Episode 63 -About That Pesky Notice Language (For Use in Discovery "And/Or At Trial")

In this episode, Jim Garrity explores the effect of language added by many litigators in their notices that the deposition may be used (apart from discovery purposes) at trial, in lieu of live testimony by the deponent. But does simply declaring this make it so? Does this eliminate the need to prove unavailability before the deposition can be read? Garrity discusses what courts have to say about the ramifications of adding this language, and offers practice pointers both for lawyers who want to maximize their odds of using depositions in lieu of, and for those who want to oppose the use of depositions as a substitute for live testimony. As always, cases upon which this episode is based are in the show notes below. Thanks for following this podcast!SHOW NOTESJoseph v. Gibliant, 590 So.2d 841 (1991) (court allowed use of deposition at trial where deposition notice said that it may be used at trial, and where witness had promised to appear without subpoena, but then failed to do so)Dockery v. State, 504 N.E.2d 291 (Ind. Ct. App. 1977) (allowing deposition at trial where examining party’s notice specifically stated deposition was for use in discovery or at trial)Descamps v. Kripke, 2000 WL 1434134 (Ohio Ct. App. 2000) (court allowed use of deposition where notice said deposition may be used at trial, where witness had moved to another state, and where there was no evidence proponent of deposition caused witness’ unavailability)Fishman v, Liberty Associates, Inc., 196 So. 493 (3d DCA 1967) (deposition allowed at trial in lieu of live testimony where notice said deposition may be so used, and where witness traveled beyond reach of court at time of expected testimony)HCP Properties – Fair Oaks of Fairfax VA LLC v. County of Fairfax, 102 Va. Cir. 160 (deposition allowed at proceeding on merits where notice indicated it may be used in that manner)Webster v. Holly Hill Lumber Company, 234 S.E.2d 232 (S. Ct. South Carolina 1977) (reversing verdict and remanding for new trial,  finding that there was no agreement to use deposition at trial, even in light of announced “stipulation” at deposition that deposition could be used in lieu of live appearance)Fed. R. Civ. P. 32, Using Depositions in Court Proceedings, subsection (a)(4), Unavailable Witness