A major discovery tool in civil litigation is the deposition. Not only can you discover facts you weren’t previously aware of, you can elicit powerful testimony to use against your opponent at a future trial. But how do you get this deposition testimony into evidence at trial?
In federal court, the key is Rule 32 of the Federal Rules of Civil Procedure, which is aptly titled, “Using Depositions in Court Proceedings.” But many lawyers don’t fully understand how Rule 32 works, and more specifically, don’t appreciate all of the scenarios under which they can play a deposition video clip for the jury or read the jury parts of a deposition transcript. There’s a simple answer—so long as the words coming out of the deponent’s mouth would be admissible under the Federal Rules of Evidence if that deponent were sitting live in the witness box at the trial, you can offer that deposition testimony at trial.
To understand why this is so, let’s start with the plain text of Rule 32. It sets out three criteria for offering deposition testimony at trial:
- (1) “the [opposing] party was present or represented at the taking of the deposition or had reasonable notice of it”;
- (2) “it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying”; and
- (3) “the use is allowed by Rule 32(a)(2) through (8).”
It is the third criterion—the “allowed use” criterion—that vexes lawyers the most. And that’s because the rule doesn’t spell out the categories of “allowed uses” as clearly as it could have done. In sum, there are essentially four categories of allowed uses.
Unavailable Witness
First, the “unavailable witness” category. It’s what it sounds like. In short, whether the deponent was a party or not, if the deponent is unavailable come trial time, you can offer the deponent’s deposition testimony (again, to the extent that testimony would be admissible if the deponent were present and testifying at trial). The rule sets out circumstances under which a witness is unavailable, including when they are more than 100 miles from the courthouse.
Opposing Party
Second, the “opposing party” category. If the deponent was your opposing party (which the rule defines broadly to reach the legal representatives of parties—e.g., officers, directors, or corporate reps), you can offer the deposition testimony (again, subject to the caveat we’ve been discussing—to the extent the testimony would be admissible if the deponent were present and testifying at trial).
Impeachment
Third, the “impeachment” category. This is also what it sounds like—your deponent is now present and testifying as a witness at trial, and you’re impeaching him with his or her deposition testimony. The most common form of such impeachment will be impeachment by prior inconsistent statement under Federal Rule of Evidence 613. But there are other forms (e.g., bias).
The Catch All
Many lawyers think the categories of “allowed use” end there. But there’s a fourth category, which also happens to be the broadest. Under this fourth category, a party may use a deponent’s deposition testimony “for any other purpose allowed by the Federal Rules of Evidence.” This category is hidden within the text of Rule 32(a)(2), which is where the “impeachment” category is set out. Specifically, the category reads: “Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence.” Fed. R. Civ. P. 32(a)(2) (emphasis added).
So, what’s an example of where a deponent’s testimony would be admissible under this fourth category but not the other three? A classic one is where, at the time of the deposition, the deponent was an employee or agent of your opposing party and was testifying about a matter within the scope of his employment. The relevant rule of evidence is Federal Rule of Evidence 801(d)(2)(D), which excludes from the rule against hearsay statements “made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D). So, if you’re deposing an employee of your opposing party and they’re testifying about matters within the scope of their job, you’re free to use that testimony at trial.
A good example of a party making use of this fourth category is Giganews, Inc. v. Perfect 10, Inc., No. CV1705075ABJPRX, 2019 WL 1422723, at *7 (C.D. Cal. Mar. 13, 2019). In that case, the plaintiff deposed two of the defendant’s employees. Later, the plaintiff put both employees on her witness list and subpoenaed them for trial. In addition to all of that, the plaintiff sought to offer the deposition testimony of those two employees in her case-in-chief (both the transcripts and the videotapes of the deposition). The defendant objected, arguing that Rule 32 did not allow the plaintiff to use the employees’ deposition testimony because the employees were not “unavailable.”
The district court rejected the argument, pointing out that the employees’ deposition testimony was admissible under the fourth category we’ve been discussing. The court wrote: “Fed. R. Civ. P. 32(a)(2) allows use of a deposition for cross-examination, impeachment, ‘or for any other purpose allowed by the Federal Rules of Evidence,’ without regard to whether the witness is unavailable. In turn, Fed. R. Evid. 801(d)(2) provides that a statement is not hearsay if ‘it is offered against an opposing party and . . . was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.’ Here, both [employees] were employed by Defendants, and Defendants do not object that their testimony concerned matters outside the scope of their roles.”
In other words, the court allowed the plaintiff to use deposition testimony even though the witnesses were not unavailable because the employees’ deposition testimony qualified as statements of an opposing party under Rule 801(d)(2). Other courts have relied on this fourth “catch all” category under Rule 32. Walker v. City of Buffalo, No. 22-CV-00520-MAV, 2025 WL 828242, at *22 (W.D.N.Y. Mar. 17, 2025) (recognizing that while “Fed. R. Civ. P. 32 defines some circumstances in which a deposition is admissible” it “leav[es] most issues of admissibility to the Federal Rules of Evidence”) (cleaned up)).
In conclusion, don’t let Rule 32 confuse you regarding the admissibility of deposition testimony. When taking your depositions, consider all the ways you may be able to later offer that deposition testimony at trial. That way, you can make sure to lay the proper foundations during the deposition for rules of evidence like Rule 801(d)(2).