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Help ILAO open opportunities for justiceA deposition is a type of interview that happens outside of court. One party asks another party, or a witness for the other 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:
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.
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.
There may be local court rules about when you can take an evidence or discovery deposition.
This is a way for you to find out more facts about the case from the other party or witnesses. You cannot use testimony from a discovery deposition at trial, except for limited purposes. These limited purposes are:
Advantages of a discovery deposition:
However, the deposition cannot last longer than 3 hours, excluding breaks.
This is a way to get statements you can later use at a trial. The advantages of an evidence deposition are:
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. The judges decides the objection later.
A party can ask to end the deposition or limit its scope if the examination is:
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.
The party requesting a deposition must give reasonable notice. You must specify in the notice:
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.
You cannot take depositions on weekends or court holidays, unless all parties agree or you get a court order.
If you want to take the deposition of a witness who is not a party to the case, you must use a subpoena and you must attach a copy of the subpoena to the notice.
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. To subpoena a witness, get the form from the circuit clerk’s office.
You must file a subpoena for records only at least 14 days before the deposition.
If you are subpoenaing a non-party witness, you must also pay the witness fee.
You can take a deposition in person, by telephone, video, or other remote electronic means. You must state in the notice the specific electronic method you will use. If you are taking a deposition in person but intend to audio and/or video record the deposition, you must indicate this in the notice as well.
Depositions must be taken in the county where:
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.
If a non-party refuses to appear for a deposition after properly being served a subpoena and witness fee, 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.
Some of the main reasons for a deposition are to:
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 another party requests a copy of the transcript, that party must pay for it.