Perpetuating Testimony

| by Heather Duncan, Esq.

Perpetuating testimony is the procedure permitted by both federal and California discovery rules for preserving the attestation of a witness that might otherwise be lost prior to the trial in which it is intended to be used. The usual method of perpetuating testimony is through a deposition. Perpetuation depositions in California state court cases are covered in the California Code of Civil Procedure sections 2035.010-2035.060. Perpetuation depositions in federal court matters are covered in Rule 27 of the Federal Rules of Civil Procedure.

Generally, testimony obtained in a deposition may not be used at trial unless it is used for impeachment of a witness or it can be shown at the time of trial that the deponent is unavailable. A perpetuation deposition is a statutory exception to the general rule. Perpetuation depositions are almost always taken pursuant to a court order and alleviate the need to prove the unavailability of the witness at the time of trial. 

Perpetuation depositions are allowed when it is more likely than not that the witness will not be available to testify at trial.  For example, if it is contemplated that the witness may die before trial, then the witness’s testimony would be perpetuated through a deposition, and the transcript read at trial, in lieu of a personal appearance by the witness. The possible downside is that the noticing party must use the deposition at the time of trial, even if the witness is available.

At a perpetuation deposition the questioning is conducted in a manner similar to that of a witness at trial. All objections must be made on the record and not during trial. The taking attorney will conduct direct-examination, followed by cross-examination and then re-direct.

Because they are intended for use at trial, perpetuation depositions are often videotaped and may be taken in a hospital, medical facility or the bedside of a witness. Before taking a perpetuation deposition it is a good idea to get as much information as possible about any extra steps that may need to be taken to make process as easy as possible under often difficult circumstances

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