Alternative Depositions: Practice and Procedure
| Publication year | 1990 |
| Pages | 57 |
| Citation | Vol. 01 No. 1990 Pg. 57 |
1990, January, Pg. 57. Alternative Depositions: Practice and Procedure
Any attorney who has been involved in litigation is familiar with the deposition in its common form. The parties are given notice of the deposition, and a subpoena is served, if necessary. The deponent and the attorneys appear in accordance with the notice, the deponent is sworn and his or her testimony is taken down stenographically by a court reporter. Once the testimony is transcribed, it is given to the deponent to review. The vast majority of depositions follow this pattern.
However, the Colorado Rules of Civil Procedure ("C.R.C.P.") provide for a number of variations on this basic theme. This article discusses the following types of depositions:
1) depositions recorded by other than stenographic means;
2) telephone depositions;
3) depositions of corporations, including C.R.C.P. 30(b)(6) depositions; and
4) depositions before filing an action or while an appeal is pending.
Generally, deposition testimony is taken down stenographically and transcribed by a court reporter. It is also possible to record a deponent's testimony by other means. This can be arranged by stipulation pursuant to C.R.C.P. Rule 29 or by court order pursuant to C.R.C.P. Rule 30(b)(4). The two most common methods are audiotape and videotape depositions.
The primary reason for using an audiotape recording is that it is less costly than stenographic recording. The primary reason for using videotape is to permit the jury actually to hear and observe a witness who would not otherwise be available for trial.
The mandatory procedural requirements for recording a deposition on audiotape were established by the Colorado Supreme Court in Sanchez v. District Court in and for the County of Larimer,(fn1) and are now incorporated in C.R.C.P. Rule 121 § 1-13. Two separate tape recorders with separate microphones must be used to record the testimony. An independent operator is not required. Testimony proceeds as at any other deposition, except speakers must identify themselves each time they speak.
After the deposition is completed, a transcript is made at the expense of the party who requested the audiotape deposition. Copies of the transcript must be furnished to the deponent and to all opposing parties.
One tape is to be retained by the party requesting the deposition and the other delivered to the adverse party. In situations with more than one adverse party, arrangements to obtain a duplicate of the tape recording should be addressed in the stipulation or proposed order.(fn2)
C.R.C.P. Rule 121 § 1-13 sets forth the minimum requirements for a valid audiotape deposition. Once these requirements are met, the stipulation or proposed order can be tailored to meet counsel's desires and needs in the particular case.
There are no Colorado rules or cases to provide specific guidance as to the use of videotape recordings. Typically, counsel will use a videotape deposition to perpetuate trial testimony of a witness who will not be available for trial. While videotape is somewhat costly, viewing a videotape of the witness is more interesting to a jury than listening to lawyers recite transcribed testimony.
In drafting a stipulation or court order, the parties must agree on who will operate the videotape equipment and where the deposition will take place. A number of local reporting services now offer videotape deposition services. Most provide this service in the attorney's office or at the reporting service's facilities. It is advisable to use a professional to operate the cameras and recorders at the time the testimony is taken and on replay in court.
Issues as to camera angle and who will be shown on the screen must be addressed in the stipulation or the proposed order. In order to stimulate the jury view of a witness, it is generally advisable to show only the witness, seated, from the waist up. It is possible, via split screen, to show both the questioning attorney and the witness or to cut from the witness to the questioning attorney. However, this adds to the cost of the deposition and distracts the jury's attention from the witness.
The most important item that counsel should deal with in the stipulation or order is the manner in which objections...
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