§32.7 Significant Authorities

• Jurisdiction: Washington

§32.7SIGNIFICANT AUTHORITIES

Significant authorities arranged by topic are set out below.

(1)Party must be represented or present at deposition

A party against whom a deposition is offered must have been "represented" or "present" at the deposition. Case v. Olwell,1 Wn.App. 766, 463P.2d664 (1970) (decided under predecessor to CR 32).

(2)Impeachment of deposition testimony

Impeachment of testimony presented through deposition is not permissible unless the deponent was presented with the statements at the time of the deposition. Makoviney v. Svinth,21 Wn.App. 16, 584P.2d948 (1978), review denied, 91 Wn.2d 1010 (1979).

(3)Use of deposition of adverse party who is present at trial

Under the predecessor to CR 32, the admissibility of an adverse party's deposition was discretionary if the party was available to testify in person. Kellogg v. Wilcox,46 Wn.2d 558, 283P.2d677 (1955). But see 3AKarl B. Tegland, Washington Practice: Rules Practice, CR 32, at 752-53 (6th ed. 2013) (under CR 32, trial court should be extremely hesitant to exercise discretion in this fashion).

(4)Preference for live testimony

Even if an "unavailability" foundation is established, the court can refuse to admit deposition testimony if the witness is present in the courtroom, because of the overwhelming preference for live testimony. Vannoy v. Pac. Power & Light Co.,59 Wn.2d 623, 369 P.2d 848 (1962).

(5)Timing of determination of "unavailability"

Unavailability is measured at the time the deposition is offered into evidence. Hammond v. Braden,16 Wn.App. 773, 775, 559 P.2d 1357 (1977). There is some suggestion that if a witness testifies at trial, his or her deposition testimony cannot later be offered even if the witness is, by then, technically...