RULE 32. USING DEPOSITIONS IN COURT PROCEEDINGS

Effective Date: 3/1/2011

(a) Using Depositions.

(1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:
(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Rules of Evidence if the deponent were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
(2) Impeachment and Other Uses. A party may use a deposition to contradict or impeach the testimony given by the deponent as a witness or for any other purpose allowed by the Rules of Evidence.
(3) Deposition of Party, Agent, or Designee. An opposing 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).
(4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds that:
(A) the witness is dead;
(B) the witness is more than 100 miles from the place of hearing or trial, or is outside the state, unless it appears that the witness's absence was procured by the party offering the deposition;
(C) the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
(D) the party offering the deposition could not procure the witness's attendance by subpoena; or
(E) on motion and notice, 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.
(5) Limitations on Use.
(A) Deposition Taken on Short Notice. A deposition must not be used against a party who, having received less than 14 days notice of the deposition, promptly moved for a protective order under Rule 26 (c)(2) requesting that it not be taken or be taken at a different time or place - and this motion was still pending when the deposition was taken.
(B) Party Could Not Obtain an Attorney. A deposition taken without leave of court under the special notice provision of Rule 30(a)(2)(A)(ii) 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 the party at the deposition.
(6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an opposing party may require the offeror to introduce other parts that in fairness may be considered with the part introduced, and any other party may itself introduce any other parts.
(7) Substituting a Party. Substituting a party under Rule 25 does not affect the right to use a deposition previously taken.
(8) Deposition in Earlier Action. A deposition 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. A deposition previously taken may also be used as allowed by the Rules of Evidence.

(b) Objections to Admissibility. 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.

(c) Form of Presentation. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may also provide the court with the testimony in nontranscript form. On any party's request, deposition 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.

(d) Waiver of Objections.

(1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.
(2) To the Officer's Qualification. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made:
(A) before the deposition begins; or
(B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
(3) To the Taking of the Deposition.
(A) Objection to Competence, Relevance, or Materiality. An objection to the deponent's competence - or to the competence, relevance, or materiality of the testimony - is not waived by a failure to make the objection before or during the deposition, unless the ground for the objection might have been corrected at that time.
(B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:
(i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition.
(C) Objection to a Written Question. 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, if the question is a recross-question, within seven days after being served with it.
(4) To Completing and Returning the Deposition. An objection as to how the officer transcribed the testimony - or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition - is waived unless a motion to suppress is made promptly after the defect or irregularity becomes known or, with reasonable diligence, could have been known.

Rule 32 was amended, effective January 1, 1980; July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2011.

Subparagraph (a)(5)(A) was amended, effective March 1, 2011, to change the time to limit the use of a deposition against a party from less than 11 days notice of the deposition to less than 14 days.

Subparagraph (d)(3)(C) was amended, effective March 1, 2011, to increase the time for waiver of an objection to a written question from five to seven days.

Rule 32 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

SOURCES: Joint Procedure Committee Minutes of April 29-30, 2010, page 13; January 29-30, 2009, pages 27-28; April 27-28, 1995, pages 7-8; January 26-27, 1995, page 16; April 20, 1989, page 2; December 3, 1987, page 11; November 30, 1984, pages 31-32; October 19, 1984, page 20; December 11-12, 1980, pages 2-3; October 30-31, 1980, pages 16-19; November 29-30, 1979, pages 6-7; April 26-27, 1979, pages 15-17; Fed.R.Civ.P. 32.

CROSS REFERENCE: N.D.R.Civ.P. 25 (Substitution of Parties), N.D.R.Civ.P. 28 (Persons Before Whom Depositions May Be Taken), N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedures),N.D.R.Civ.P. 30 (Depositions Upon Oral Examination), and N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written Questions); N.D.R.Ev. 106 (Remainder of or Related Writings of Recorded Statements), N.D.R.Ev. 607 (Who May Impeach), N.D.R.Ev. 611 (Mode and Order of Interrogation and Presentation), N.D.R.Ev. 603 (Prior Statements of Witnesses), and N.D.R.Ev. 804 (Hearsay Exceptions:Declarant Unavailable).

Effective Date Obsolete Date
03/01/2011 View
03/01/1996 03/01/2011 View