osition testimony at trial. Glass v. Metro. Wash. Airport Auth., Civil Action No. 1:23cv1449 (DJN), 2024 U.S.Dist. LEXIS 66062 (E.D.Va. April 10, 2024).In Glass, plaintiff Susan Glass alleged she was injured when struck by a cleaning cart at Washington National Airport. Glass filed a “Motion for Leave to Conduct De Bene Esse Depositions,” requesting leave to take the depositions of herself and her husband at an early stage of discovery in order to preserve their testimony for trial.The Use of Deposition Testimony at Trial Under Fed. R. Civ. P. 32Fed. R. Civ. P. 32 sets forth the procedures for admitting deposition testimony, and, as Judge Novak pointed out, the rule does not distinguish between discovery depositions and depositions taken for use at trial. Under the rule, any deposition may be admitted under specific circumstances, including if the witness resides more than 100 miles from the place of trial or cannot attend trial because of age, illness, infirmity, or imprisonment. See Fed. R. Civ. P. 32(a)(4). Here, the Glasses lived in Arizona, thousands of miles from the place of trial, and so easily met the rule’s requirements.The defendant objected that Susan Glass had chosen to file suit in the EDVA and so she could not take advantage of Rule 32 to admit her own deposition as trial testimony. Judge Novak swiftly knocked that argument aside, noting that, by its terms, Rule 32 allows the deposition of any witness, even a party, to be admitted into evidence.The Court’s Discretion to Exclude Deposition TestimonyJudge Novak held in Glass that while compliance with Rule 32 is necessary to admit deposition testimony, it is not sufficient. Rather, though Rule 32 does not mention any other requirements, Judge Novak found that admission of deposition testimony is subject to the court’s discretion. Because Susan Glass and her husband were of advanced age and it was alleged that Susan Glass had sustained a serious injury, Judge Novak concluded that she would suffer significant hardship to attend

e case, often as a fact finding mission to tailor later dispositive motions, discovery requests, and ultimately, trial testimony. A de bene esse deposition, on the other hand, is often taken much closer to trial, once it becomes apparent that a witness will not be available for live testimony. Rather than a proactive tool, the de bene esse deposition is considered a reactive tool.Protocol: Unlike discovery depositions, de bene esse depositions are almost always videotaped. Moreover, while counsel may limit organically their objections in a discovery deposition, or make general ongoing objections, a de bene esse deposition requires counsel to proactively and continuously object in “real time” as they would in open court – as the judge will be ruling on each objection prior to the streaming of the de bene esse deposition during trial.Presentation: Discovery deposition testimony is often cherry picked to suit a moving party’s dispositive motions or trial testimony, as is permitted by the Federal Rule of Civil Procedure 32(a)(4). A de bene esse deposition, however, by its sole purpose of offering testimony in lieu of a live witness, is limited to the same rules of “live” presentation; a party cannot pick and choose which portions of the deposition are played for the court – the parties must take the probative testimony and the prejudicial testimony alike as it is played for the judge or jury.De Bene Esse Depositions and the Federal Rules Of note, the process and procedures for taking a de bene esse deposition are not directly contemplated by the Federal Rules of Civil Procedure or the Federal Rules of Evidence, and few jurisdictions (such as the State of New Jersey and the District of North Carolina) have outlined procedures for noticing, taking, and presenting evidence from these types of proceedings. The term “de bene esse” does not appear anywhere in either statute. However, Courts generally hold that de bene esse depositions are still subject to the rules of Federal Rule of Civil Procedure 32(a)(4), which

Such articles can still be probative of what a skilled person would have understood at the time of filing" CVC contended, citing Plant Genetic, 315 F.3d at 1344.Finally, turning to Dr. Marrafini's testimony, CVC argued that deposition testimony is admissible under "various hearsay exceptions" (Fed. R. Evid. 804(b)(1),(3); Fed. R. Civ. P. 32(a)(8)) and ToolGen had had the opportunity to cross-examine him on this testimony and waived it, citing Fed. R. Evid. 801(d), 803(b)(and making the further point that to the extent that Dr. Marrafini is indeed not available this provides further support for the Board's consideration of this testimony, under Fed. R. Evid. 804(b)(1); Cf. Fed. R. Civ. P. 32(a)(4)).ToolGen's Reply addresses CVC's argument that expert witnesses are permitted to rely on assumptions by asserting that they are not permitted to rely on incorrect or unsupported legal assumptions or ones that are contrary to facts the witness admits, citing Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 389 (5th Cir. 2009).

56(e) Use of depositions. Depositions taken under this rule may be used for discovery, to contradict or impeach the testimony of a deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence and the Federal Rules of Civil Procedure, particularly Federal Rule of Civil Procedure 32. 2200.

Novartis sought to use the deposition testimony of defendant's expert at trial under Fed.R.Civ.P. 32(a)(4)(B). As explained by the district court, "the Rule provides that a party may use the deposition of a witness for any purpose" 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."

epositions can be used to defeat summary judgment motions in any type of litigation. (Due to Virginia’s limits on the use of depositions, another pretrial discovery tool – requests for admission – has become the preferred method of building a case for summary judgment.)The case is a reminder that, in the federal system and in every other state jurisdiction, depositions are a potent pretrial device for efficiently managing litigation. Rule 56 of the Federal Rules of Civil Procedure (Summary Judgment) specifically mentions deposition testimony as being among the types of evidence that a trial court may consider when ruling on a motion for summary judgment.In practice, deposition testimony is frequently deployed in support of summary judgment motions. Stenographically produced deposition transcripts and depositions on written questions are both acceptable.In fact, under the right circumstances, even deposition testimony from a different case can be offered in support of summary judgment. Rule 32 of the Federal Rules of Civil Procedure (Using Depositions in Court Proceedings), provides that a deposition taken “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.”In many jurisdictions, parties need not submit the entire deposition transcript. Excerpts are permitted and often encouraged.The ability of both plaintiffs and defendants to obtain summary disposition or settlement of cases in which the facts are not really in dispute is vital to the efficient operation of the civil justice system. Depositions are a key procedural device – perhaps the best procedural device – for discovering the facts in a contested matter and thereby bringing the case to a quick, cost-effective, and just conclusion without the need for protracted trial proceedings.Remote depositions, as we’ve noted before, are even better.

Can a corporate party affirmatively use deposition testimony from its own 30(b)(6) witness at trial? It depends.Corporate Witness Testimony at the Deposition StageA quick primer on corporate witnesses under Federal Rule of Civil Procedure 30(b)(6). If an organization, such as a corporation, receives a notice of deposition under Rule 30(b)(6), it must designate one or more individuals to testify at a deposition about information known or reasonably available to the organization. If the deponent has no personal knowledge of the subject matters of the deposition as designated in the notice, then the corporation must educate its designated witness using corporate documents and other information available to the corporation.Different Treatment of Corporate Witness Testimony at the Trial StageAt the trial stage, Federal Rule of Civil Procedure 32(a)(3) provides that an adverse party may use a corporate witness’s deposition testimony for any purpose. Courts are divided, however, on whether the corporate party can use its own non-adverse witness’s deposition testimony as evidence at trial.Some courts do not permit corporate parties to admit their non-adverse witness’s deposition testimony and require witnesses to have personal knowledge of their testimony, as demonstrated by a recent decision out of the California Second District Court of Appeal. The plaintiffs alleged exposure to asbestos from cosmetic talc products starting in the mid-1970s. In response to a deposition notice, the defendant designated its vice president to offer testimony based on documents from the 1970s that she reviewed. The defendant succeeded at summary judgment based on the vice president’s deposition testimony and declaration. The Court of Appeal, however, reversed the district court’s grant of summary judgment. It ruled that the defendant’s vice president wa

022, No. 20-2389); Fed R. Evid. 701. The court determined all three brothers worked around or with asbestos-containing products extensively and their inferences about asbestos-related dust were rationally based on their own experiences.Next, individual defendant LIGA moved to exclude opinions about the dust on Calise Cortez’s work clothing in 1967. The plaintiffs testified their father, Calise, returned from work at the Nine Mile Point power plant covered in white dust. The decedent later concluded such dust was asbestos dust during his own employment since the presumably same white dust covered his clothing as well. The court determined his testimony was “extrapolation” and not based on the witness’s perception from the relevant period. Thus, this testimony was too speculative to be probative and hearsay. The court also granted LIGA’s motion to exclude the deposition testimony of Gustav von Bondugen from an unrelated case. LIGA argued Mr. von Bondugen’s deposition did not comply with Federal Rule of Civil Procedure 32(a)(8). The court agreed; the previous matter did not involve the same issues with the parties as the case at bar.Individual defendant Hopeman Brothers, Inc. sought to exclude evidence of its work at Halter Marine, stating there was no evidence to establish it installed asbestos-containing wallboard at that location. However, the court denied this motion, pointing to its previous denial of defendant Westinghouse’s summary judgment motion on the same issue. Finally, Westinghouse moved to exclude an in-house memorandum from 1987 under Rules 401, 403, and 801 of the Federal Rules of Evidence. The court found this memorandum about document perseveration was inadmissible under hearsay and more prejudicial than probative.Read the full decision here

However, different standards apply for using deposition testimony from an adverse party versus a non-party witness.We will discuss the use of both party and non-party deposition testimony under California and federal law, focusing on regulations established by the California Code of Civil Procedure (CCP) section 2025.620 and Federal Rule of Civil Procedure (FRCP) 32.How to Use a Deposition as Substantive Evidence at TrialThe FRCP 32 includes key provisions that discuss the permissibility of depositions as evidence at trial.A deposition may be used by any party to contradict or impeach the testimony given by the deponent as a witness or for any other purpose allowed by the FRCP, including refreshing the witness’s memory at the trial or hearing.You can also use the deposition of a witness if they are unavailable due to a few possible grounds:They are more than 100 miles from the trialThey reside out of stateThey are deceasedTo introduce the testimony as substantive evidence at trial, say to the judge, “Your Honor, may I read to the jury page number __, line __ of the deposition of ______, who resides outside of the State of California?”It’s best practice to also ask if you can publish or present the testimony so the jury and judge can read along. You should do this while the witness is on the stand and reviewing their testimony as you read each question and answer.

The Federal Circuit, applying Eighth Circuit law appropriate for reviewing the District Court's decision here, noted that in the Eighth Circuit evidence to be considered on summary judgment must be "admissible evidence," citing Crews v. Monarch Fire Prot. Dist., 771 F.3d 1085, 1092 (8th Cir. 2014) (emphasis in original) (citing Nooner v. Norris, 594 F.3d 592, 603 (8th Cir. 2010). Under the applicable abuse of discretion standard, the Federal Circuit found no abuse (noting that the witness did not testify at trial and "would not [have been] admissible at trial under Federal Rule of Evidence 801(d)(2)" nor Federal Rule of Civil Procedure 32(a)(3) relating to the testimony of an adverse party. The opinion also distinguished seemingly contrary precedent in General Mills Operations, LLC v. Five Star Custom Foods, Ltd., 703 F.3d 1104, 1110 (8th Cir. 2013), because the disputed testimony was not by an adverse party's witness.