Section 9.17 3. Use Of Deposition Of Unavailable Witness

• Jurisdiction: New York

3. Use of Deposition of Unavailable Witness

A party may use the deposition of a party or nonparty witness for any purpose if (1) the witness is dead, more than 100 miles away or is abroad (unless the absence was procured)¹²⁸⁷ or cannot testify because of age, sickness, infirmity or imprisonment; (2) the party offering the deposition was unable to procure attendance of the witness by subpoena; or (3) on application and notice, exceptional circumstances justify it, in the interest of justice and with due regard to the importance of live testimony.¹²⁸⁸ The party who offers the deposition need not be the one who took it.

Because FRCP 32(a)(4) does not support use of a deposition at trial unless the witness is unavailable,¹²⁸⁹ a party who claims that a witness is sick, aged or otherwise unable to attend the trial must show that such disability in fact exists and precludes attendance.¹²⁹⁰ If a party produces evidence that tends to establish that a witness is unable to attend and testify in person, the burden shifts to the party opposing use of the deposition to demonstrate that the witness is actually available. Absent such proof, the unavailability of the witness may be taken as established. Ultimately, however, the party that wants to use the deposition testimony carries the burden of proof.¹²⁹¹ Notwithstanding the required showing of the witness’s unavailability, the party that wants to use the deposition testimony is not obliged to demonstrate his or her efforts to persuade the witness (e.g., one who is elderly or located more than 100 miles away) to attend and testify.¹²⁹²

If a witness is located more than 100 miles from the place of the hearing or trial, his or her deposition may be used even though the witness is subject to the court’s subpoena power under FRCP 45. The 100-mile limit defines physical unavailability of a witness in the United States due to distance and controls over FRCP 45.¹²⁹³

A witness may be unavailable under FRCP 32(a)(4)(D) if the proponent is unable to serve the witness with a subpoena, or if it serves the subpoena but the witness flees or refuses to appear. The language of the rule—that a witness’s deposition testimony can be used when the proponent “could not procure the witness’s attendance”—contemplates that the proponent exercise reasonable diligence to obtain the witness’s attendance.¹²⁹⁴

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Notes:

^[1287] . Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684 (1st Cir. 1994); Fairchild 274–278 Clarendon Trust v. Dwek, 970 F.2d 990...