Leveraging Depositions and Testimony From Prior Litigation as Evidence at Trial: FRCP 32 and FRE 804

Federal Rule 32 allows the introduction of a witness' deposition testimony in current litigation under specific conditions. Most of the time, the deposition was taken in the same action where it will be used at trial, but not always.

Federal Rule 32(a)(8) permits the use of depositions taken in prior cases to be used in court proceedings on the same subject matter and between the same parties or their representatives and assigns. Federal Rule of Evidence 804(b)(1) and state-law counterparts permit prior depositions to be introduced against parties in a subsequent case so long as the party or its predecessor in interest in the prior case had an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination.

The proper application and interpretation of Rule 32(a)(8) and related rules of evidence may arise in mass tort cases when plaintiffs wish to prove their case in chief with testimony of company representatives or experts taken in a prior suit to which the current plaintiff was not a party. The issue may also arise when liability is established against defendants in one case, but the successful plaintiff needs to file a separate suit to recover from vicariously liable third parties, such as recipients of fraudulent conveyances who reside in other jurisdictions.

Listen as our experienced panel reviews, from both the plaintiff's and defendant's perspective, the traditional uses in court of deposition testimony and then shows practitioners novel ways to leverage prior depositions.