Deposition (law)
Depositions by written interrogatories first appeared around the mid-15th century as a procedure for discovery, factfinding, and evidence preservation in suits in equity in English courts.
[1][2] They differed radically from modern depositions in three ways: (1) the party seeking a witness's testimony merely propounded written interrogatories which were read out loud by a master or court-appointed commissioner to the witness in a closed proceeding without parties or counsel present; (2) the witness's first-person oral answers under oath were not recorded verbatim, but were summarized by the master, commissioner, or a clerk appointed by them into a third-person continuous narrative; and (3) the resulting written product (also called a "deposition") was filed with the court under seal and its contents were not revealed or "published" to the parties until shortly before trial.
[1][2][3] The modern deposition by oral examination began to develop in New York in the early 19th century when Chancellor James Kent of the New York Court of Chancery allowed masters to actually examine witnesses (that is, pursue lines of questions in real time based on the witness's preceding answers) rather than read static interrogatories (which tended to be broadly worded and resulted in very inefficient depositions).
[1] During the late 19th century, summary narratives by court-appointed examiners were replaced by verbatim transcripts by court reporters.
Finally, the merger of common law and equity procedure led to the adoption of live testimony in open court as the default method of taking trial evidence in all trials (equity had used depositions by written interrogatories in lieu of live testimony), which reduced the deposition to its modern role in American civil procedure as a discovery and evidence preservation device.
Depending upon the amount in controversy and the ability of the witness to appear at trial, audio or video recordings of the deposition are sometimes taken as well.
In extreme situations, one side or the other may ask the reporter to mark the record, then may suspend the deposition, demand a rush transcript, and file an emergency motion to compel a response, for a protective order, or for sanctions.
Some courts have magistrates or discovery commissioners who are on call for such contingencies, and the parties are supposed to use them to referee such disputes over the telephone or via email before resorting to filing motions.
In extreme circumstances where the relationship between the lawyers, parties, or witnesses has totally broken down, the court may require the use of a discovery referee who will have authority to sit in on depositions and rule immediately on objections as they are presented, may order that all further depositions take place in court in the presence of a judge, or may grant terminating sanctions if the record is already clear as to which party or attorney is responsible for the breakdown in civility.
[16] Under FRCP 30(d)(1) and its state counterparts, a deposition normally must take place for no longer than seven hours on one day per each deponent, unless otherwise stipulated by the parties or ordered by the court.
However, in January 2013, the California legislature amended the Civil Discovery Act to fall in line with the federal rule, by requiring that depositions will typically be limited to seven hours of total testimony.
"[17] After the deposition, the transcript is then published in the form of a hardcopy booklet, which is provided to the deponent as well as to any party to the suit who wishes to purchase a copy.
Finally, the booklet includes the court reporter's certificate in which they formally certify the truth and accuracy of the transcript.
[19][20] The chief values of obtaining a deposition, as with any discovery proceeding, is to give all litigant parties in a contested case a fair preview of the evidence, and to provide support documents for further trials and dispositive motions.
The process provides a "level playing field" of information among the litigants and avoids surprises at trial (traditionally regarded as an unfair tactic).
Deposition of the opposite party is often used to produce self-incriminating statements from the deponent, also document identification questions can make exhibits admissible for hearings and summary judgment motions.
Accordingly, while most depositions are not videotaped, opposing counsel may use the opportunity to get an impression of the witness's affect and appearance, because these are telling factors as to how that person will present in front of a jury.
Furthermore, deposition transcripts are frequently submitted in support of motions for summary judgment as evidence that there is no triable issue of fact.
The moving party may use transcripts to argue that even if all the testimony given at deposition was given again at trial, no reasonable factfinder could find in the opponent's favor on a material issue of fact.
The rationale is that generally, a witness must give consistent testimony on all material issues of fact both at deposition and at trial (unless there is a very good reason for changing one's answers), or else the inconsistencies can and will be used to impeach his credibility.
