Chapter 14 - § 14.1 • AGAINST ADVERSE PARTY

• Jurisdiction: Colorado

§ 14.1 • AGAINST ADVERSE PARTY

Colorado

➢ Use of Deposition Subject to Rules of Evidence. 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).
➢ 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. 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 (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 (Colo. App. 1998).

➢ Use of Deposition; Party Available. Under C.R.C.P. 32(a)(2), if before admission a showing is made of some legitimate purpose, a party may introduce a portion of an opposing party's deposition as evidence, rather than call the party as a witness, regardless of the deponent's availability to testify in person. Devenyns v. Hartig, 983 P.2d 63 (Colo. App. 1998).

➢ Use of Deposition; Party Available. A party's deposition may be properly received as substantive evidence. Morris v. Askeland Enters., Inc., 17 P.3d 830 (Colo. App. 2000).

➢ Use of Deposition; Status of Witness as Party. For purposes of C.R.C.P. 32(a)(2), the deponent must be a party at the time the deposition is offered into evidence; the rule does not apply when the deponent was a party at the time the deposition was taken but not when the proffer was made. Rojhani v. Meagher, 22 P.3d 554 (Colo. App.

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