In this episode, Jim Garrity looks at a tactic expressly allowed by the rules, but almost always prohibited by judges, specifically the reading of the entire deposition of an adverse party's witnesses to the jury. The practice seems authorized by Fed. R. Civ. P. 30(a)(3) and similar language in many state court rules, which say the deposition of an adverse party can be used “for any purpose” at trial. Yet while many lawyers have tried, few have succeeded, if those deponents are available to testify live. Hear what the cases say, and learn about the one exception where courts have allowed the entirety of a deposition to be read whether the deponent is available or not. As always, the cases upon which this episode is based are listed below, with citations and parentheticals. You’re welcome!

SHOW NOTES

Short v. Marvin Keller Trucking, Inc., 2021 WL 5410888 (E.D. Kentucky Nov. 18, 2021) (declining to allow party to read entirety of depositions at trial when those deponents are available to testify live)

Gonzalez Production Systems, Inc. v. Martinrea International, Inc., 2015 WL 5439254, 310 F.R.D. 341 (E.D. Mich. 2015) (declining to allow entirety of depositions to be read at trial where deponents can be called live)

Stansbury v. Hopkins Hardwoods, Inc., 2018 WL 2977439 (W. D. Ky. Mar. 2, 2018) (same; declining to allow admission of entirety of depositions, while allowing their use in part as needed for ordinary impeachment)

AWGI, LLC v. Atlas Trucking Company, LLC, 2019 WL 7298766 (E. D. Michigan December 30, 2019 (declining to allow defendants to read entirety of depositions at trial where witnesses are available to testify live)

Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983 (8th Cir. 1999) (affirming trial court rulings, saying, amonther things, that precluding a party from reading the deposition testimony of an available adverse party witness is at worst harmless error)

Kellogg v. Wilcox, 286 P.2d 114 (Wash. S. Ct. 1955 en banc) (even where rule allows party to use deposition of adverse party for any purpose, it is not mandatory for a trial court to admit the deposition in evidence whenever offered by the opponent)

Estate of Thompson v. Kawasaki Heavy Industries, Ltd., 291 F.R.D. 297, 2013 WL 1248675 (N.D. Iowa Mar. 14, 2013) (allowing use of corporate representative deposition in its entirety, notwithstanding availability of designee to testify live at trial)