Chapter 14 - § 14.1 AGAINST ADVERSE PARTY

• Jurisdiction: Colorado

§ 14.1 AGAINST ADVERSE PARTY

Colorado

➢ Use of Deposition Subject to Rules of Evidence. Subsection (a)(2) provides that "[t]he deposition of a party . . . may be used by an adverse party for any purpose." Pursuant to this rule, a plaintiff may introduce a portion of an available defendant's deposition as evidence, rather than call the defendant as his or her witness. Scruggs v. Otteman, 640 P.2d 259, 261 (Colo. App. 1981). Deposition testimony, including videotaped testimony, may be used in opening statements and closing arguments, may be played at any time during trial, and may be played for and commented on by witnesses. However, the use of a party's deposition by an adverse party is nevertheless subject to other rules of evidence, and admissibility is subject to a showing of legitimate purpose. Stauffer v. Karabin, 492 P.2d 862, 866 (Colo. App. 1971) (distinguished on an unrelated issue by Bloskas v. Murray, 618 P.2d 719, 722 (Colo. App. 1980)).

➢ Cumulative Evidence in Deposition Not Admitted. Even though a party generally may offer the deposition of an adverse party for any purpose, it is not reversible error for the trial court to exclude the deposition if it would be cumulative of live testimony. Johnson v. Bd. of County Comm'rs, 676 P.2d 1263, 1265-66 (Colo. App. 1984).

➢ Use of Deposition of Adverse Party Instead of Calling as Witness. A party may introduce a portion of an available adverse party's deposition as substantive evidence, rather than call the adverse party as his or her witness, if no other rules of evidence are violated and if it is established to be relevant and non-cumulative. "The trial court has discretion to exclude repetitious matter and to require counsel to identify the relevant portions of a deposition." Scruggs v. Otteman, 640 P.2d 259, 261 (Colo. App. 1981).

➢ Use in Different Action. A deposition taken of an adverse party is admissible in a separate action if it involves the same parties (or their representatives or successors in interest) and the same subject matter. C.R.C.P. 32(a)(4). Linker v. Linker, 470 P.2d 882, 886 (Colo. App. 1970).

➢ Use of Deposition; Party Available. The trial court's exclusion of the proffered defendant's deposition under C.R.C.P. 32(a)(2) was not reversible error, where the defendant was available and could have been cross-examined by the plaintiff. Devenyns v. Hartig, 983 P.2d 63, 68 (Colo. App. 1998).
➢ Use of Deposition; Party Available. Under C.R.C.P. 32(a)(2), if before admission a

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