Oral Deposition in Civil and Criminal Cases

A deposition is an often misunderstood procedure of questioning witnesses under oath. Lawyers are often confused as to what the rules are. I offer some guidance from my experience on deposition issues here.

Who Can Attend a Deposition

Any party to a civil lawsuit is entitled to be present at a deposition. In a criminal proceeding in Florida, the accused is not permitted to attend the deposition of witnesses. Because a deposition is a court proceeding, they are arguably open to the public. The Florida Supreme Court also recognized that it was essential to a free society for judicial proceedings to remain open to the public, finding that “the public and press have a right to know what goes on in a courtroom whether the proceeding is criminal or civil.” State ex rel. Miami Herald Pub. Co. V. McIntosh, 340 So. 2d 904, 908. This, however, is not a First Amendment right. See Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378 (Fla. 1987).

In Short v. Gaylord Broadcasting Company, 462 So. 2d 591 (Fla. 2d DCA), the Second District Court of Appeal states that Florida Rule of Civil Procedure 1.280(c) gives the trial court the authority to control who may or may not attend a deposition, and that the standard for a person or party seeking to exclude a person from the deposition is “for good cause shown” that the attendance of the person sought to be excluded will cause some annoyance, embarrassment, oppression, or undue burden or expense.

Transcripts of depositions or portions of transcripts may need to be sealed from the public if filed with the Court or Clerk of Court. This may be because it contains private information or because the Judge has ruled it must remain sealed for a reason the Court has deemed appropriate.

Whether “the rule” of sequestering witnesses from a deposition can be invoked on the deposition depends on what jurisdiction the case is filed. As a general rule, sequestering witnesses to as to avoid the coloring of testimony is simply a good practice for the administration of justice.

Party, Non-party or Corporate Representative Witness Deposition

The rules for a deposition in Florida can be found at within the Florida Rules of Civil Procedure. There are at least three people involved in the actual deposition: the person asking questions, the witness or deponent and the court reporter who is normally also a notary public with the authority to swear in the witness.

Depositions of witnesses in a case are a part of the discovery process. In a deposition, a witness or deponent is either a party witness or a non-party witness. A party to the case is a plaintiff or defendant in a civil proceeding or the government or defendant in a criminal proceeding. A non-party witness is anyone who has knowledge of the facts of the case. For parties to a civil lawsuit, they can be deposed after a notice of deposition has been filed. A notice of taking deposition duces tecum can also be filed, by which the party is required to appear for the deposition with the requested documents. For a non-party deponent, the witness must be served with a subpoena to compel their testimony. A witness may be served with a subpoena duces tecum to compel the deponent to appear for the depositions with any requested, relevant documents.

For a corporate representative’s deposition in a civil proceeding, a notice of taking corporate representative must be filed. The corporation must choose which witnesses will have knowledge of the issues identified in the notice.

A Court Proceeding

A deposition is considered a court proceeding like a hearing would be in open court. The witness is asked questions by the lawyer who set the deposition. This is a direct examination. The other party’s lawyers or opposing party’s lawyers have the right to ask questions on cross-examination. In Florida, objections can be made either to the form of the question or based on privilege. A judge is not normally present unless for some reason it is needed.

At the deposition, the witness or deponent will be placed under oath. It begins with simple questions as to the witness’ name, address, and employment if any. The deponent will be asked general questions and questions that are specific to the case.

A court reporter will take down or transcribe everything that is said in the deposition.

Use of Deposition Transcripts

In criminal proceedings, depositions are for discovery purposes or impeachment of a witness’ credibility at trial only unless the procedure to perpetuate testimony is met and followed. In civil proceedings, the transcript for discovery purposes or can be used to support evidentiary motions such as a motion for summary judgment.

Venue

A plaintiff in a civil case can be deposed at the venue in which the case was filed. When a plaintiff hauls a defendant into court, that plaintiff subjects him, her or itself to being deposed in that venue.

The deposition of a human defendant in a civil case must be taken in the county where the defendant resides and within 50 miles of his or her residence. For a corporate defendant in a civil case, its deposition must be taken where its principal place of business is located. Of course, the parties or their lawyers can agree to meet at a place not required by the rules of civil procedure.

In criminal cases, local rules generally require that depositions of witnesses occur at the courthouse where the prosecutor’s office is located, the courthouse where the criminal charge was filed or if for witnesses in custody, at the jail.

MOTION FOR PROTECTIVE ORDER OR TO QUASH SUBPOENA

If a witness has an objection to being deposed or to the notice or subpoena for a deposition, the witness can file a motion for protective order to either stop the deposition entirely or to limit its scope. A witness may also move to quash a subpoena if the subpoena itself is procedurally flawed such as for a lack of personal service or for a substantive reason such as the witness has no knowledge of the case.

For good cause shown, the court in which the action is pending may make any order to protect a party of a person from annoyance, embarrassment, oppression, or undue burden or expense.

If you need legal assistance at a deposition, please contact a lawyer. Riley Law Group assists its clients in all aspects of depositions and can be contacted at any time for this purpose.