facts, or otherwise misleads the jury. See Morgan v. Scott, 2006 WL
2457378 (Ky. Ct. App. 2006) (citing Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675
(Ky. Ct. App. 2000)).
IV. General Dos and Don’ts
A DO:
1. Figure out the impeachment process in advance and practice. DO NOT
ARGUE WITH THE WITNESS, WHICH SHOULD NOT HAPPEN IF
YOU DO IT CORRECTLY.
2. When using only part of a deposition, be aware of the risk of harmful
testimony being revealed from other segments.
3. Have copies in case the court denies your request to read the deposition
transcript (or to have the jury read it) and wants the jury to read it
themselves.
4. Properly subpoena your witness and make sure that a witness is actually
“unavailable” before planning to use deposition beyond impeachment.
Determine 100 miles “as the crow flies” (you can use Google Earth to
calculate this).
5. Make sure to include corrections to depositions in the deposition
submitted to the court, as required by Rules 30 and 32.
13B. DON’T:
1. Don’t engage in repetitive testimony— it may serve as the basis for
excluding deposition testimony at trial.
2. Be careful not to elect deposition testimony automatically because you
may waive right to live testimony later at trial.
3. Don’t assume that an expert witness is necessarily a “party.”
4. Don’t bore the jury—make good use of technology (video testimony,
projected quotations from depositions, e.g.) to express points clearly and
succinctly.
5. Don’t wait until trial until you think about how deposition fits into trial
and overall case themes—use the deposition to elicit testimony that will
help you down the road at trial.
V. Conclusion
A successful trial strategy requires lawyers to be familiar with Rule 32, the hearsay rule,
and the various requirements for successful introduction of deposition testimony at trial. And
simply gaining admission is not enough. Success also means that the lawyer knows what to do
with the deposition testimony. These questions as well as the basic questions regarding
admissibility need to be on every trial lawyer’s radar to prevent mistakes or missed
opportunities.
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