Using Depositions at Trial

Using Depositions at Trial

Rule 32 governs the moment a deposition leaves the discovery file and enters the courtroom. The Rules keep the right to take testimony separate from the right to use it. Before trial they allow the utmost freedom, so a lawyer may ask about anything within the scope of discovery without first asking whether the answer would be admissible. The restrictions fall on the use of what discovery produces, and they exist to preserve the traditional methods of trial.¹

Those restrictions answer to the way a deposition is made. A lawyer often takes one because a witness without a subpoena refused to talk informally, and the formal devices were the way to secure a chance to question that witness.² No judge rules on objections while the questions are asked, and the fact-finder who later hears the transcript never sees the witness answer. If every transcript were admissible, each question would have to be drafted as trial evidence, and the deposition would lose the freedom that makes it useful. Rule 32 therefore treats live testimony as the norm and admits a transcript only on defined occasions: to impeach the deponent, against an adverse party, and in place of a witness who cannot be had in court. Each occasion stays subject to the rules of evidence.³

The subsections below follow a lawyer's order of analysis. They begin with the threshold conditions every use must meet, then take up the occasions that justify using a transcript, the fairness rule for partial use, the objections that survive and the ones that are lost, and finally the way the other discovery devices reach trial.

Conditions for Use

Rule 32(a)(1) lets a party use all or part of a deposition against another party at a hearing or trial, but only if three conditions are all met.⁴ The first looks to the party against whom the transcript is offered, the second to the testimony itself, and the third to the occasion for using it. A deposition that clears two of the three still stays out.

The first condition is that the party was present or represented at the taking of the deposition or had reasonable notice of it.⁵ Each alternative secures the same thing: a fair chance to object and to cross-examine while the witness is still answering. A party whose lawyer sat through the questioning had that chance. So did a party that received reasonable notice and chose to stay home, because the absence was its own decision. Only a party that was absent, unrepresented, and never told can complain.

The second condition is that the deposition is used only to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying.⁶ Discovery reaches matter that need not be admissible, and objections raised at the deposition did not stop the examination; the testimony was taken subject to them, and the judge rules on them before the testimony comes in.⁷ This condition does the screening. The judge imagines the same question put to the same witness on the stand and asks whether an objection would be sustained. The words to the extent make the test run passage by passage, so one transcript may come in in part and stay out in part. Attendance at the deposition cures nothing here, because the first condition concerns the party's opportunity and this one concerns the evidence.

The third condition is that the use is allowed by Rule 32(a)(2) through (8).⁸ Those paragraphs list the occasions on which a transcript may stand in for, or be set against, live testimony. The principal ones are impeaching the deponent, using the deposition of an adverse party, and using the deposition of a witness who is unavailable as Rule 32(a)(4) defines that term.⁹ Each occasion answers a recognized need: a witness on the stand can be confronted with earlier words, an opposing party's own statements can be offered against that party, and a witness who cannot come to court cannot testify live. A transcript offered only because reading it is more convenient than calling an available witness clears the first two conditions and fails the third. Treating notice plus admissibility as enough is the usual exam error here. The next subsections take up the principal occasions one at a time.

Rule 32(a)(5) adds two limits that bar use even when the three conditions look satisfied. Each protects a party that had no practical chance to defend its interests at the deposition. The first concerns short notice: a deposition must not be used against a party who, having received less than 14 days' notice, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place, if that motion was still pending when the deposition was taken.¹⁰ Every element must be present: notice of under 14 days, a prompt motion of that kind, and a motion still undecided on the day. The rule resolves a bind. A party with a pending motion asking to be spared the deposition would otherwise have to choose between attending, which spends the effort the motion sought to save, and staying away, which gives up cross-examination. Barring use lets that party rely on its motion.

The second limit protects a party that could not find a lawyer. A deposition taken without leave of court under the unavailability provision of Rule 30(a)(2)(A)(iii) must not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent it at the deposition.¹¹ A party properly noticed meets the first condition even if finding counsel in time was impossible, and this limit fills that gap. The party must make the showing, and the showing requires diligence; a party that ignored the notice cannot make it.

A deposition may also come from a different lawsuit. One lawfully taken and, if required, filed in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action.¹² The identity requirements supply the fairness: the party against whom the deposition is offered, or someone standing in its shoes, already had its chance to cross-examine on the same subject. The words as if taken in the later action matter, because they mean the earlier deposition does not escape the conditions above. It must still fit a listed occasion and survive the evidence rules. The same provision adds that a deposition previously taken may also be used as the Federal Rules of Evidence allow.¹³

Rule 32(c) governs how the testimony reaches the fact-finder. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony it offers, though it may also give the court the testimony in nontranscript form. On any party's request, testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise.¹⁴ The transcript gives the judge a fixed text against which to rule on the objections postponed from the deposition. The nontranscript option lets the jury hear and see the witness, which a flat reading cannot do. Impeachment is carved out because it uses a few specific words to contradict a witness already testifying live. The requirement applies only if a nontranscript version is available, so a party with no recording is not forced to create one.

Party Depositions and Impeachment

The first listed occasion is the one any party may invoke. Rule 32(a)(2) lets any party use a deposition to contradict or impeach the testimony the deponent gives as a witness, or for any other purpose the Federal Rules of Evidence allow.¹⁹ To impeach is to attack credibility, and a deposition does it by showing the fact-finder that the witness, under oath at an earlier time, told a different story from the one now on the stand. The permission belongs to any party, so the side that noticed the deposition has no priority over the side that merely attended, and the deponent may be a party or a nonparty. The use presupposes a deponent who testifies at trial, because the rule aims the transcript at the testimony the deponent gives as a witness.

Impeachment needs no special showing, because it leaves the preference for live testimony intact. The witness sits in the courtroom, under oath, and can answer the contradiction by explaining the earlier answer, claiming a mistake, or saying the question was misunderstood. The transcript serves only as a fixed record against which the live account is tested: the cross-examiner reads a few lines and asks the witness to reconcile them.

For the same reason, impeachment cannot stand in for the witness. A contradiction presupposes testimony to contradict, and the rule's second clause passes through only those purposes the Rules of Evidence independently allow.²⁰ A lawyer who wants to read an available nonparty's deposition to the jury instead of calling that witness finds no permission here and must show unavailability under Rule 32(a)(4).²¹

Rule 32(a)(3) supplies a second use, wider in purpose and narrower in whose deposition it reaches. An adverse party may use for any purpose the deposition of a party or of anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) (oral questions) or 31(a)(4) (written questions).²² Any purpose means the user needs no finding of unavailability and need not wait for the deponent to testify and be contradicted. The adverse party may read the deposition in its own case-in-chief while the deponent sits in the courtroom.

The reason lies in whose words these are. A deposition may be used as an admission by the deponent, and the testimony of a Rule 30(b)(6) designee is admissible against the institution that designated the person.²³ Fairness points the same way, because the party is in court and can explain or contradict its own words from the witness stand. The category reaches officers, directors, managing agents, and designees because an organization speaks only through people, and treating what they said on its behalf as the organization's own statement keeps it from disowning them. A Rule 30(b)(6) designee is the clearest case, since the organization chose that person to speak for it.

Two phrases mark the boundary of the rule. When deposed fixes the deponent's role on the day of the deposition: a person who was a managing agent when questioned stays within the rule after leaving the job, while a person who became an officer only after the deposition was taken does not come within it. Adverse party gives the permission to the opponent of the party whose deposition it is. The deposed party gets no comparable license to read its own deposition in place of testifying and needs another listed occasion, such as unavailability. Importing an unavailability requirement into this rule is one common error; treating every employee of a corporate party as if the rule reached that employee is the opposite one.

Unavailable Witnesses

Rule 32(a)(4) is the broadest of the listed occasions: a party may use for any purpose the deposition of a witness, whether or not a party, if the court finds that one of five stated grounds exists.²⁶ Any purpose means the transcript can be offered as the witness's testimony itself, read or played to the fact-finder in the witness's place. Unlike impeachment, it does not depend on a live witness to contradict. The words the court finds make unavailability a preliminary question for the judge, so the offering party must put facts before the court: proof of death, a physician's statement, evidence of where the witness lives. Whether or not a party also does work. An adverse party can already use a party's deposition for any purpose, so the phrase matters most when the deponent's own side wants the transcript, as when a deposed party later becomes too ill to testify.

The grounds make sense once you see what a transcript gives up. Live testimony lets the fact-finder watch the witness and lets the opponent cross-examine before that same fact-finder, so a deposition read aloud is a second-best substitute that the Rules allow only where the best is out of reach. For a nonparty the point has special force, because a nonparty's deposition replaces live testimony only if the court finds one of the five grounds.²⁷ The uses so far therefore divide cleanly. Impeachment serves any testifying deponent, any-purpose use runs against a party and its agents, and everyone else's deposition stands in for live testimony only on a finding of unavailability.

Because the finding is made when the transcript is offered, lawyers can plan for it. A deposition de bene esse is taken from a witness who will likely be unable to attend a scheduled trial or hearing, so that the testimony can be read at trial in the witness's place.²⁸ A lawyer facing an elderly or gravely ill witness, or one about to leave the country, can take the testimony early with notice to the other side, so that cross-examination happens at the deposition, and leave the unavailability showing until the transcript is offered. A finding of unavailability satisfies only the third condition, so notice and admissibility still apply: a hearsay passage in a dead witness's deposition stays out just as it would have stayed out live.

Two grounds concern the witness's person. A witness who is dead cannot testify in any form, so the deposition is the only sworn account that remains.²⁹ A witness who cannot attend or testify because of age, illness, infirmity, or imprisonment also qualifies.³⁰ The operative word is cannot: the ground reaches the witness for whom attending or testifying is genuinely impossible, and a witness with a crowded calendar or a dislike of travel falls outside it. Imprisonment sits beside age and illness because in each case the obstacle lies beyond the witness's control. A court asked to find the ground wants evidence of the obstacle, and a treating physician's statement is a natural form of that proof.

Distance supplies the next ground and the only proviso in the list. A deposition may be used if 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.³¹ The measurement runs from the witness to the place of trial, and a witness outside the United States qualifies without any measurement at all. The proviso answers a specific temptation. A litigant who dreads cross-examination before the jury could arrange for its own witness to move away shortly before trial and then read a transcript taken under easier conditions, and the proviso removes the payoff. Distance is the kind of absence a party can create by buying a ticket or arranging a relocation, which explains why the proviso sits in this ground and not beside death or illness.

The fourth ground looks to the offering party's tools. A deposition may be used if the party offering it could not procure the witness's attendance by subpoena.³² A nonparty can be brought to trial only by subpoena, so a nonparty beyond the reach of a trial subpoena is a witness the court's process cannot deliver, and the transcript is the only form the testimony can take. This ground stands apart from the distance ground, and satisfying either one suffices, so an offering party should name the ground it relies on. The two ask different questions: the distance ground counts miles to the courthouse and asks who caused the absence, while the subpoena ground asks what compulsory process could have accomplished. A party that never tried to serve a subpoena on a witness who lives near the courthouse will have difficulty showing that it could not procure attendance.

The fifth ground is the only one that begins with a procedural step and ends in a balance. On motion and notice, the court may permit use if exceptional circumstances make it desirable, in the interest of justice and with due regard to the importance of live testimony in open court.³³ The motion and notice give the opponent a chance to resist before the transcript is read. The word exceptional keeps the clause for situations the first four grounds do not quite describe, so a party who asks to read a transcript because calling a nearby, healthy witness would add a day to the trial has shown inconvenience and little more. The closing phrase requires the court to weigh what the jury loses by not seeing the witness. The list cannot foresee every case, and this clause lets the judge respond to one it missed, while the balancing language keeps the clause from swallowing the grounds that precede it. Treating it as a catch-all for any witness who is hard to schedule is the usual mistake.

Using Part of a Deposition

Rule 32(a)(6) governs what happens when a party reads or plays only a portion of a deposition at trial. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.³⁵ The offeror is the party who chose the excerpt. The rule gives two permissions with different mechanics: one lets the adverse party make the offeror carry added testimony into the record, and the other lets any party put that testimony in on its own. The same event triggers both, a decision to offer less than the whole transcript, and one standard governs both, which is fairness.

The reason lies in how a deposition is built and used. A transcript runs across many pages, because the questioner roams over the whole scope of discovery, and a witness often qualifies, explains, or retracts an answer a page or two after giving it. A lawyer who picks excerpts controls which of the witness's words reach the fact-finder first, and a sentence lifted from its surroundings can mean something different from the same sentence read in place. Without a completeness rule, the side holding the transcript could give the jury a distorted account and leave the witness's side to repair it only when its own turn came. The rule lets the missing context arrive alongside the excerpt.

Each permission does its own work. The compelled-introduction half puts the burden on the offeror at the moment of the offer, so the jury hears the qualifying testimony together with the passage it qualifies. The self-introduction half means the adverse party never depends on the offeror: it can read or play the added parts itself. The added testimony still passes the ordinary filter, because a deposition is used only to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying.³⁶

The fairness standard confines the demand. A defendant who insists, after the plaintiff reads two pages, that the entire transcript be read has misread the rule. The standard looks to the relationship between the omitted testimony and the part offered: does the omitted testimony qualify it, explain it, contradict it, or otherwise change what it fairly means? Testimony that does none of those things is not a part that in fairness should be considered with the excerpt, however conveniently it sits in the same transcript.

That limit keeps a narrow safeguard against distortion from becoming a route to reading an entire transcript on unrelated topics, which would consume trial time and put before the jury testimony with no bearing on the excerpt. Testimony that explains a passage comes in; testimony that shares only the passage's transcript stays out. The adverse party loses nothing legitimate, because every part that truly bears on the excerpt can still be demanded from the offeror or introduced by the adverse party itself.

Objections and Waiver

Rule 32(b) turns the admissibility condition into a live argument at trial. Subject to Rules 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.³⁸ A trial-stage objection is possible because objections raised at the deposition did not stop the examination: the testimony was taken subject to them, and the judge rules on all of them before the testimony comes in.³⁹ The opening qualifier matters, because Rule 32(d)(3) decides which objections survive a lawyer's silence at the deposition. What remains is waiver, the loss of a right by failing to assert it when the rules require, and the sorting of objections by when the rules demand them.

The sorting principle is whether the defect could have been corrected on the spot. An objection to a deponent's competence, or to the competence, relevance, or materiality of testimony, is not waived by a failure to make it before or during the deposition, unless the ground might have been corrected at that time.⁴⁰ Preservation is the default because of what rephrasing can accomplish. Asking about an irrelevant subject in different words yields irrelevant testimony, and a more careful question does not make an incompetent witness competent, so an objection voiced in the room would only warn the examiner of a problem no one could fix. The exception runs the same reasoning in reverse: if a few more questions could have removed the ground, the objector's silence kept the examiner from supplying them, and the objector cannot revive the point later. In summary, evidentiary objections other than those to form, and other than those correctable at the time, are preserved until the deposition is offered in court.⁴¹

Objections to the manner of the examination fall on the other side of that line. An objection to an error or irregularity at an oral examination is waived if the matter might have been corrected at the time and the objection was not timely made during the deposition.⁴² A defect in the form of a question, such as an argumentative or misleading phrasing, is the standard example.⁴³ A lawyer who objects at that moment gives the examiner a chance to reword, and the defect is cured. A lawyer who stays silent and raises the objection at trial would hold a free option, because the answer is already in the transcript and the examiner has lost the only chance to repair the question. Waiver removes that option, so the rule rewards the lawyer who speaks up when speaking up costs the least.

A second group of objections attacks the machinery around the testimony, not its content or the form of its questions, and for these the rules replace the correctability inquiry with a specific clock. Each clock starts when the defect can first be seen. The four clocks are these:

• An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.⁴⁴
• An objection based on disqualification of the officer before whom the deposition is taken is waived if not timely made, meaning before the deposition begins or promptly after the basis for disqualification becomes known.⁴⁵
• An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, for a recross-question, within 7 days after being served with it.⁴⁶
• An objection to how the officer transcribed, prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition is waived unless a motion to suppress is made promptly after the error becomes known or, with reasonable diligence, could have been known.⁴⁷

Each clock fits the defect it governs. A defect in the notice can usually be repaired at once if the noticing party hears about it, so the objector must say so in writing promptly, and a party who attends and stays silent cannot complain after the testimony goes badly. A disqualified officer can be replaced before any testimony is taken, so the objection must come before the deposition begins or as soon as the basis is known; a later objection would let the objector decide whether to challenge the officer after reading the testimony. In a Rule 31 deposition every question is fixed on paper and served before the witness answers, so the drafter can reword a defective question only if the objection arrives in the short window the rule sets. The transcript clock covers errors that arise after the testimony ends. A prompt motion to suppress, which asks the court to bar use of the deposition, lets the court deal with the error while it is fresh, and the diligence language means a party cannot lengthen the clock by declining to open the package.

The deposition-day rules set the first checkpoint, and the pretrial disclosures set a second one that operates on the transcripts a party actually plans to use. In addition to its earlier disclosures, a party must provide information about the evidence it may present at trial other than solely for impeachment, and that information covers testimony it expects to present by deposition.⁴⁸ Within 14 days after these final disclosures, a party may object to the use of the depositions listed. An objection not made then, other than an objection under Evidence Rules 402 and 403, is waived unless the court excuses the failure for good cause.⁴⁹ The window turns a general reservation of objections into a scheduled event. Once the opponent has designated its transcripts, the objecting party knows which testimony will be read, and the court can settle disputes before the jury is seated, whereas an objection saved for the moment a passage is read forces a ruling in front of the jury.

The two checkpoints answer different questions, and the two should be kept apart. The rule on competence, relevance, and materiality explains why silence at the deposition does not forfeit those objections. The window explains when a party must raise objections to the use of a designated transcript before trial, so an objection of the kind the deposition-day rule preserves, such as hearsay, must still be listed within the 14 days, while Evidence Rule 402 and 403 objections are excepted from waiver there.

Two opposite shortcuts both fail. One assumes that every deposition objection is reserved until trial because objections were noted on the record at the deposition, which ignores form defects, the four timed clocks, and the pretrial window. The other assumes that silence loses every objection, which ignores that relevance and competence objections survive unless the ground was correctable at the time.

Trial Use of Other Devices

Interrogatory answers reach trial under a simpler rule than depositions do: an answer to an interrogatory may be used to the extent the Federal Rules of Evidence allow.⁵⁵ A deposition transcript can take the place of a witness who could ordinarily testify live, which is why Rule 32 lists the occasions for its use. An interrogatory answer is a party's own written statement and replaces no live witness, so Rule 33(c) hands the question of use to the Rules of Evidence. Offered by an opponent against the answering party, an answer may in some instances amount to an admission against that party, but it is not conclusive.⁵⁶

The answering party therefore remains free to offer different proof. Interrogatories earn their keep by narrowing the issues and supplying detail the pleadings lack,⁵⁷ yet an answer is evidence the fact-finder weighs, not a bar. A party that changes position at trial will usually want to explain the change, but the earlier answer does not forbid it.

The other devices follow the same pattern, and each exists because informal methods can fail. A witness with no subpoena may refuse an interview, and the lawyer must then resort to the formal devices.⁵⁸ The results of a Rule 35 examination are almost always admissible at trial, and an examined party who requests and obtains the examiner's report waives any privilege tied to it, such as the doctor-patient privilege.⁵⁹ Admissibility makes those results evidence that the fact-finder weighs against the rest of the medical proof, like any other fruit of discovery that is not conclusive.⁶⁰ All of this assumes the use occurs in the very proceeding that produced the discovery, because carrying the fruits of one action into a second action invokes different and more complicated rules.⁶¹

Requests for admission occupy a different category. A matter admitted under Rule 36 is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.⁶² Conclusively established means the fact-finder takes the matter as a given, while every other fruit of discovery is merely evidence from which the fact-finder reaches its own decision.⁶³ The difference follows from the device's purpose, which is to expedite the trial and relieve the parties of the cost of proving facts that will not be disputed.⁶⁴ If an admission were only one more item of evidence, the requester would still have to call witnesses and offer exhibits against a party free to contradict it, and the request would save nothing. The binding force stays inside the pending action, because an admission is not an admission for any other purpose and cannot be used against the party in any other proceeding. The court may release a party from it only if withdrawal would promote the presentation of the merits and the court is not persuaded that it would prejudice the requesting party.⁶⁵

Both scenes involve a party contradicting its own earlier statement, and they differ only in the device that produced the statement. Treating a sworn interrogatory answer as if it bound the party like a Rule 36 admission is one error, and treating a Rule 36 admission as one more item of evidence the party may rebut is the other.