N.M. R. Civ. P. Dist. Ct. 1-032

As amended through August 23, 2024

Rule 1-032 - Use of depositions in court proceedings

A.Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(1) any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness or for any other purpose permitted by the Rules of Evidence;

(2) the deposition of a party or of anyone who at the time of taking the deposition was an officer, director or managing agent, or a person designated under Subparagraph (6) of Paragraph B of Rule 1-030 NMRA or Subparagraph A of Rule 1-031 NMRA to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose;

(3) the deposition of a witness, whether or not a party, may be used by any party for any purpose upon stipulation of the parties or if the court finds:

(a) that the witness is dead;

(b) that the witness is at a greater distance than one hundred (100) miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition;

(c) that the witness is one hundred miles or less from the place of trial or hearing, if an order was entered prior to the deposition permitting the use of the deposition at trial and the notice of deposition sets forth that the proponent intended to use the deposition at trial;

(d) that the witness is unable to attend or testify because of age, illness, infirmity or imprisonment;

(e) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(f) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used;

(4) if only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

Substitution of parties pursuant to Rule 1-025 NMRA does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any state 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. A deposition previously taken may also be used as permitted by the New Mexico Rules of Evidence.

B.Objections to admissibility. Subject to the provisions of Paragraph B of Rule 1-028 NMRA and Subparagraph (3) of Paragraph D of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

C.Form of presentation. Except as otherwise directed by the court, a party offering deposition testimony pursuant to this rule may offer it in stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the court with a transcript of the portions so offered. On request of any party in a case tried before a jury, deposition testimony offered other than for impeachment purposes shall be presented in nonstenographic form, if available, unless the court for good cause orders otherwise.

D.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 and filed in the action.

(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. Such objections should be served on the party giving notice and filed in the action.

(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 1-031 NMRA 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 five (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, endorsed, transmitted, filed or otherwise dealt with by the officer under Rules 1-030 NMRA and 1-031 NMRA 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.

N.M. R. Civ. P. Dist. Ct. 1-032

As amended, effective 10/15/1986;2/16/2004;1/20/2005.

ANNOTATIONS The 2004 amendment, effective January 20, 2005, substituted "Paragraph D" for "Paragraph C" in Paragraph B. The 2003 amendment, effective February 16, 2004, added "or for any other purpose permitted by the Rules of Evidence" in Subparagraph (1) and substituted "the offeror" for "him" in the first sentence of Subparagraph (4) of Paragraph A, inserted Paragraph C, redesignated former Paragraph C as Paragraph D, and added the introductory language in Subparagraphs (1) through (4) of that paragraph.

For the definition of "stenographic recording" or "stenographically recorded" see Rule 1-030.1 NMRA For provisions on depositions for use in foreign states, see 38-8-1 to 38-8-3 NMSA 1978 Compiler's notes. - This rule, together with Rules 1-028, 1-030, 1-031 and 1-045 NMRA, is deemed to have superseded 45-101 to 45-119, C.S. 1929 (36-5-21 to 36-5-39, 1953 Comp., now repealed), insofar as those provisions related to the taking of depositions for use in the district court. Hearsay and immaterial evidence not rendered admissible by presence in deposition. - Where a deposition and the portions thereof which were offered on rebuttal tenders include matters which are largely hearsay and matters which could not possibly relate to the question at issue, deposition was properly refused. Glass v. Stratoflex, Inc., 1966-NMSC-153, 76 N.M. 595, 417 P.2d 201. Court may refuse unnecessarily repetitious deposition. - Unnecessary repetition is a valid ground for refusing to admit a deposition as part of party's case. Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521. Rule does not override laws of evidence and court's discretion. - Rule 26(d)(2) (see now Paragraph A(2) of this rule) provides that a deposition of an adverse party may be used "for any purpose," but blind reliance on that portion of this rule does not establish error when the court refuses to admit portions of a deposition; that permissive rule does not override the other rules of evidence and the discretion of the trial court. Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521. Depositions not intended to substitute for witness at trial. - Depositions may only be used when the witness is unavailable or where exceptional circumstances necessitate their use; Rule 26(d)(3) (see now Paragraph A(3) of this rule) contemplates such use and was not intended to permit depositions to substitute at the trial for the witness himself. Niederstadt v. Ancho Rico Consol. Mines, 1975-NMCA-059, 88 N.M. 48, 536 P.2d 1104, cert. denied, 88 N.M. 29, 536 P.2d 1085. Implicit in Subdivision (A)(3) (see now Paragraph A(3)) is condition that witness be unavailable to testify in person; so the use of a deposition must be denied where there is no showing of unavailability. Arenivas v. Continental Oil Co., 1983-NMCA-104, 102 N.M. 106, 692 P.2d 31. Showing of unavailability of witness. - A showing that the witness resided beyond 100 miles at some recent earlier time is sufficient to admit the deposition under Subdivision (a)(3) (see now Paragraph A(3)). Dial v. Dial, 1985-NMCA-059, 103 N.M. 133, 703 P.2d 910. Party seeking admission of deposition testimony in lieu of in court testimony has the burden of showing the witness is unavailable. Based on plaintiff's affidavit stating she was unable to locate witness despite good faith attempts to do so and the fact witness was defendants' daughter, the district court concluded the requisite good-faith effort to locate the witness had been made and the deposition may be admitted. Reichert v. Atler, 1992-NMCA-134, 117 N.M. 628, 875 P.2d 384, aff'd, 117 N.M. 623, 1994-NMSC-056, 875 P.2d 379. District court's error in not allowing deposition evidence was harmless where the material matters covered in the deposition could have been covered at trial. - Where plaintiff, a grower and harvester of chile peppers, and defendant, a dehydration chile plant that purchases, processes, and dehydrates different varieties of chile, entered into a contract where plaintiff would deliver raw chile peppers to defendant, which would then wash, dehydrate, weigh and pay for the chile, and where plaintiff filed a lawsuit against defendant when there was a dispute as to how much chile was delivered and how much was paid for, the district court erred in denying plaintiff's request to use deposition testimony of defendant's corporate designee, because this rule allows an adverse party to use the deposition of a corporate party's designee for any purpose and "as though the witness were then present and testifying," but the error was harmless, because the exclusion of deposition evidence is harmless if the material matters covered in the deposition are covered, or could have been covered, at trial, and plaintiff was given the opportunity, but failed to call the corporate designee to the stand in his case in chief. Valerio v. San Mateo Enterprises, Inc., 2017-NMCA-059. Deposition of party taken by adverse party may not be used in evidence by deponent, in the absence of any of the special circumstances listed in Rule 26(d)(3) (see now Paragraph A(3) of this rule). Albuquerque Nat'l Bank v. Clifford Indus., Inc., 1977-NMSC-098, 91 N.M. 178, 571 P.2d 1181. When Rule 26 (now this rule) is considered as a whole, it is clear that it was not intended to nor does it permit a deposed party to use his own deposition, under normal circumstances, in his own case-in-chief. Albuquerque Nat'l Bank v. Clifford Indus., Inc., 1977-NMSC-098, 91 N.M. 178, 571 P.2d 1181. Generally as to use of deposition taken in former action. - A debt barred by the statute of limitations is revived by an admission that it is unpaid, made in writing and signed by the party to be charged, even though the admission is made in a deposition taken for use in a particular case other than the case between the same parties on the same subject, in which the admission is used as evidence of the revival of the debt. Joyce-Pruit Co. v. Meadows, 1925-NMSC-052, 31 N.M. 336, 244 P. 889 (decided under former law). Depositions taken out of territory. - Under Laws 1865, ch. 32, §1, depositions could be taken out of the territory to be used in probate courts. Gildersleeve v. Atkinson, 1891-NMSC-035, 6 N.M. 250, 27 P. 477 (decided under Special Act). Proper to stipulate regarding use of deposition. - No objection having been made to any question, the trial court did not err in admitting a deposition under stipulation that it could be read in evidence by either party "subject to such objections and exceptions as may be made to such questions and answers, as if the witness * * * were present in person and testified in said cause." Cheek v. Radio Station KGFL, 1943-NMSC-009, 47 N.M. 79, 135 P.2d 510. Unsigned deposition. - A deposition is not admissible in evidence where the witness has not signed same and party objecting to the deposition has not waived objection to such omission, or where provisions for use of unsigned deposition have not been met. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Burden on party taking deposition to comply with rules. - Rule 30(E) (see now Rule 1-030 NMRA) and Paragraph (C)(4) (see now Paragraph C(4)) of this rule were designed to put the burden on the party who takes the deposition to comply with the rules to avoid problems. If the party who has the burden fails to comply with the rules, the duty shifts to the opposing party to comply with the rules in order to protect his rights. Lawyers should not use these rules lackadaisically, especially so when use of a deposition at trial is an essential ingredient. Garcia v. Co-Con, Inc., 1981-NMCA-065, 96 N.M. 308, 629 P.2d 1237. Absence of signature waived where known, but no motion to suppress. - Where the plaintiff not only had ample time to ascertain the absence of a deponent's signature but also had actual knowledge within time to file a motion to suppress the deposition, but failed to do so, he waives the error. Garcia v. Co-Con, Inc., 1981-NMCA-065, 96 N.M. 308, 629 P.2d 1237. Depositions entitled to same consideration as other testimony. - Nothing in Rule 26 (now this rule) concerning depositions indicates that deposition testimony is to have a lesser effect than testimony presented "live" at trial or that deposition testimony is insufficient to raise a conflict in the evidence; deposition testimony is entitled to the same consideration as any other testimony. Martinez v. Universal Constructors, Inc., 1971-NMCA-160, 83 N.M. 283, 491 P.2d 171. Generally as to specificity of objection. - An objectionable question and answer contained in a deposition cannot be reached by a general objection to the deposition itself. Texas, S.F. & N. Ry. v. Saxton, 1893-NMSC-031, 7 N.M. 302, 34 P. 532 (decided under former law). Objections at trial timely. - Plaintiff has no duty before trial to take steps to open the deposition and inspect it; therefore, objections made at trial to the use of the deposition were made with reasonable promptness and due diligence within the meaning of this rule. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Party may lose right to object. - The plaintiff could not claim reversible error because the trial court considered medical depositions which were not properly before it because they had not been introduced into evidence; since no objection was made to the use of the depositions as evidence by the trial court, the plaintiff relied on a part of one of the depositions and he pointed to nothing in the depositions which might be considered as prejudicial error. There being sufficient competent evidence to support the findings and judgment, the admission of incompetent evidence not shown to be prejudicial was not reversible error. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71. Am. Jur. 2d, A.L.R. and C.J.S. references. - 23 Am. Jur. 2d Depositions and Discovery §§111 to 115, 193 to 196. Waiver of incompetency of witness as to transactions with decedent by taking his deposition, 64 A.L.R. 1164, 107 A.L.R. 482, 159 A.L.R. 411. Introduction of deposition by party other than the one at whose instance it was taken, 134 A.L.R. 212. Introduction in evidence of deposition of deceased party by adverse party as affecting the latter's statutory disqualification to testify against deceased's representative, 158 A.L.R. 306. Impeachment of witness by evidence or inquiry as to arrest, accusation or prosecution, 20 A.L.R.2d 1421. Admissibility of deposition of child of tender years, 30 A.L.R.2d 771. Propriety and effect of jury in civil case taking depositions to jury room during deliberations, 57 A.L.R.2d 1011. Admissibility in evidence of deposition as against one not a party at time of its taking, 4 A.L.R.3d 1075. Party's right to use as evidence, in evidence in civil trial, his own testimony given upon interrogatories or depositions taken by opponent, 13 A.L.R.3d 1312. Taking deposition or serving interrogatories in civil case as waiver of incompetency of witness, 23 A.L.R.3d 389. Admissibility of deposition, under Rule 32(a)(3)(B) of Federal Rules of Civil Procedure, where court finds that witness is more than 100 miles from place of trial or hearing, 71 A.L.R. Fed. 382. Use, in federal criminal prosecution, of deposition of absent witness taken in foreign country, as affected by Federal Rule of Criminal Procedure 15(b) and (d) requiring presence of accused and that deposition be taken in manner provided in civil actions, 105 A.L.R. Fed. 537. 26A C.J.S. Depositions §§ 19, 56, 93, 99, 105.