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Rule 32 – Use of Depositions in Court Proceedings

May 14, 2021 | Civil Procedure, South Carolina

(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 Rule 30(b)(6) or 31(a) 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 if the court finds:

(A) that the witness is dead; or
(B) that the witness is at a greater distance than 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; or
(C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or
(D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(E) 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 him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
(5) Excerpts From Depositions to Be Offered at Trial. At least 1 day prior to offering excerpts from a deposition in the case in chief counsel, unless otherwise ordered by the trial judge, shall furnish to the trial judge and, at the same time and by the same means, furnish to all opposing counsel the excerpts from depositions (by page and line number) and a list of deposition exhibits which counsel expects to introduce in the case in chief at trial. When the deposition excerpt is offered at trial counsel for the adverse party shall furnish to the trial judge and, at the same time and by the same means, furnish to all opposing counsel any objections (by page and line number) to opposing counsel’s deposition excerpts and any additional excerpts from the depositions (by page and line number) which counsel expects to be read pursuant to SCRCP (a)(4), as well as a list of deposition exhibits to be used. With reasonable notice to the trial judge and all counsel, other excerpts may be read.
(b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subdivision (d)(3) 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) Effect of Taking or Using Depositions. A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision (a)(2) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.
(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.
(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.
(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 31 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 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, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 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.

Objections to the competency of a witness, or to the competency, relevancy, or materiality of testimony are not so waived but reserved for consideration by the court either at a pre-trial conference or prior to the deposition being admitted.

S.c. R. Civ. P. 32

Note to 1994 Amendment:

Rule 32(a)(5) requires that excerpts of depositions and deposition exhibits that are to be used in the party’s case in chief are to be provided to the judge and counsel 1 day before use. Adverse counsel shall identify the portions of the deposition and its exhibits that will be used at the time the excerpts are offered. This rule does not apply to excerpts that are to be used for impeachment purposes.

Substitution of parties pursuant to Rule 25 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 rules of evidence.

This is current Federal Rule 32(a), which is an amended version of the Federal Rule which served as the guide for Circuit Court Rule 87D. There are minor changes in the wording of the rule, but no significant alterations.

This is the current Federal Rule which is an amended version of the Federal Rule which served as the guide for Circuit Court Rule 87E. There are minor clarifying amendments.

This is the language of the Federal Rule which is an amended version of the Federal Rule which served as the guide for Circuit Court Rule 87(f). There are minor modifications in the language of the rule. This provision was deleted from the Federal rules in 1972 because of the adoption of the Federal Rules of Evidence. It was added here because the State has not adopted Rules of Evidence.

This is the language of current Federal Rule 32(d). There is no counterpart of this provision in the Circuit Court Rules. In essence these provisions provide that errors or irregularities in the procedure of taking the deposition, or in depositions under written interrogatories, or in the transcription, certification, and filing are waived if not made at the time the error could have been corrected.

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