A deposition is the testimony of a party or a witness taken under oath outside of court, before an officer authorized to administer oaths, and reduced to writing, for use in a pending (or contemplated) action. It is one of the principal modes of discovery, and it serves two purposes: to discover facts and to preserve testimony. There are two kinds by timing: a deposition pending action (de bene esse), taken after the action has commenced, which is the ordinary case; and a deposition before action or pending appeal (in perpetuam rei memoriam), taken to perpetuate testimony where a person wants to preserve evidence for an expected future action or during an appeal. By manner, a deposition may be taken upon oral examination (the deponent is questioned orally, with the other party able to cross-examine) or upon written interrogatories (questions are served in advance and propounded by the officer). Leave of court is generally required to take a deposition before the defendant has served an answer, but after that, depositions may generally be taken without leave. The scope of examination is broad: a deponent may be examined regarding any matter, not privileged, that is relevant to the pending action, and it is not a ground for objection that the testimony would be inadmissible at trial if it appears reasonably calculated to lead to the discovery of admissible evidence. As to use at trial, a deposition may be used: to contradict or impeach the testimony of the deponent as a witness; by an adverse party, for any purpose, if the deponent is a party or an officer/managing agent of a party; and for any purpose by any party, if the court finds that the witness is dead, or is out of the province and more than the specified distance away, or is unable to attend due to age, sickness, infirmity, or imprisonment, or that the party offering it could not procure attendance by subpoena, or upon other exceptional circumstances. So a deposition takes sworn testimony before trial for discovery and preservation, and it becomes usable as evidence in the specific situations the rules allow.
What a Deposition Is
A deposition is a party's or witness's sworn testimony taken outside court, before an authorized officer and reduced to writing — used to discover facts and to preserve testimony.
Kinds
- By timing — pending action (the ordinary case) or before action/pending appeal (to perpetuate testimony); and
- By manner — upon oral examination (with cross-examination) or upon written interrogatories.
Scope and Use at Trial
The scope is broad: any non-privileged, relevant matter, even if inadmissible at trial, if reasonably calculated to lead to admissible evidence. A deposition may be used to impeach the deponent, for any purpose against a party-deponent, and for any purpose if the witness is dead, far away, ill, imprisoned, or unobtainable by subpoena.
Practical Takeaways
- A deposition captures testimony before trial;
- Its scope is broad — discovery, not admissibility, is the test;
- It becomes evidence when the witness is unavailable or is a party.
Frequently Asked Questions
What is a deposition? The testimony of a party or witness taken under oath outside of court before an authorized officer and reduced to writing, used as a mode of discovery and to preserve testimony for a pending or contemplated action.
What are the kinds of depositions? By timing, a deposition pending action or one taken before action or pending appeal to perpetuate testimony. By manner, a deposition upon oral examination or upon written interrogatories.
What can a deponent be asked? Any matter, not privileged, that is relevant to the pending action. It is not a valid objection that the testimony would be inadmissible at trial, so long as it appears reasonably calculated to lead to the discovery of admissible evidence.
When can a deposition be used as evidence at trial? To impeach the deponent, for any purpose by an adverse party if the deponent is a party or a party's officer, and for any purpose if the witness is dead, far away, unable to attend due to age, sickness, or imprisonment, or cannot be subpoenaed.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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