Rule 32. Use of depositions in court proceedings

Use of depositions in court proceedings.

(a) Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Alabama Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Alabama Rules of Evidence.

(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than one hundred (100) miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the depositions; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the witness is a licensed physician or dentist; or (E) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (F) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce all of it which ought in fairness be considered with the part introduced, and any party may introduce any other parts. A deposition previously taken may also be used as permitted by the Alabama Rules of Evidence. Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action has been brought in any court of this state or of the United States or of any other state and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

(b) Objections to admissibility. Subject to the provisions of subdivision

(d) (3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(c) [Omitted].

(d) Effect of errors and irregularities in depositions.

(1) AS TO NOTICE. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving notice.

(2) AS TO DISQUALIFICATION OF OFFICER. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(3) AS TO TAKING OF DEPOSITION.

(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

(C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five (5) days after service of the last questions authorized.

(4) AS TO COMPLETION AND RETURN OF DEPOSITION. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

(dc) District court rule. Rule 32 applies in the district courts in those instances when a deposition on oral examination or a deposition on written questions is permitted by Rule 26(dc). [Amended effective October 1, 1995; January 1, 1996.]

Committee Notes

Committee Comments on 1973 Adoption Subdivision (a). Use of Depositions. This section is comparable to Tit. 7, § 474(4), Code of Ala. Note that Rule 32(a) clearly eliminates the possibility of certain technical hearsay objections which are based not on the contents of deponent’s testimony but on his absence from court. Rule 32(a)(2) is expanded to include the use of the deposition of a person designated by an organizational party in response to a subject matter description in a deposition notice. Rule 32(a)(3) is quite similar to Tit. 7, § 474(4), Code of Ala., although the Alabama section’s categories wherein use of a deposition is permitted appear to be much broader. The justification for the broad scope arose from the dual thrust of Alabama statutes regulating discovery. Earlier provisions for depositions were drawn only to cover situations wherein justification for other than live testimony at trial might have once existed. Subsequent deposition statutes were enacted for the purpose of obtaining pretrial discovery. This latter discovery statute catalogued the instances wherein depositions in lieu of live testimony were permissible for discovery purposes and also for purposes of obtaining a deposition wherein other than live testimony at trial was justified under the older statutes. Hence, situations from both sets of deposition statutes were lumped into Tit. 7, § 474(4), Code of Ala. By way of example, a woman was entitled to be spared the embarrassment of a court appearance under Tit. 7, § 474(4)(c)(2) and Ex parte Brooks, 249 Ala. 606, 32 So.2d 534 (1947). Modern examples of such reluctance on the part of the distaff are sparse. Consequently, the less specific catalogue provided by Federal Rule 32(a)(3) is more appropriate for the purposes of these rules. A detailed examination and comparison of the circumstances wherein a deposition was permitted to be used under Tit. 7, § 474(4), Code of Ala., and Federal Rule 32(a)(3) yields the conclusion that adoption of