§32.6 Analysis

• Jurisdiction: Washington

§32.6ANALYSIS

The following subsections analyze the prerequisites for using depositions at trial.

(1) Threshold criteria of CR 32(a) for use of depositions

CR 32(a) establishes the circumstances under which a deposition can be used at trial. In its first paragraph, the rule sets out threshold criteria for the use of depositions. The remainder of CR 32(a) regulates the particular circumstances and manner in which a deposition can be used.

(a)Proceedings at which depositions may be used

The rule provides that depositions may be used at trial, in connection with motions, and in interlocutory proceedings.

Practice Tip: To use depositions in connection with motions, the usual practice is to attach the pertinent portions of the transcript to an attorney's affidavit. Local rules on this point may vary. In King County, for example, the pertinent portions of the transcript must be either quoted verbatim in the supporting brief or attached to the brief. Important testimony should be highlighted. King County LCR7(b)(5)(B)(iv). In Pierce County, if a party seeks to introduce deposition testimony in connection with a motion for summary judgment, "such testimony shall be presented by affidavit containing excerpts of the testimony relied upon by the party using such testimony, with reference to the line and the page of source." Pierce County LCR 7(a)( 10)(B).

Whether and how depositions are used in arbitration is left to the discretion of the arbitrator. See RCW 7.04A. 170(2) ("On request of a party to or a witness in an arbitration proceeding, an arbitrator may permit a deposition of any witness, including a witness who cannot be subpoenaed for or is unable to attend a hearing, to be taken under conditions determined by the arbitrator for use as evidence in order to make the proceeding fair, expeditious, and cost-effective."); Balfour, Guthrie & Co. v. Commercial Metals Co., 93 Wn.2d 199, 203, 607 P.2d 856 (1980) (arbitrators solely determine "what facts, in what form, are necessary for their decisional process") (decided under former Chapter 7.04 RCW (repealed 2005)).

(b)The deposition must be admissible under the rules of evidence as though the witness were present and testifying

CR 32(a) requires that the deposition must be admissible under the rules of evidence as though the witness were testifying in person. This requirement poses the biggest hurdle for those offering to use deposition testimony. It also, of course, provides the best opportunity for knowledgeable counsel to exclude testimony.

Although CR 32(a) incorporates the rules of evidence in toto, a potential trap is created by the hearsay rules. Deposition testimony may be hearsay when used for other than impeachment. Although the transcript itself will almost always be either denned as non hearsay under ER 801 or fall within one of the hearsay exceptions, the transcript may contain "double hearsay." When there is double hearsay, a further hearsay exception, beyond that which permits introduction of the transcript, must exist. Absent an exception for the "double" hearsay portion, that portion of the deposition should not be admitted. See, e.g., Faust v. Albertson, 167 Wn.2d 531, 544-45, 222 P.3d 1208 (2009) (addressing whether a declaration discussed in an excerpt of a deposition admitted as evidence at trial could be admitted for impeachment purposes only).

Example: When the deponent testifies, in deposition, about what someone else said, the transcript itself is hearsay and the recitation by the witness in the transcript of what someone else said is "double hearsay."

For a thorough analysis of the interplay between Fed. R. Civ. P. 32 and the hearsay rules, see Scott E. Perwin, Use of Depositions in Federal Trials: Evidence or Procedure?, 16 Litig. 37 (1989).

(c)For a deposition to be used against a party, that party must have been present or represented at the taking of the deposition

CR 32(a) requires that the party against whom the deposition is offered must have been either present at the deposition, or "represented" at the deposition or, at a minimum, had reasonable notice of the deposition and chose not to attend.

Practice Tip: Deposition dates are frequently rescheduled by oral agreement or letter rather than by an amended notice of deposition. In the event a dispute arises regarding the new date, there will be no court paper establishing that date. Because it takes almost no time to prepare, an amended deposition notice should be mailed as a matter of course. Short of that, any oral agreement should be followed by a confirming e-mail or letter.

If a deposition is taken before a party is added to a lawsuit, there is a good argument that the deposition cannot be used against that party because the party was not "represented" or "present" at the deposition. Case v. Olwell, 1 Wn.App. 766, 463 P.2d 664 (1970) (decided under predecessor to CR 32). The rule provides, however, that substitution of parties pursuant to CR 25 (due to death, incompetency, transfer of interest, or separation from public office) does not affect the admissibility of the deposition. Thus, a party later added by substitution under CR 25 cannot claim not to have been "represented" at the deposition. CR 32(a).

(d)The myth of "perpetuation" depositions

Many lawyers believe that to be admissible at trial, the deposition must have been noted as a "perpetuation" deposition or that some other indication must be made, at or before the deposition, that it is being taken for "perpetuation" purposes. CR 32 does not include any such requirement generally. CR 32(a)(5) does, however, offer a limited circumstance when a "perpetuation" deposition can be used for a health care professional witness, provided certain notice requirements are met. See §32.6(6), below.

CR 27 provides for a "perpetuation" deposition in the limited situation when no case has been filed but there is a need to preserve someone's testimony. That little-used rule should not be read to impose a general "perpetuation" requirement for depositions beyond those specified in CR 32(a)(5).

(2)Circumstances when deposition testimony can be used

The rule addresses various circumstances in which deposition testimony can be used, including: (1) impeachment; (2) deposition testimony of a party (including managing agents, officers, etc.) by an adverse party; (3) when the witness is "unavailable" to testify at trial; (4) depositions from prior actions; and (5) when the "interests of justice" require admission of the deposition.

(a)Use of deposition testimony to impeach or contradict—CR 32(a)(1)

The rule expressly provides that a deposition can be used to impeach or contradict the testimony of the deponent as a witness. This is one of the primary reasons to take a deposition—to hold a witness to his or her story.

You are entitled to impeach your own witness under ER 607. You are not required to show that the witness is hostile or that the testimony is such that the party calling the witness was "taken by surprise," as was the case under prior law. See, e.g., Valley Land Office, Inc. v. O'Grady, 72 Wn.2d 247, 432 P.2d 850 (1967) (pre-CR 32 case requiring showing of surprise prior to impeaching one's own witness), overruled inpart on other grounds by Nordstrom v. White Metal Rolling & Stamping Corp., 75 Wn.2d 629, 453 P.2d 619 (1969).

Contrary to the federal rules, an argument can be made that you may have to show the witness the portion of the transcript at issue while using it for impeachment. Compare Fed. R. Evid. 613 (prior statement need not be disclosed to witness but must be shown to opposing counsel on request) with ER 613 (court, in its discretion, may require that prior statement be disclosed to the witness during examination concerning the statement as well as opposing counsel on request).

Impeachment (by prior inconsistent statements) of a witness whose testimony is presented through deposition is not permissible unless the witness was presented with the statements at the time of the deposition. Makoviney v. Svinth, 21 Wn.App. 16, 584 P.2d 948 (1978), review denied, 91 Wn.2d 1010 (1979).

(b)Use of depositions of parties, officers, directors, managing agents, and CR 30(b)(6) designees—CR 32(a)(2)

CR 32(a)(2) provides that the testimony of a party, or a party's officer, director, managing agent, or designated CR 30(b)(6) witness, may be used for any purpose. There is authority under the earlier equivalent of CR 32 that the admissibility of an adverse party's deposition is discretionary Kellogg v. Wilcox, 46 Wn.2d 558, 283 P.2d 677 (1955) (trial court properly excluded deposition of party opponent when party opponent was available to testify in person). The present view, however, is that the court should be extremely hesitant to exercise such discretion under this provision. See 3A Karl B. Tegland, Washington Practice: Rules Practice, CR 32, at 745 (6th ed. 2013).

When attempting to use testimony of a party's officer, director, or managing agent, keep in mind that the requisite status of an "officer, director, or managing agent" is determined as of the time the deposition is taken. It does not matter if the witness's status changed after the deposition. The fact that the witness was not of the requisite status (officer, director, etc.) at the time of the events about which the witness testifies at the deposition is irrelevant.

Do not fall into the trap of assuming that you can use the deposition of an officer, director, or managing agent under CR 32 simply because the testimony is defined as nonhearsay under ER 801(d)(2) (statement by party-opponent). CR 32(a)(2) is limited to witnesses who fall within the specifically enumerated categories. In contrast, the "speaking agent" portion of ER 801(d)(2) does not consider the specific title or status of the witness, but rather looks to the function and...