In civil litigation, depositions are a key pretrial discovery tool used to uncover facts, obtain admissions, gather evidence for motions, and assess witnesses. They prevent “trial by ambush” by revealing crucial information early, supporting the goal of a fair, efficient resolution of cases, as emphasized in Rule 1 of the Federal Rules of Civil Procedure. Skilled litigators use depositions to evaluate trial outcomes and determine whether to settle or proceed to trial, especially since most cases settle before trial.
Two recent appellate opinions provide examples of courts protecting the vital role of pretrial depositions in civil litigation.
Deposition Testimony Can’t Be Improved by Affidavit
In Clacks v. Kwik Trip Inc., No. 23-1983 (7th Cir., July 24, 2024), the U.S. Court of Appeals for the Seventh Circuit addressed the sham affidavit rule, which prevents a party from blunting the impact of damaging deposition testimony by filing post-deposition affidavits that contradict, or add facts not mentioned at, the deposition. The record in Clacks indicated that the plaintiff was subjected to racial harassment from a trainer during his time working as a truck driver for defendant Kwik Trip Inc. During his deposition, Clacks testified that he had reported to a supervisor that the trainer was “awful” — but no more. However, in a post-deposition affidavit submitted in opposition to Kwik Trip’s summary judgment motion, Clacks provided additional details of racial harassment he had experienced with the trainer.
The trial court rejected the affidavit, applying the “sham affidavit” rule, and the Seventh Circuit affirmed. As defined in James v. Hale, 959 F.3d 307, 316 (7th Cir. 2020), the sham affidavit rule “prohibits a party from submitting an affidavit that contradicts the party’s prior deposition or other sworn testimony” so that a “genuine issue of material fact cannot be conjured out of nothing.” In this case, the Seventh Circuit remarked: “Trial courts may disregard affidavits that add new factual details not previously disclosed in deposition testimony when those details seek to undo the effects of the prior testimony and manufacture a dispute to get past summary judgment.” Because Clacks’ affidavit both contradicted his earlier deposition testimony and added facts he had withheld during the deposition, the trial court was justified in declining to consider it when ruling on Kwik Trip’s summary judgment motion.
Both rulings should give litigators confidence that their investment in, and preparation for, pretrial depositions is well worth their expense and time.
The Importance of Witness Demeanor
The second case, Hayes v. Watson, No. 85087-COA (Nev. Ct. App., Aug. 29, 2024), involved a personal injury claim against several doctors and a surgical center. The defendants prevailed at a jury trial, but on appeal the Nevada Court of Appeal agreed with the plaintiff that two trial court errors — both involving the use of deposition testimony — required a new trial.
The first error was the trial court’s refusal to allow the plaintiff to use video clips from an earlier videotaped deposition of one of the doctor defendants. Despite a state court rule that allows depositions of a party to be used “for any purpose,” the trial court ruled that the deposition could be used only for impeachment purposes. The court further limited the plaintiff’s ability to use the videotaped deposition by ruling that only the transcript — not the video — could be used to impeach the doctor.
Both trial court rulings regarding the videotaped deposition were error, the appellate court decided. The phrase “for any purpose,” as used in Rule 32 of the Nevada Rules of Civil Procedure, means just that: any purpose. The deposition of an adverse party can be used by a party in its own case, regardless of whether the deponent is available to testify. The trial court’s restriction of the deposition’s use to impeachment only was error, it said.
The trial court also erred by preventing the plaintiff from using video clips from the deposition. A witness’s demeanor and other non-testimonial behavior can constitute relevant evidence, it said. “Because a deponent’s viewed demeanor may provide a clearer indication of a witness’s reliability than the literal meaning of his words, we cannot say that the district court’s refusal to allow Hayes to use video clips of [the doctor’s] deposition did not prejudice Hayes’s ability to present her case,” the court ruled.
Finally, the trial court erred by permitting a doctor (and co-owner of the defendant surgical center) to testify regarding the standard of care for a particular surgical operation given to the plaintiff. The doctor had been deposed as a Rule 30(b)(6) corporate representative witness; one of the topics for examination listed in the deposition notice was “[t]he standard procedure for the removal of backboards beneath trauma patients.” (Allegedly, the plaintiff was injured when a backboard was dropped on her foot.)
During the deposition, the doctor testified that there was no standard procedure for removing backboards. At trial, however, the doctor testified that there was a standard way of removing backboards. It was an error for the trial court to admit the doctor’s testimony, the appellate court said, because the plaintiff’s deposition notice clearly requested this information. If a standard in fact existed, the doctor should have known and testified about it. Alternatively, under the rules for corporate representative depositions, the doctor should have supplemented his deposition testimony prior to trial.
Takeaways
The rulings in Clacks v. Kwik Trip and Hayes v. Watson demonstrate how court rules governing depositions serve to secure the fair and efficient resolution of civil disputes.
In Clacks, the court’s application of the sham affidavit rule safeguarded the importance of deposition testimony by not permitting a later-filed affidavit to embellish or contradict sworn deposition testimony. The impact of deposition testimony can’t be blunted by later-filed affidavits. And in Hayes, the court made two equally significant points: first, that “witness demeanor” evidence obtained during videotaped depositions can be critical in some cases; second, that corporate representative witnesses should take seriously their obligation to research the information requested in the deposition notice and come to the deposition prepared to discuss all of it.
Experienced litigators know that video evidence is compelling, and they’re already familiar with the challenges of deposing unprepared corporate representative witnesses. Still, it’s good to see courts continue to recognize these facts, and good to have recent rulings to cite the next time these issues arise. Both rulings should give litigators confidence that their investment in, and preparation for, pretrial depositions is well worth their expense and time.
