Using Synchronized Video Clips to Impeach an Adverse Witness

| by Heather Duncan, Esq.

Litigators have consistently told us that the use of a synchronized video clip of a deposition is one of the most powerful discovery tools available to impeach an adverse witness at trial. We have also been told that having the clips available for playback has impacted case outcomes on multiple occasions. This month’s Network News focuses on the legal aspects of making and using synchronized video clips for impeachment purposes.

Before a deposition can be recorded on video, it must be properly noticed. CCP §2025.330 (c) allows the party noticing the deposition to record the testimony using video technology if the intention to do so is stated in the notice. If it is not already there, you should consider adding video recording language in every deposition notice. There is nothing that requires you to actually record video, but not having it stated in your notice can preclude you from doing so.

Any video made with even a potential use in court should be synchronized with the deposition transcript at the time the deposition transcript is produced. Synchronizing is the process of linking your deposition video with the written transcript so they play back in synch. Synched video allows the text of the testimony to scroll across the bottom of the screen as the video of a deponent speaking is played. Once a video has been synched with the transcript, a “clip” can be made for playback in court, hearings, mediation or even in another deposition. A clip is a small segment of the video deposition made without editing or removing anything.

CCP §2025.620 outlines the scenarios under which any part or all of a deposition may be used against a party who was present at the deposition including for the purpose of contradicting or impeaching the testimony of the deponent. If the video is to be used along with a portion of the transcript under CCP §2025.620, CCP §2025.340(m) requires that the court and all parties to the case be notified in writing within sufficient time for objections to be made and ruled upon by the judge.

If you intend to use a clip from a synched video, remember to always lodge the original deposition transcript with the court before trial. California Rules of Court Rule 2.1040 requires that “a party offering into evidence an electronic sound or sound-and-video recording must tender to the court and to opposing parties a typewritten transcript of the electronic recording.”

Next month we will provide you with our experts’ secrets on creating clips from synchronized video and using them at trial and what to look out for when it is your opposing counsel using the clips.

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