A deposition is witness testimony, given outside of court, taken down by a court reporter and compiled into a written document. The guidelines for depositions can be found in the Federal Rules of Civil Procedure, rules 30 through 32. Those rules discuss who can be deposed, when depositions can take place and how depositions can be used during a trial.
During civil lawsuits, witnesses are often asked to give testimony prior to a trial. A court reporter records every question and answe, and any discussion that is not “off the record,” and then sends the transcript to both parties’ attorneys. That testimony can be used during discovery, when relevant documents or information pertaining to the lawsuit is exchanged. The deposition transcript can also be used at trial, sometimes to show inconsistencies of a witness’ testimony.
Who May Be Deposed
Any party to a lawsuit, or any third party who has information relevant to resolving the lawsuit, can be deposed. Notice of a deposition, including the date, time and location of the deposition, as well as the name and address of the person to be deposed, must be provided to all parties. If the person who is to be deposed refuses to appear, that person can be served with a subpoena, forcing attendance at the deposition.
There are certain circumstances when the Federal Rules of Civil Procedure require that the court’s approval is required to take deposition testimony. Under Rule 30(a)(2), if more than 10 depositions sessions would be required to obtain all relevant information from a testifying witness, the court must grant approval. In addition, if a witness already gave deposition testimony, a court must approve additional depositions of that same witness. Lastly, if the witness to be deposed is in prison, a request to take that witness’ deposition must be made to a court.
Depositions should take place in no more than seven hours. If additional time is needed to obtain all relevant information from the witness, the court can permit additional time.
Deposition testimony is given under oath and recorded by a court reporter. Both parties have an opportunity to question the witness. The non-questioning party can object at any time during the examination, particularly to evidence, questions or conduct of any party. Objections are taken down by the court reporter, but the examination continues. A witness can only be told not to answer when information is privileged or when the court has previously ordered that testimony should be limited.
While depositions are more commonly oral examinations, Rule 31 also allows for depositions to be conducted with written questions. Questions must be sent to all parties, as well as to the witness. The witness then responds to the questions and returns them to the party who requested the information. It is that party’s responsibility to provide copies of the responses to all other parties of the lawsuit.
Review of Deposition Testimony
Once the court reporter has provided a transcript of the deposition to the parties of the lawsuit, the witness must be given a copy of his testimony. The witness has 30 days to review the transcript and make any changes. If any changes are made, a statement must be attached listing each change and the reason the change was made. The statement must be signed by the witness, even if no changes are listed, as this acknowledges that the transcript was reviewed.
Use of Deposition Testimony in Court (at Trial)
Rule 32 describes the circumstances in which a deposition transcript can be used during in court. The most common reasons for using deposition testimony are to impeach a witness’ testimony or if a witness is unavailable.
When a witness is testifying at trial, if she says anything that is different from the testimony in the deposition transcript, the transcript can be used to show the jury that there are contradictions in the two testimonies.
Additionally, if a court finds that a witness satisfies the requirements of being considered unavailable, the deposition transcript can be read at the trial, to allow the jury to hear the prior testimony. A witness is unavailable only when:
Dead, or unable to appear because of illness, age or imprisonment
The witness failed to respond to a subpoena
The witness lives more than 100 miles from the location of the court or;
Other exceptional circumstances permit the use of the prior testimony because the live testimony would ensure justice prevails in the case.
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