Section 4.35 Generally

• Library: Discovery 2015

Rule 57.07(a), regarding the use of depositions in court proceedings, states that:

Any part of a deposition that is admissible under the rules of evidence applied as though the deponent were testifying in court may be used against any party who was present or represented at the taking of the deposition or who had proper notice thereof. Depositions may be used in court for any purpose.

Therefore, counsel wishing to use a deposition in court does not have to prove the deponent’s unavailability to testify.

The burden of establishing admissibility is on the proponent of the deposition testimony. Henson v. Bd. of Educ. of Washington Sch. Dist., 948 S.W.2d 202 (Mo. App. E.D. 1997). A court’s wrongful refusal to allow a deposition to be read into the record at trial may not amount to reversible error if the decision was not prejudicial. SeeSoper v. Bopp, 990 S.W.2d 147 (Mo. App. S.D. 1999).

The following are some uses of depositions:

· A party may take that party’s own deposition for use at trial in the party’s absence. State ex rel. Chandler v. Scott, 427 S.W.2d 759 (Mo. App. E.D. 1968). But a party’s own deposition taken upon written questions may not be introduced by the party unless proper and sufficient notice was given to the opposing party. Mincey v. Blando, 655 S.W.2d 609 (Mo. App. W.D. 1983).

An absent party’s unsigned deposition may be offered on that party’s behalf on the theory that the offer of the deposition vouches for its accuracy as well as if by signature. Will Docter Meat Co. v. Hotel Kingsway, 232 S.W.2d 821 (Mo. App. E.D. 1950). This is also true of a deposition offered by the representative of a deceased party who died without signing the deposition. Coffel v. Spradley, 495 S.W.2d 735 (Mo. App. W.D. 1973).

· A deposition may be used to impeach a witness with prior inconsistent statements. Engelbert v. Flanders, 670 S.W.2d 19 (Mo. App. W.D. 1984). If a witness’s deposition is introduced at trial in the witness’s absence, some courts have held that the witness must be given an opportunity during the deposition to explain inconsistent statements, seePowell v. Norman Lines, Inc., 674 S.W.2d 191 (Mo. App. E.D. 1984), while others indicate that the deposition testimony may be impeached by subsequent testimony when advance notice is given that it will be used in that fashion, see Frey v. Barnes Hosp., 706 S.W.2d 51 (Mo. App. E.D. 1986).

In some circumstances, the deposition of a witness may be used to exclude contrary evidence by...