RULE 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS

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Rule 32.04: Effect of Errors and Irregularities in Depositions.

(1) As to Notice.  All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(3) As to Taking of Deposition. (A). Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(B). Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

(C). Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized.

(4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. [As amended July 1, 1979.]

Advisory Commission Comments.

This Rule is designed to bring together rules relating to the timing and method of presentation of objections based on errors and irregularities in depositions.

32.01: The added language [in 1984] in Rule 32.01(3)(D), dispensing with the necessity of a trial subpoena for deponents exempt under revised Tenn. Code Ann. § 24-9-101, changes the requirement under prior law, explained in Stokes v. Leung, 651 S.W.2d 704, 710 (Tenn. Ct. App. 1982). [1984.]

The new sentence [in 1984] inserted at the end of 32.01(3) protects the trial lawyer who takes an opposing expert's discovery deposition by court order or by agreement from being confronted with the deposition as substantive proof at trial. Tactically the discovering lawyer wants to find out everything the expert intends to say at trial and conducts a very open inquiry, expecting many unfavorable answers; there is no cross-examination in the trial sense. It would be unfair to plaintiffs and defendants alike to have such a deposition admitted as former testimony on the ground that the deponent is unavailable, whether dead, outside the jurisdiction, or more than one hundred miles from the courtroom. If the party who hired the expert wants to take a deposition for proof, of course, that can be accomplished by notice or agreement. The present amendment applies only to a discovery deposition of the adversary's expert. [1984.]

The Commission recommends [in 1987] adding language to the last paragraph of Rule 32.01 to make the former testimony hearsay exception work the same way with depositions in civil actions as it does with preliminary hearing transcripts in a criminal prosecution with the advent of State v. Causby, 706 S.W.2d 628 (Tenn. 1986). Causby, at page 631, adopts F.R.Evid. 804(b)(1) insofar as it admits former testimony against a person who at the prior hearing "’had an opportunity and similar motive to develop the testimony ....’" The previous deposition rule appears to limit substantive use of depositions – the most common type of former testimony – to subsequent lawsuits involving the "same parties," thereby imposing a strict identity of parties requirement rejected by the Supreme Court in Causby. [1987.]

The added sentence [in 1990] at the end of Rule 32.01 is needed to conform the Rules of Civil Procedure to the Rules of Evidence. Under Rule 804(b)(1), Tennessee Rules of Evidence, depositions may be admissible as former testimony even though taken in an action other than one dismissed before the present suit was filed. [1990.]

Advisory Commission Comments [2001].

Rule 32.01(3) describes when a deposition can be used "for proof" under the former testimony hearsay exception. Except with respect to some experts, a deposition is admissible as substantive evidence at trial if the deponent is unavailable to give live testimony.

Advisory Commission Comments [2004].

Rule 32.01(4) is conformed to the rule of completeness in Evidence Rule 106.

Advisory Commission Comment [2006].

The new language in Rule 32.01(3) incorporates by cross-reference all of the unavailability grounds listed in Evidence Rule 804(a). That list includes deponents who are more than 100 miles from the courthouse on trial day. The more restrictive provision for discovery depositions of experts is retained.

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