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§ 6-332. Use of depositions in court proceedings.

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   (a) Use of Depositions. Any part or all of a deposition, so far as admissible under the Nebraska Evidence Rules 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 purpose permitted by the Nebraska Evidence Rules.

   (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 one hundred miles from the place of trial or hearing, or out of the state, or beyond the subpoena power of the court, 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) 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; or

   (F) Upon application and notice prior to the taking of the deposition, that circumstances exist such 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 or her to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts relevant to the issues.

Substitution of parties 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 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 Nebraska Evidence Rules.

   (b) Objections to Admissibility. Subject to the provisions of 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; or if the trial court directs, such objections may be heard and determined prior to trial.

   (c) (Not Used).

   (d) Effect of Errors and Irregularities in Deposition.

   (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 or relevancy 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. In a deposition recorded and preserved by nonstenographic means, such objections shall be made to the court before the trial or hearing, or such objections will be waived unless otherwise ordered by the court.

   (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 depositions.

   (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 ten days after service of the last questions authorized.

   (4) As to Interpreting, Completing and Returning the Deposition. An objection to how the interpreter interpreted the questions or answers, how the officer transcribed the testimony, or how the officer prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition is waived unless a motion to suppress the deposition is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.

COMMENTS TO RULE 32

   32(a)(3) creates an exception to the hearsay rule. In other words, a deposition does not have to satisfy the requirements of Neb. Rev. Stat. § 27-804(2)(a) to be admissible under this subdivision. See Walton v. Patil, 279 Neb. 974, 984, 783 N.W.2d 438, 446 (2010). Under subdivision (3)(B), the witness must be at least 100 miles away in order to use the deposition because Neb. Rev. Stat. § 25‑1227 establishes 100 miles as the maximum distance a witness must ordinarily travel for a civil trial. Subdivision (3)(E) allows use of a deposition under exceptional circumstances; under subdivision (3)(F) the court may authorize use of the deposition in the absence of exceptional circumstances if the application is made before the deposition is taken.

   32(d) The rule includes an objection to interpretation as one that may be raised by a motion to suppress the deposition. The objection can only be raised if a request to review the deposition was made pursuant to Rule 30(e)(1). The deponent may correct alleged errors in interpretation by signing a statement listing the changes and the reasons for them pursuant to Rule 30(e)(1). The errors, however, may be so extensive that the deposition is inherently inaccurate. In that case, the deponent may file a motion to suppress the deposition in its entirety. See Rule 30(e)(3). So too may an opposing party. An opposing party may also file a motion to suppress the deposition in part on the ground that there were errors in interpreting a limited but material part of the deposition and those errors render that part inherently inaccurate. If the court suppresses a deposition in whole or in part, the court may order the deposition to be retaken in whole or in part.

   It should be noted that the rule requires the motion to be filed promptly. A motion may be untimely if the party failed to act with reasonable diligence in obtaining a transcript or recording of the deposition or in reviewing the transcript or recording.

§ 6-332(d)(4) and Comments to Rule 32 amended October 21, 2015, effective January 1, 2016.

This page was last modified on Monday, January 25, 2016