Another important tool used in discovery (and sometimes for the trial of a matter as well) is the deposition. A deposition is the taking of out-of-court oral testimony of a witness or party. The witness or party giving the deposition is placed under oath by a court reporter — who is also a notary public — and that oral testimony is then recorded and transcribed by the court reporter. Some depositions may be videotaped and used at trial as well.
For purposes of discovery, depositions are great for fact-finding. Depositions are usually taken after the exchanging of interrogatories and documents, because the evidence obtained from other discovery requests often provides a foundation for the questions posed to the deponent. Any documents, photographs, or other evidence referred to during the deposition are marked and numbered as exhibits for the deposition, and the court reporter attaches copies of these exhibits to the subsequent deposition transcript. Depositions are used to determine just what a witness or party knows or doesn’t know with respect to a case. Depositions are also an opportunity for an opposing party to observe the witness or party to determine just how that witness or party may act at trial. Does the witness present as honest and credible? Would a jury tend to like or dislike this party or witness?
In Maryland, Depositions are typically only used in Circuit Court proceedings and they are governed by Maryland Rules 2-411 through 2-419. Maryland Rule 2-411 provides:
Rule 2-411. Deposition — Right to take
Any party to an action may cause the testimony of a person, whether or not a party, to be taken by deposition for the purpose of discovery or for use as evidence in the action or for both purposes. Leave of court must be obtained to take a deposition (a) before the earliest day on which any defendant’s initial pleading or motion is required; (b) that is longer than one seven-hour day; (c) of an individual confined in prison; or (d) of an individual who has previously been deposed in the same action unless further deposition is permitted under Rule 2-415 (i) because substantive changes have been made to the deposition transcript. Leave of court may be granted on such terms as the court prescribes.
In order to take the deposition of an opposing party or witness, the opposing party or witness must be served with a Notice to Take Deposition. The Notice to Take Deposition is, essentially, the “invitation” to attend a deposition. A party can be served the Notice to Take Deposition through his/her attorney. If the deponent (the one being deposed) is a non-party witness, generally the Notice to Take Deposition must be accompanied by a properly issued subpoena. A Notice to take Deposition should be served ten (10) days prior to the scheduled date of the deposition. If the party requesting the deposition also desires the opposing party or non-party witness to bring documents or other evidence to the deposition, the Notice to Take Deposition should set forth a list of the documents requested and it should be served no earlier than thirty (30) days prior to the scheduled deposition date. As a practical matter, it is beneficial to collaborate with the opposing side to schedule depositions on dates/times that are convenient for all parties and counsel.
Maryland Rule 2-412 sets forth the requirements for a Notice to Take Deposition:
Rule 2-412. Deposition — Notice
(a) Generally. A party desiring to take a deposition shall serve a notice of deposition upon oral examination at least ten days before the date of the deposition or a notice of deposition upon written questions in accordance with Rule 2-417. The notice shall state the time and place for taking the deposition and the name and address of the person to be examined or, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena is to be served on the person to be examined, it shall be served at least ten days before the date of the deposition.
(b) Videotape or audiotape. If the deposition is to be recorded by videotape or audiotape, the notice shall specify the method of recording. If a videotape deposition is to be taken for use at trial pursuant to Rule 2-419 (a) (4), the notice shall so specify.
(c) Documents or other tangible things. The notice to a party deponent may contain or be accompanied by a request for the production of documents or other tangible things at the taking of the deposition, in which case the provisions of Rule 2-422 shall apply to the request. A non-party deponent may be required to produce documents or other tangible things at the taking of the deposition by a subpoena. If a subpoena requiring the production of documents or other tangible things at the taking of the deposition is to be served on a party or nonparty deponent, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice and the subpoena shall be served at least 30 days before the date of the deposition.
(d) Designation of person to testify for an organization. A party may in a notice and subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, managing agents, or other persons who will testify on its behalf regarding the matters described and may set forth the matters on which each person designated will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.
(e) Objection to form. Any objection to the form of the notice for taking a deposition is waived unless promptly served in writing.
When a deposition is taken upon oral examination, examination and cross-examination of the deponent may proceed as permitted in the trial of an action in open court. Counsel for the party “noting” begins the examination first, followed by that party’s counsel getting an opportunity to pose his/her own questions.
Because depositions are taken with counsel present and under oath, they become significant pieces of evidence in a case. If the person being deposed changes his or her story, then the deposition testimony can be used to impeach that witness at trial. Moreover, because deposition testimony is taken under oath, deposition testimony can be used as evidence for motions for summary judgment or it can be used as evidence at trial.