June 18, 2014 Articles

The Problem of the Old Deposition and a New Party at Trial

A deposition needs to be admissible, and that may depend on who is a party at the time of trial.

By Michael Lowry

There are different theories on the best and worst tactics for deposition practice. Even if best practices are followed and favorable deposition testimony is obtained, the shifting sands of litigation might prevent using that testimony at trial. The parties to litigation may change between the filing of a complaint and trial. This can be problematic if a party joins the case after significant discovery occurs. Often, some of these problems are relieved by permitting the newly joined party time to redepose the witnesses it believes are necessary.

For an example of the potential complications, assume the star witness in the case was deposed out of state and gave testimony very favorable to your client. A new party later joins the case, obtains a transcript of deposition 1, and is allowed to redepose the star witness. In deposition 2, the star witness testifies that he read the transcript of deposition 1 to prepare and did not wish to make any changes to that testimony. The star witness’s testimony from deposition 2 is consistent with deposition 1 but not nearly as clear, concise, or persuasive. At the time of trial, the star witness will not attend voluntarily and is beyond subpoena power. Your client wants to use deposition 1. The new party objects and states that only deposition 2 can be used. What happens?

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