Episode 151 - Lessons from the Front Lines: Using Deposition Transcripts From One Case as Affidavits in Others

In this episode, Jim Garrity spotlights a new ruling on a little-known but powerful tool: the use of depositions as affidavits. As Garrity discusses, a deposition does not need to meet the requirements of trial-oriented Fed. R. Civ. P. 32 (which requires a showing that the party against whom the deposition is offered had notice and a chance to examine the deposition) when it is offered in proceedings that allow testimony by affidavit, such as at summary judgment.SHOW NOTESSurety v. Co. v. Dwight A. Herald, et al., Case No. 1:23-cv-00086-GNS-HBB, 2025 WL 627523 (W.D. Ky. Feb. 26, 2025) (deposition/examination under oath of witness taken in underlying state-court personal injury could be used in federal declaratory judgment actions at summary judgment time, as deposition meets form of affidavit)Diamonds Plus, Inc. v. Kolber, et al., 960 F. 2d 765 (8th Cir. 1992) (deposition need not be admissible at trial to be properly considered in opposition to motions for summary judgment; deposition inadmissible at trial because one of the defendants did not receive proper notice and did not attend the deposition was properly used to create issues of fact justifying denial of summary judgment)Hoover v. Switlik Parachute Co., 663 F.2d 964, 966-67 (9th Cir. 1981) (“Rule 56 ... plainly allows consideration of “affidavits” and we find nothing which requires that term to be construed within the limitations of Rule 32(a).”).First Gaston Bank of North Carolina v. City of Hickory, 691 S.E.2d 715 (Ct. App. N.C. 2010) (citing cases rejecting proposition that FRCP 32 limits use of depositions in proceedings where evidence in affidavit form is admissible; pointing out that to the extent a party objects that they didn’t have an opportunity to cross-examine a witness whose deposition from some other cases being offered, “the same objection can frequently be made as to affidavits filed in connection with motions for summary judgment”)Tingey v. Radionics, 193 F. App'x 747, 765–66 (10th Cir. 2006) (reversing summary judgment where trial court, relying on FRCP 32, excluded from consideration in opposition to summary judgment a deposition that plaintiff took of physician in separate state proceeding, where defendant was not party to that proceeding and had not been given notice of deposition; depositions can be used as affidavits in proceedings where affidavits are admissible; to illustrate, “[p]arties may file affidavits in support of summary judgment without providing notice or an opportunity to cross-examine the affiant. See Fed.R.Civ.P. 56(c). The “remedy” for this non-confronted affidavit testimony is to file an opposing affidavit, not to complain that one was not present and permitted to cross-examine when the affidavit was signed. For this reason, the Ninth Circuit has permitted a party to introduce deposition testimony for summary judgment purposes against a party who was not present at the deposition, by construing the deposition as an affidavit. Hoover v. Switlik Parachute Co., 663 F.2d 964, 966–67 (9th Cir.1981)”)Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 751 (11th Cir. 2002) (without analyzing scope and extent of application of FRCP 32, court broadly said that “Depositions are generally admissible provided that the party against whom they are admitted was present, represented, or reasonably noticed, Fed.R.Civ.P. 32(a), and are specifically allowed in consideration of summary judgment. Fed.R.Civ.P. 56(c). A deposition taken in a different proceeding is admissible if the party against whom it is offered was provided with an opportunity to examine the deponent. Fed.R.Evid. 804(b)(1).”)Fed. R. Civ. P. 56(c)(1)(A) (explicitly allowing citation to depositions for or against summary judgment)8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2142 (1970))) (as are at least as good as affidavits and should be usable whenever an affidavit would be permissible, even where the conditions or requirements for use at trial under rule 32 are not met)