Episode Details

Trial is approaching, and you learn a witness you planned to call live now isn’t available. You'll need to read or play their deposition testimony instead. That means that you must prove the witness' "unavailability" under the rules. How do you do it? Which rules do you need to analyze? How far in advance of trial do you have to do it? Can you just tell the judge that, last you heard, Peter, Paul, and Mary were leaving on a jet plane, and you don’t know when they’ll be back again, so you’re probably going to read their depositions? Check out this outstanding episode, which discusses Fed. R. Civ. P. 32, Fed. R. Evid. 804, and others you'll need to know, including Fed. R. Civ. P. 43, 45, and Fed. R. Evid. 402, 403 and 602. The good news is, all the analysis has been done for you here. Sit back and listen! And check out the nearly two dozen authorities on which this episode is based, all cited in the show notes below. You're welcome! ( If you don't see our complete show notes - which end with the words END SHOW NOTES - click wherever you see "Go to episode or podcast homepage. That will contain the complete list. Some sites have line or character limits, but our homepage does not.)

P.S.: This episode, as most, took nearly two weeks to produce. And it's free. Can you show our research and production team some love back, by going to wherever you get your podcast and leaving our team as a five-star review? Our technical team says those reviews make a huge difference as to how a podcast is displayed by Apple, Spotify and others. It takes 60 seconds or less. We would so appreciate it. Thank you again.

SHOW NOTES

Castillo-Frias v. Martinez, 2021 WL 2661093 (E. D. New York Jun. 28, 2021) (court allowed witness “who is due to give birth three days before trial” to testimony remotely by video, but denied request to allow use of deposition in lieu of live testimony, in absence of showing of unavailability in fact at the time of trial)

Hopman v. Union Pacific Railroad, 2021 WL 2856607 (E. D. Arkansas July 8, 2021) (six days before start of jury trial, defendant moves for order allowing use of deposition in lieu of live testimony by witness, based on counsel’s unsworn representation in motion that witness lived and worked 400 miles from situs of trial, and would not be within 100 miles of trial location at the time of trial; motion granted, with leave to plaintiff to designate portions of witnesses deposition that plaintiff wants to play)

Fishman v. Liberty Associates, Inc., 196 So.2d 493 (3d DCA 1967) (trial court’s decision to allow deposition in lieu of live testimony based on unsworn representation of counsel affirmed on appeal; held, no error where representations, if made under oath by witness, would have been sufficient to establish unavailability)

Allgeier v. United States, 909 F.2d 869, 876 (6^th Cir. 1990) (stating that catchall “exceptional circumstances” clause in rule defining unavailability requires a circumstance as exceptional as the other grounds of unavailability, namely, death, extreme distance, severe infirmity, imprisonment, illness, or age).

United States v. Berkeley Heartlab, Inc., 2017 WL 6015157 (D. South Carolina December 1, 2017) (order denying request to publish deposition testimony of 17 witnesses in lieu of live testimony; held, nationwide subpoena power under the False Claims Act renders all such witnesses within the subpoena power of the court, such that none are “unavailable” and, further, saying “Nor is being a parent an exceptional circumstance.”)

Lefebre v. Remington Arms Company, LLC, 2019 WL 5103492 (W.D. Mich. July 3, 2019) (allowing plaintiff to present expert’s testimony in prior actions where, based on affidavit from expert, said expert was 86 years old, disabled, retired and more than 1,400 miles from site of trial)

Holen v. Jozic, 2018 WL 45186