Short answer. Yes, generally you can. If the new action involves the same subject matter and is between the same parties or their representatives or successors in interest, depositions lawfully taken and filed in the dismissed action may be used in the new one as if they had originally been taken for it.
What the law says
Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
Rule 23, Section 5 — Effect of substitution of parties. Read the full provision →
Substitution of parties doesn't erase existing depositions
The rule begins by first addressing a related but genuinely distinct scenario — substitution of parties within an ongoing case does not affect the right to use depositions that were previously taken earlier in that same proceeding. Even where the identity of exactly who is actively litigating happens to change partway through the case, depositions already taken beforehand remain fully usable going forward regardless.
The refiled-action scenario
The rule then goes on to extend this very same underlying principle to a case that was earlier dismissed and later refiled as a new action: when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, the depositions taken back in the earlier case are not simply lost or wasted as a result of that dismissal.
What has to match for the depositions to carry over
Two distinct conditions genuinely matter here for the earlier depositions to carry over — the new action must involve the same underlying subject as the earlier dismissed one, and it must also be between the same parties, or their representatives or successors in interest. Both of these conditions need to be satisfied together for the earlier depositions to remain usable in the later, refiled case.
How the carried-over depositions are treated
When those two conditions are indeed met, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. They are not treated in the new case as some lesser, provisional, or second-class form of evidence simply because of the earlier dismissal — they instead stand fully as if they had originally been taken directly for that later, refiled action itself, sparing the parties from having to retake testimony that was already properly captured before.
Related provisions
- Rule 23, Section 5 — Effect of substitution of parties
- Rule 23, Section 4 — Use of depositions
- Rule 23, Section 6 — Objections to admissibility