5.8 Use of Depositions at Trial

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

5.8 USE OF DEPOSITIONS AT TRIAL

5.801 Eastern District Deposition Designations.

Under E.D. Va. Civ. R. 30(F), if testimony is to be offered into evidence, counsel for the parties must review those depositions and:

A. For expert witnesses, extract a short statement of the expert's qualifications to be read to the jury;

B. Eliminate all unnecessary or irrelevant testimony;

C. Delete all objections and counsel statements or colloquy;

D. Submit any unresolved designation disputes to the court for a ruling before trial. Failure to do so will constitute a waiver of any party's objections to that designated testimony. In Norfolk, deposition objections are usually handled by the assigned magistrate judge, and not at the final pretrial conference; and

E. In all nonjury cases, a proffered deposition transcript must be accompanied with a summary of the witness's testimony that points out "the salient points to be noted by the Court." ¹⁴⁰¹

5.802 Fed. R. Civ. P. 30(b)(6) Depositions—Directors, Officers, and Managing Agents.

Counsel may employ Fed. R. Civ. P. 30(b)(6) to depose a corporation or other entity of topics designated. The entity defending such a deposition should be wary of the attendant obligations to prepare witnesses to testify regarding those issues. ¹⁴⁰² Parties must confer in good faith either before or promptly after the notice or subpoena is served. Also, a subpoena must advise a nonparty organization of its duty to confer and to designate each person who will testify.

In addition, however, the same rule may be used to depose "directors, officers, or managing agents" ¹⁴⁰³ without the issuance and service of a subpoena. This may prove to be an effective tool in litigating against foreign corporations and other entities. ¹⁴⁰⁴

5.803 Deposition Errata Sheets.

Courts in the Fourth Circuit uniformly allow deponents to make minor form changes and corrections to transcription errors under Fed. R. Civ. P. 30(e). ¹⁴⁰⁵ On the issue of whether a deponent may make substantive changes, the courts in the Fourth Circuit are split. Compare Foutz v. Town of Vinton, ¹⁴⁰⁶ allowing substantive changes but subjecting the deponent to cross examination on the same, with E.I. du Pont de Nemours & Co. v. Kolon Industries, Inc., ¹⁴⁰⁷ allowing only technical errors to be changed.

At least one Western District court has ruled that a litigant may not make last-minute substantive changes to deposition testimony for the purposes of evading summary judgment. ¹⁴⁰⁸

5.804 Use...