A deposition is a type of interview that happens outside of court. One party asks another party questions about the case. The person answering questions is called the “deponent.”  It is just like when a witness speaks in court. Whatever a deponent says during a deposition:

• Is said under oath,
• Can be questioned through cross-examination, and
• Gets recorded in a written transcript by a court reporter.

Depositions can be used in court as evidence of a witness’s testimony. However, what is said during a deposition is not always admissible in court. Sometimes the rules of evidence prevent parts of the deposition from being heard in court.

It is very important to set up the deposition correctly. This makes sure you can use the information later in the way that you want.

Types of depositions

There are two types of depositions. The first is a deposition for discovery. The second type is a deposition for evidence. 

When you give notice for a deposition, you must say what type of deposition it will be. If you don’t say, it will be for discovery. The type of deposition affects the process. It also affects how you can use the information in court.

If you want to take both types of depositions from the same person, you must do so at different times. You can only take both types at the same time if all parties agree or you get a court order.

If you take an evidence deposition within 21 days of trial, you cannot take a discovery deposition unless the parties agree or the court orders it.

Deposition for discovery

This is a way for the party to find out more facts about the case. You cannot use testimony from a discovery deposition at trial, except for limited purposes. These limited purposes are:

• Impeachment of a witness,
• Admission of a party opponent,
• Exception to the hearsay rule, or
• Any purpose for which an affidavit may be used.

Advantages of a discovery deposition:

• Less rules about what questions you can ask, and
• Any party can question the deponent.

However, the length is limited to 3 hours.

Deposition for evidence

This is a way to get statements you can later use at a trial. The advantages of an evidence deposition are:

• You may be able to use the testimony at trial if the deponent is unavailable, and
• The length of the deposition is unlimited. 

During an evidence deposition, examination and cross-examination must follow trial rules. For example, you cannot ask leading questions during direct. Cross-examination cannot go beyond the scope of direct. If the questioning breaks these rules, an attorney can object, but the deponent must still answer the question. 

A party can ask to end the deposition or limit its scope if the examination is:

• Being done in bad faith,
• Unreasonably annoying,
• Unreasonably harmful, or
• Unreasonably oppressing the deponent.

Scope

The scope of the deposition can cover anything related to the lawsuit. This includes claims or defenses. Information that is protected by privilege against disclosure during a trial does not have to be disclosed during a deposition.

During an evidence deposition, you cannot ask leading questions on direct examination and cross-examination must be limited to the scope of direct. You may only ask leading questions during direct examination if the deponent is hostile or adverse. This means they don’t want you to win the lawsuit.

Notice

The party requesting a deposition must give reasonable notice. You must specify in the notice:

• The time and place of the deposition,
• The name and address of each person to be examined (if known),
• Information that can identify the person to be examined (if name and address are unknown), and
• Whether the deposition is for discovery or evidence. If you don’t specify, then the default type is discovery.

You must give notice if you are conducting the deposition electronically, such as by phone or video. You must indicate the specific electronic method you will use. You must also say if you are recording audio and/or video of the deposition. Finally, you must say if you are letting the deponent give documents or records instead of appearing in person. 

In the notice, you can name a business or entity as the deponent. You must describe the subjects the deposition will focus on. The business or entity can then choose a person to testify on its behalf.

If you are using a subpoena (see below), you must attach a copy of the subpoena to the notice. You cannot take depositions on weekends or court holidays, unless all parties agree or you get a court order.

Subpoenas

A subpoena is a type of court order that can require someone to appear for a deposition. You can also use subpoenas to request documents related to the case. You must serve a subpoena on the person or business that you want to depose. Subpoenas are not limited to the parties to a lawsuit. To subpoena a witness, get the form from the clerk’s office of your courtroom. Learn more about the differences between subpoenas and summons. 

You must file a subpoena for records at least 14 days before the deposition.

Methods

You can take a deposition by telephone, video, or other remote electronic means. You must state in the notice the specific electronic method you will use. If you intend to audio and/or video record the deposition, you must indicate this in the notice as well.

Location of the deposition

Depositions must be taken in the county where:

• The deponent resides,
• The deponent is employed, or
• The lawsuit is pending, if the deponent is the plaintiff in the case.

Depositions can only happen in a different place if the court orders it or the parties agree.

Depositions can be taken by telephone, video, or other remote electronic methods. You must state in the notice the specific method that will be used. The deposition location is wherever the deponent answers the questions.

Forcing someone to participate

If a non-party refuses to appear for a deposition, you can request help from the court. You may submit a motion to the court for a rule to show cause or an order of contempt. You must serve the non-party with the rule or order and provide the court with proof of personal service.

What to ask

Some of the main reasons for a deposition are to:

• Gather information to prepare your case,
• Assess your opponent’s theories, and
• Lock the witness into a position. If their statements change at trial, you can use their deposition against them.

Costs of a deposition

The party leading the deposition must pay the fees of the witness and officer and the charges of the recorder or stenographer for attending. If a party requests a transcription, that party must pay for it.

Exceptions:

• If a party provides their own expert witness, that party pays the fees for the witness; or
• If a party exceeds the scope of the examination, that party pays the costs related to the excess.