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Don’t Overlook the Opportunity in Plaintiff’s Deposition of Defense Witnesses

William Clay Massey


  • In civil trials involving corporate defendants, the plaintiff's case-in-chief is presented first, potentially leading the jury to form opinions before the defendant can present its side.
  • Defense lawyers can leverage opportunities during the plaintiff's depositions to introduce evidence that provides explanations, context, and a complete picture of the case, ensuring the jury is not misled.
  • Rule 32(a)(6) allows the introduction of other parts of a deposition that are relevant and should be considered with the part introduced, offering a chance for defense examination to be presented.
  • The application of the fairness standard under Rule 32(a)(6) varies among jurisdictions, but the general purpose is to prevent the jury from misunderstanding the true facts.
Don’t Overlook the Opportunity in Plaintiff’s Deposition of Defense Witnesses
Frances Twitty via Getty Images

Except in narrow circumstances, a corporate defendant’s case-in-chief at a civil trial must wait until after the plaintiff’s case-in-chief. As a result, a jury will hear and see the plaintiff’s selected evidence first. The defendant cannot call any witnesses or affirmatively present documentary evidence to provide explanation or context, or to tell its side of the story, until later in its own case. This sequence is dangerous for a corporate defendant. A jury may well make up its mind about the case based on the plaintiff’s evidence alone, before the defendant company has any chance to tell its story. A trial lawyer representing a corporate defendant therefore needs to look for opportunities to present those explanations, the context, and a complete picture through evidence in the plaintiff’s case-in-chief at trial so that the jury is not misled.

An important opportunity to present such evidence can be by defense counsel’s examination of their client and its employees in the plaintiff’s depositions. Defense counsel often overlook or disregard this opportunity by treating such depositions as only the plaintiff’s discovery, protecting the witness, and not giving the plaintiff’s lawyer more to explore at the deposition. Defense lawyers often tell their witness, “This is not your time to win the case. Just answer the questions the plaintiff’s lawyer asks you.” But this mindset can be a mistake and a missed opportunity. Plaintiffs usually take these depositions (almost always by videographic means) for the purpose of presenting the depositions in their cases-in-chief at trial. And the rules of procedure and evidence enable the company to examine itself and its employees at these depositions to provide exculpatory testimony at the same time in the plaintiff’s case-in-chief at trial.

Federal Rule of Civil Procedure 32(a)(6)

Federal Rule of Civil Procedure 32(a)(6) states, “If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.” This rule specifically for depositions parallels Federal Rule of Evidence 106, which more broadly provides, “If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.” These provisions together codify the “rule of completeness” in federal court.

Importantly, the “other parts” of the deposition referenced in Rule 32(a)(6) are not required to come only from the plaintiff’s examination. They can be from the defense lawyer’s examination as well. Also, the rule requires “the offeror” to introduce these other parts of the deposition “with the part introduced.” Therefore, when a plaintiff (the “offeror”) introduces the plaintiff’s deposition examination of a corporate defendant or its employees in the plaintiff’s case-in-chief at trial, this rule expressly provides an opportunity for the corporate defendant to require the plaintiff to introduce the defense examination at that time—providing important explanations and context for the jury to hear.

The Courts’ “Fairness” Consideration under Rule 32(a)(6)

Under Rule 32(a)(6), whether other portions of a deponent’s testimony must be played at the same time as the plaintiff’s portions of the testimony at trial depends on whether “fairness” requires it. “Fairness” is a factor only for introducing other portions of a deposition in an adversary’s case. Rule 32(b)(6) provides that “any party may itself introduce any other parts” at any other time, without application of the fairness standard.

Jurisdictions and courts can differ about how this fairness standard should be applied (or at least about how they articulate it). Some courts take a narrow view of what is allowed under this standard, while other take a more liberal view. In some states’ evidentiary rules, the standard is relevance, not fairness. For example, in Georgia, the rules states, “If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.” Ga. Code Ann. § 9-11-32(a)(5) (emphasis added); see also, e.g., Ohio Civ. R. 32(a)(4) (same); N.C. Gen. Stat. § 1A-1, R. 32 (same). Defense counsel therefore should study the standard applied in the jurisdiction in which the case is pending to decide whether and how to conduct an examination of the client or its employees at a plaintiff’s deposition of them.

But the general purpose of Rule 32(a)(6) is to avoid a jury’s misapprehension or misunderstanding of the true facts. Thus, even in jurisdictions applying a narrower view of the fairness standard, courts regularly consider whether the other portions of a deposition provide relevant context, clarification, or explanation of portions a plaintiff intends to play in the plaintiff’s case-in-chief. Particularly in complicated cases that involve long histories, industry practices and standards, or complex decision-making by the company, what necessarily constitutes such context, clarifications, and explanatory testimony can be broad for the purposes of Rule 32(a)(6).

Intersection with Rule 30(b)(6) and the Personal Knowledge Requirement

The rules of evidence generally do not allow a company to call a live witness in a representative capacity at trial to testify on matters outside the witness’s personal knowledge. However, Federal Rule of Civil Procedure 30(b)(6) (and state law equivalents) does allow (and, in fact, requires) a company representative to answer an adversary’s questions at a deposition on matters outside the representative’s personal knowledge based on information available to the company, including information provided by the company’s employees and records. A defendant can use this Rule 30(b)(6) deposition procedure as an opportunity to present helpful testimony efficiently from its representative on matters outside the representative’s personal knowledge at trial, including during the plaintiff’s case-in-chief, by conducting a planned examination of itself during the deposition.

Courts have differed about whether a party can offer the deposition testimony of a Rule 30(b)(6) witness who is not an employee or representative of an adverse party on matters outside the witness’s personal knowledge as evidence. Compare, e.g., Fed. Trade Comm’n v. Vyera Pharms., LLC, 2021 U.S. Dist. LEXIS 219964, at *5–6 (S.D.N.Y. Nov. 15, 2021) (excluding third-party 30(b)(6) testimony of witness without personal knowledge), and Indus. Eng’g & Dev. v. Static Control Components, Inc., 2014 U.S. Dist. LEXIS 141823, at *9–10 (M.D. Fla. Oct. 6, 2014) (“a corporate representative may not testify to matters outside his own personal knowledge” at trial), with Sara Lee Corp. v. Kraft Foods, Inc., 276 F.R.D. 500, 502–3 (N.D. Ill. Aug. 2, 2011) (overruling objection to third party’s 30(b)(6) testimony at trial on personal knowledge grounds), and Harvey v. THI of N.M. at Albuquerque Care Ctr., LLC, 2015 U.S. Dist. LEXIS 182700, at *63–64 (D.N.M. Mar. 31, 2015) (overruling objection to Rule 30(b)(6) testimony of defendants because Rule 30(b)(6) does not require personal knowledge). But cases in which courts have excluded such deposition testimony on personal knowledge grounds have not involved a plaintiff’s designation of portions of the deposition and a defendant’s responsive invocation of Rule 32(a)(6) to require a plaintiff to introduce other parts of the deposition. And if a plaintiff intends to play portions of a corporate defendant’s Rule 30(b)(6) deposition testimony in its case-in-chief, it stands to reason that Rule 32(a)(6) requires the plaintiff to also present the defendant’s examination of itself at the same deposition providing explanations, context, or clarifications related to matters addressed in the plaintiff’s portions, regardless of the representative’s personal knowledge. Indeed, the aforementioned parallel language in Federal Rule of Evidence 106 supports this reasoning, precluding any hearsay objection. See also 21A Wright & Miller, Federal Practice and Procedure, Evidence § 5078.1 (2d ed.) (“The majority of the state drafters who have considered the question agree that Rule 106 permits the use of inadmissible evidence to complete truncated writings and recordings,” and Rule 32(a)(6) “must at the very least operate as an exception to the hearsay rule”).


In sum, defense counsel should not overlook the opportunity a plaintiff’s deposition of defense counsel’s client and its employees may provide to present evidence supporting the client’s defenses in the plaintiff’s case-in-chief at trial. It can be a valuable tool for providing critical evidentiary context, clarifications, and explanations of the plaintiff’s evidence at a time when jurors likely will develop firm beliefs about the plaintiff’s claims, the company’s conduct, and the case generally.