C.r.c.p. 32
A deposition taken without leave of court pursuant to C.R.C.P. 30(a)(2)(C) shall not be used against a party who demonstrates that, when served with the notice, the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition.
Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
C.r.c.p. 32
Committee Comment
Revised C.R.C.P. 32 is patterned after Fed. R. Civ. P. 32 as amended in 1993 with several exceptions: (1) there is no State Rule 32(l)(D) pertaining to use of depositions of experts whether or not unavailable; (2) there is a difference in what constitutes "reasonable notice," which is instead contained in C.R.C.P. 121 section 1-12; and (3) there is no State Rule 32(e) pertaining to offering of non-stenographic depositions.
Annotation I. General Consideration. Law reviews. For article, "Depositions and Discovery, Rules 26 to 37 ", see 28 Dicta 375 (1951). For article, "Depositions and Discovery: Rules 26-37 ", see 23 Rocky Mt. L. Rev. 562 (1951). For article, "Plaintiff's Advantageous Use of Discovery, Pre-Trial and Summary Judgment", see 40 Den. L. Ctr. J. 192 (1963). For article, "A Deposition Primer, Part I: Setting Up the Deposition", see 11 Colo. Law. 938 (1982). For article, "A Deposition Primer, Part II: At the Deposition", see 11 Colo. Law. 1215 (1982). For article, "Using Depositions in the Courtroom", see 39 Colo. Law. 49 (April 2010). C.R.C.P. 26 to 37 must be construed together along with the requirement that plaintiff establish a prima facie case for punitive damages, as a condition precedent to the plaintiff's right to discovery of defendant's financial information. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). Applied in Hamilton v. Hardy, 37 Colo. App. 375, 549 P.2d 1099 (1976); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981). II. Use Annotator's note. Since section (a) of this rule is similar to §§ 378 and 379 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, and to C.R.C.P. 26(d) as it existed prior to the revision of Rules of Civil Procedure in 1970, relevant cases construing those sections and former rule 26(d) have also been included in the annotations to this rule. Section (a) is identical to F.R.C.P. 32(a). Schafer v. Nat'l Tea Co., 32 Colo. App. 372, 511 P.2d 949 (1973). This rule is an independent and alternative vehicle to C.R.E. 804(b)(1) for admitting deposition testimony into evidence in civil cases. Margenau v. Bowlin, 12 P.3d 1214 (Colo. App. 2000). To be introduced into evidence under this rule, the deposition testimony must be of a nature that would itself be admissible if the deponent were present and testifying in court. In addition, the opposing party must have had reasonable notice of the deposition and either been present or represented at the taking of the deposition, and one of the five circumstances set forth in section (a) must be present. Margenau v. Bowlin, 12 P.3d 1214 (Colo. App. 2000). Unless there are no viable alternatives, "appearance" by deposition is a wholly inadequate manner for the presentation of a party's case. Gonzales v. Harris, 189 Colo. 518, 542 P.2d 842 (1975). Should a party attempt to offer a portion of a deposition into evidence rather than call the adverse party as a witness, that party may do so, provided no other rules of evidence are violated and provided, prior to its admission, some showing of a legitimate purpose is made. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971); Scruggs v. Otteman, 640 P.2d 259 (Colo. App. 1981). The burden of proof of unavailability is on the party offering the deposition, and the failure to carry the burden precludes the use of the deposition as evidence. Evans v. Century Cas. Co., 159 Colo. 596, 413 P.2d 457 (1966); J.R. Watkins Co. v. Smith, 29 Colo. App. 340, 483 P.2d 988 (1971). The burden of proof as to the unavailability of the witness is on the party offering the deposition in lieu of the testimony. Rowland v. Ditlow, 653 P.2d 61 (Colo. App. 1982). In order that a deposition may be admitted into evidence, the party offering the deposition must make a sufficient showing of the unavailability of the deponent at the time of trial. Evans v. Century Cas. Co., 159 Colo. 596, 413 P.2d 457 (1966); J.R. Watkins Co. v. Smith, 29 Colo. App. 340, 483 P.2d 988 (1971). Admission of video depositions of available witnesses violated this rule but was harmless error where plaintiff failed to explain or make an offer of proof as to how live courtroom testimony of the deposed witnesses would have differed from their video depositions. Maloney v. Brassfield, 251 P.3d 1097 (Colo. App. 2010). Question of sufficient evidence to establish absence is for court. The amount and kind of evidence to establish absence of the witness from the jurisdiction or beyond the 100-mile limit is a question for the determination of the trial court. Campbell v. Graham, 144 Colo. 532, 357 P.2d 366 (1960). Deposition testimony held sufficient to establish whereabouts of deponent. Court erred in refusing to consider deposition testimony and disallowing deposition on grounds that competent evidence under rules of evidence had to prove whereabouts of deponent. Donley v. State, 817 P.2d 629 (Colo. App. 1991). It cannot be said that a showing of unavailability by means of attempted subpoena is indispensable in connection with the 100-mile provision, since it is for the court to decide whether this rule has been complied with. Campbell v. Graham, 144 Colo. 532, 357 P.2d 366 (1960). This rule also allows a deposition to be offered if the party has been unable to procure attendance by subpoena, but this use, however, is an alternative to the 100-mile provision. Campbell v. Graham, 144 Colo. 532, 357 P.2d 366 (1960). Deposition cannot be introduced as an admission. Colorado practice, unlike that under the federal rules, does not permit the introduction of a deposition as an admission. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961). Timely notice in a trial data certificate of the intent to call a witness by way of video deposition constitutes appropriate "application and notice" under this rule. Miller v. Solaglas California, Inc., 870 P.2d 559 (Colo. App. 1993). A party is entitled to refer to a deposition which would serve to bring to the attention of a witness any prior statement which the witness had made looking to ultimate impeachment, notwithstanding the fact that section (d)(4) of this rule as to certifying and filing depositions has not been complied with. The question of the inadmissibility of the deposition is not a valid issue until such time as the party proposes to impeach the witness by introducing the deposition. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961). When a deposition is not offered as substantive evidence, but rather is used to impeach by prior inconsistent statements, this rule does not operate to preclude the deposition from being so used. Schafer v. Nat'l Tea Co., 32 Colo. App. 372, 511 P.2d 949 (1973). Defendants cannot use deposition in argument for directed verdict or in their defense. Where defendants had taken the deposition of the plaintiff and were permitted to use it in an attempt to impeach him, the court properly refused defendants' request to use the deposition in connection with their argument for a directed verdict and as a part of their defense. Foster v. Howell, 122 Colo. 64, 220 P.2d 717 (1950). Governmental officials of foreign states cannot be compelled to appear in Colorado to take depositions. Despite the fact that section (a)(2) of this rule states, in relevant part, that: "The depositions of ... an officer, director, or managing agent of a ... (governmental agency which is a party) ... may be used by an adverse party ...", it has been held that the attorney general and tax commissioner of another state could not be compelled to appear in Colorado for the purpose of taking depositions, and that this fact was true even though the foreign state had brought the action in which defendant sought their depositions, inasmuch as no state court or government has authority beyond its own borders, each state being sovereign as to its own territory and those residing therein; rather, such recognition as is given Colorado laws or court orders by other states must be based solely upon full faith and credit, comity, contract due to uniform acts, or compact. Minnesota ex rel. Minnesota Att'y Gen. v. District Court, 155 Colo. 521, 395 P.2d 601 (1964). Deposition may not be used by adverse party for "any purpose". Blind reliance on the portion of this rule in section (a)(2) that the deposition of a party "may be used by an adverse party for any purpose" does not establish error when the court refuses to admit portions of a deposition, for the permissive rule of this statute does not override the other rules of evidence and the discretion of the trial court. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971). Deponent must be an adverse party to the proponent at the time the deposition is offered into evidence in order for the deposition to be admissible. Rojhani v. Meagher, 22 P.3d 554 (Colo. App. 2000). This rule permits the admission of a deposition where the witness is dead or more than 100 miles from the place of trial or hearing. Campbell v. Graham, 144 Colo. 532, 357 P.2d 366 (1960). Court's refusal to order additional parts of depositions introduced held not error. Where the trial court informed defendants that they might offer any and all additional parts of the depositions into evidence as part of their case and there was no showing on the part of the defendants that the plaintiff did not offer all relevant portions of the depositions into evidence, then the trial court's refusal to order the plaintiff to introduce additional parts of the depositions was not error under section (a)(4) of this rule. Linker v. Linker, 28 Colo. App. 136, 470 P.2d 882 (1970). Depositions held admissible to prove plaintiff's claim where plaintiff not personally present. Where at the trial plaintiff did not appear in person, being then a resident of another state, and defendant's counsel moved that the action be dismissed for the reason that defendant would have no opportunity to cross-examine the witness who was the real party in interest and the jury would have no basis upon which to weigh the testimony or to judge the credibility of the witness, it was held that whether plaintiff could produce sufficient evidence to avert a motion for dismissal at the conclusion of her case was beside the question, but clearly she was entitled to introduce whatever evidence was available in support of her claim, and thus the depositions and interrogatories taken in the case were admissible as evidence in support of plaintiff's cause of action, and it was error to dismiss plaintiff's suit because plaintiff was not personally present to assert it. Hiltibrand v. Brown, 124 Colo. 52, 234 P.2d 618 (1951). Depositions taken in original action held admissible in separate action. Where plaintiff had originally filed one action against defendants seeking to set aside an antenuptial agreement and to have a transfer of notes declared invalid and the cause of action on the notes was subsequently transferred to probate proceedings, the depositions of defendants taken in plaintiff's original action were admissible in the separate action on the validity of the notes, since these depositions were taken in plaintiff's original action and involved the same parties and same subject matter. Linker v. Linker, 28 Colo. App. 136, 470 P.2d 882 (1970). The supreme court of Colorado is not bound by the findings of the jury as to any matters contained in depositions but is at liberty to place its own interpretation upon the testimony therein given. Morrison v. McCluer, 27 Colo. App. 264, 148 P. 380 (1915); Rinderie v. Morse, 27 Colo. App. 457, 150 P. 245 (1915), aff'd, 64 Colo. 32, 169 P. 648 (1917). This fact does not abrogate rule of not disturbing trial court findings upon conflicting evidence. Where the evidence given upon issues of the fact is partly by depositions and partly by that submitted in open court, this fact does not abrogate, but only pro tanto affects, the rule that the findings of the trial court upon conflicting evidence should not be disturbed. Morrison v. McCluer, 27 Colo. App. 264, 148 P. 380 (1915). It is in court's discretion to exclude repetitious matters or require identification of relevant portions. In determining whether a deposition may be used in evidence, the trial court has discretion to exclude repetitious matter and to require counsel to identify the relevant portions of a deposition. Scruggs v. Otteman, 640 P.2d 259 (Colo. App. 1981). Deposition used for impeachment purposes is always admissible to discredit witness if the deposition is relevant, material, and not collateral, even if opposing party was not present or represented at deposition and did not have notice of its taking. Appel v. Sentry Life Ins. Co., 739 P.2d 1380 (Colo. 1987). Trial court may refuse to admit deposition to promote fairness where conditions of admissibility were met but plaintiff had been led to believe witness would give live testimony. Stocynski v. Livermore, 782 P.2d 834 (Colo. App. 1989). III. Objections. Annotator's note. Prior to revision of the Rules of Civil Procedure which took effect in 1970, section (b) of this rule was C.R.C.P. 26(e) and cases decided under that rule have been included in the annotations to this rule. Admissibility of deposition is not an issue until deposition is introduced. The question of the inadmissibility of a deposition used for impeachment purposes is not a valid issue until such time as a party proposes to impeach a witness by introducing the deposition. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961). The court cannot determine admissibility or relevancy if not given specific purpose or purposes for reading portions of a deposition when faced with an objection from the opposing party. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971). Objections to leading questions cannot be made at trial. The objection that a question propounded to a witness examined upon commission was leading cannot be made at the trial. Greenlaw Lumber & Timber Co. v. Chambers, 46 Colo. 587, 105 P. 1091 (1909) (decided under § 388 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941). Admission of deposition where party is present at trial can be harmless error. Where the admission of a deposition of a party is objected to on the ground that the party is in court and available to testify, such admission is harmless error when the evidence contained therein is merely cumulative to the evidence already before the court and its admission neither adds to nor detracts from evidence previously admitted. Sentinel Petroleum Corp. v. Bernat, 29 Colo. App. 109, 478 P.2d 688 (1970). Entry of the deposition of a defendant into evidence does not deny him the full benefit of having his credibility judged by the jury, or impair his right of rehabilitation, for upon presentation of his defense, defendant may protect both these rights by taking the stand in his own behalf. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971). This rule allows method of preserving objection. Should a deposition eventually be used at trial, the rules allow a party to preserve his objection to the wording of a question for trial by simply objecting to the question at the time the deposition is taken. Seymour v. District Court, 196 Colo. 102, 581 P.2d 302 (1978). For purposes of section (d)(1), court endorses interpretation of "promptly" that calls for notice within a reasonable time under all the facts and circumstances of the case. This interpretation, allowing for more flexibility, is more in keeping with the scheme of the state's discovery rules. The nonexclusive list of factors identified in Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999), may be considered to determine whether an objection to the inadequacy of a deposition notice is prompt. A party should not be denied the ability to defend himself or herself in court because of an inflexible application of a procedural rule. Keenan ex rel. Hickman v. Gregg, 192 P.3d 485 (Colo. App. 2008). IV. Effect of Taking or Using. Annotator's note. Prior to revision of the Rules of Civil Procedure which took effect in 1970, section (c) of this rule was C.R.C.P. 26(f) and, cases decided under that rule have been included in the annotations to this rule. Under this rule, the taking of a deposition was held not to be a waiver of objection to the competency of a witness where the deposition of the party was avowedly taken for the purpose of discovery under C.R.C.P. 26(a), and neither the deposition nor any part of it was offered in evidence. Gottesleben v. Luckenbach, 123 Colo. 429, 231 P.2d 958 (1951). As to the rebuttal of evidence this rule is made applicable to interrogatories by the language of C.R.C.P. 33(b), by which it is provided: "Interrogatories may relate to any matters which can be inquired into under C.R.C.P. 26(b), and the answers may be used to the extent (permitted by the rules of evidence)". Ridley v. Young, 127 Colo. 46, 253 P.2d 433 (1953). V. Errors and Irregularities. A. Taking. Objections to leading questions cannot be made at trial. The objection that a question propounded to a witness examined upon commission was leading cannot be made at the trial. Greenlaw Lumber & Timber Co. v. Chambers, 46 Colo. 587, 105 P. 1091 (1909) (decided under § 388 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941). B. Completion and Return. This rule is intended to render technical objections unavailable at the trial. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961). This rule provides that irregularities in the preparation, etc., of a deposition are waived unless a motion to suppress the deposition is made with reasonable promptness after such defect is discovered or with due diligence might have been ascertained. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961). A deposition is not inadmissible on the basis that it is unsigned where an objection to such is not promptly made. Linker v. Linker, 28 Colo. App. 136, 470 P.2d 882 (1970). Objections must be substantial and must affect the value of the deposition as evidence in order to preclude its use at the trial. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961). It was error for the trial court to order a deposition suppressed upon the basis of the first appearance of irregularities in the deposition of not being properly certified and filed where counsel for defendants was merely seeking to establish an impeaching foundation by asking the plaintiff whether she had made particular statements on the occasion of the giving of the deposition, since under no circumstances would a motion to suppress be proper at this point. Rather, the question of the inadmissibility of the deposition would not be a valid issue until such time as defendant's counsel proposed to impeach plaintiff by introducing the deposition. Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961).
For substitution of parties, see C.R.C.P. 25; for deposition of party who is an officer, director, or managing agent of a public or private corporation, partnership, association, or governmental agency, see C.R.C.P. 30(b)(6) and 31(a); for notice requirement, see C.R.C.P. 30(b) and 31(a); for responsibilities of officer, see C.R.C.P. 30(f) and 31(b); for depositions upon oral examination, see C.R.C.P. 30; for depositions upon written questions, see C.R.C.P. 31.