When Can You Use Your Client’s 30(b)(6) Deposition at Trial?
Summary
- Parties commonly designate portions of the depositions of their adversaries or of third parties to be used at trial.
- But what happens when a party wants to use deposition testimony from its own witness?
- In particular, what if that witness was a corporate party’s designee under Rule 30(b)(6) of the Federal Rules of Civil Procedure?
- This article explores when, and to what extent, a party may use its own 30(b)(6) deposition testimony at trial.
Background—Admissibility of Deposition Testimony
Deposition testimony is inadmissible hearsay unless it falls into an exception under Rule 32 of the Federal Rules of Civil Procedure or a hearsay exception under the Federal Rules of Evidence.
Rule 32 of the Federal Rules of Civil Procedure governs the use of deposition testimony at trial. Rule 32 creates an exception to the hearsay rule and allows the use of deposition testimony at trial when (A) the opposing party was present or represented at the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by another sub-part of the rule. Those sub-parts include using the deposition of an adverse party for any reason, as well as using deposition testimony for impeachment and when the witness is unavailable. For purposes of Rule 32, a witness is unavailable if that witness (a) is dead; (b) lives more than 100 miles from the place of trial, unless it appears that the witness’s absence was procured by the party offering the deposition; (c) the witness cannot attend because of age, illness, infirmity, or imprisonment; (d) the party offering the deposition could not procure the witness’s attendance by subpoena; or (e) “exceptional circumstances make it desirable” to allow the deposition to be used. Rule 804 of the Federal Rules of Evidence provides a similar exception allowing for the introduction of deposition testimony. Under Rule 804, there is an exception to the prohibition on hearsay when the declarant is unavailable. Under this rule, a witness is “unavailable” in the following scenarios:
- The witness is exempted from testifying because the subject matter of the testimony is privileged.
- The witness refuses to testify despite a court order compelling the testimony.
- The witness testifies to not remembering the subject matter.
- The witness cannot be present due to death, infirmity, or illness.
- The witness is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance.
©2024 Published in ABA Litigation Section Committee Articles, October 2024, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
