Deposition
The oral examination of a witness under oath, conducted out of court but on the record. Principal mechanism for obtaining detailed witness testimony before trial and for preserving testimony of witnesses unavailable at trial.
A deposition is the oral examination of a witness under oath, conducted out of court but on the record (typically by court reporter, often video-recorded). Depositions are the principal mechanism for obtaining detailed witness testimony before trial and for preserving testimony of witnesses unavailable at trial.
Categories of depositions
Oral depositions: the standard format. Counsel asks questions, the witness answers under oath, the court reporter transcribes.
Depositions on written questions: questions are submitted in writing and read by an officer to the witness. Limited use, mostly for records custodians and routine matters.
Depositions of corporate parties (TRCP 199.2(b)(1)): the requesting party identifies topics; the responding entity designates one or more witnesses to testify on those topics.
Pre-suit depositions (TRCP 202): taken before suit is filed, either to investigate a potential claim or to perpetuate testimony of a witness who may become unavailable.
Time and scope limits
Under TRCP 199.5(c), oral depositions are limited to six hours of examination per witness. The scope of permissible questions is the same as the broader discovery scope under TRCP 192.
Use at trial
Deposition testimony may be used at trial: (1) for impeachment; (2) to refresh recollection; (3) as substantive evidence if the witness is unavailable; (4) for any purpose if the deponent is a party. Deposition transcripts are admissible at summary judgment.
Depositions are typically the single most expensive component of discovery in commercial cases. Effective deposition practice involves substantial preparation, both preparing witnesses to testify and preparing examination outlines for opposing witnesses. Video depositions have largely replaced transcript-only depositions for key witnesses, given their effectiveness with juries.
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