Use of Deposition Testimony at Trial for Purposes Other Than Impeachment

• Publication year: 2000
• Pages: 43
• Citation: Vol. 29 No. 1 Pg. 43

29 Colo.Law. 43 Colorado Lawyer 2000.

2000, January, Pg. 43. Use of Deposition Testimony at Trial for Purposes Other Than Impeachment

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Vol. 29, No. 1, Pg. 43

The Colorado Lawyer
January 2000
Vol. 29, No. 1 [Page 43]

Specialty Law Columns
Civil Evidence
Use of Deposition Testimony at Trial for Purposes Other Than Impeachment
by Adam R. Eaton

Q. When can a party introduce deposition testimony as substantive evidence at trial

A. The deposition of an adverse party may be used for any purpose and the deposition of a witness, whether or not a party, may be used for any purpose if the court finds that the witness is unavailable to testify

Assumed Facts

Plaintiff Netbrowser, Inc. ("Netbrowser") has sued Defendant MicroSoftware, Co. ("Micro") and its president, Gates Billionaire ("Billionaire") in Colorado state court asserting claims for unfair trade practices and state antitrust violations. During discovery Netbrowser took the depositions of Billionaire; several of Micro’s employees, including software engineer Sally Programmer ("Programmer"); and Nona Partiere ("N.P."), a resident of California and president of non-party Internet, Co.

Plaintiff Netbrowser has placed Billionaire, Programmer, and N.P. on its trial witness list. Of these witnesses, Defendant Micro has listed only Billionaire who is in the courtroom at counsel’s table. Programmer is busy working in her cubicle at Micro’s Colorado facility, and N.P. is on the beach in California eagerly awaiting word from Wall Street on her company’s public offering. During the presentation of its case-in-chief, Netbrowser informs the Court that it wants to admit in evidence portions of the depositions of each of these three witness rather than call them to the stand to testify. Defendant Micro objects on the grounds that Billionaire is present in court, Programmer can be summoned by telephone, and Micro is willing to send its private jet to retrieve N.P. from California. Micro also argues that, in each instance, the deposition testimony is inadmissible hearsay. How should the court rule on the admissibility of each witness’ deposition testimony?

Discussion

Colorado Rule of Civil Procedure ("C.R.C.P.") 32(a)(2) provides that "the deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent . . . [of] a party, or a person designated...