Episode 161: Unfinished Testimony - Can You Use That Partial Transcript?

Today, Jim Garrity examines a critical issue in trial practice: whether an incomplete deposition—cut short when the deponent becomes unavailable—can be admitted at trial, particularly when the opposing party had no opportunity for cross-examination. Drawing on a new Sixth Circuit Court of Appeals decision and Rule 32 of the Federal Rules of Civil Procedure, Jim explores the court’s decision, the key factors trial lawyers should argue for or against exclusion, and the balancing test that should be used when essential testimony hangs in the balance. Discover practical strategies for both offering and opposing use of incomplete deposition transcripts in high-stakes litigation. Thanks for listening!SHOW NOTESInsight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)