Depositions are a potent pretrial discovery and trial preparation tool. They allow parties to gather information regarding any non-privileged matter that is relevant to a party’s claim or defense. Through depositions, litigators are able to evaluate the credibility of potential witnesses, authenticate key documents, gain admissions that might narrow the scope of issues to be tried, or identify new theories or defenses to be advanced at trial.
On rare occasions, depositions can also be helpful after trial. Under an infrequently invoked provision in the federal rules (most states have a similar procedure), any party has the right to seek the trial court’s permission to take depositions after the trial has concluded.
Why would a party conduct depositions after the trial is over? Under Rule 27 of the Federal Rules of Civil Procedure, there is just one permissible purpose: to preserve testimony that could be lost during the pendency of an appeal.
As most litigators know, a case isn’t necessarily over after the jury has rendered its verdict. Errors that occurred during the trial might lead an appellate court to set aside the trial outcome and order a new trial. The time period between the two trials could be lengthy, perhaps 2-3 years – long enough that evidence or testimony necessary for the second trial could be lost. That’s where Rule 27 comes to the rescue.
Rule 27(b) provides in part, that “the court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.”
The rule seems simple enough. However, in practice, Rule 27 presents several hurdles that will be difficult for most parties to jump over:
- the sole permissible purpose for seeking court permission to conduct a post-trial deposition is to preserve testimony that would otherwise be lost during the pendency of an appeal
- a request to conduct a post-trial deposition must allege facts suggesting that taking the deposition (i.e., preserving the sought-after testimony) may prevent a failure or delay of justice
- the sought-after deposition must seek evidence within the scope of discovery for the same litigation, not a new proceeding
- post-trial depositions can only be conducted with the trial court’s permission
- a request to conduct a post-trial deposition must be filed during the pendency of the appeal or within the time for filing an appeal from the trial court’s judgment
The purpose of Rule 27(b) is to bridge the time gap that exists between the date that the trial court enters an appealable order (and ordinarily would lose jurisdiction over the proceeding) and the date that the appellate court acquires jurisdiction over the appeal. This time period could be lengthy, during which critical evidence could be lost.
In order to succeed on a Rule 27(b) motion to conduct a deposition, litigators will likely need to offer evidence from a physician demonstrating that the would-be deponent’s health is so poor it’s unlikely he or she would survive until the retrial of the case. It may also be possible to demonstrate some other set of facts that might render the would-be deponent unavailable for retrial, such other grounds for “unavailability” within the federal rules.
Interestingly, Rule 27(b) also authorizes depositions to be conducted when an appeal is pending before the U.S. Supreme Court, even though in most instances Supreme Court jurisdiction is invoked via writs of certiorari – not technically “appeals.”
When it comes to conducting depositions, the case isn’t over until it’s really over. That means when the very last appeal has been taken and decided.
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