Rule 32.Use of Depositions in Court Proceedings

Rule 15-6-32 governs when a deposition taken during discovery can be used as evidence later in the case. If a party was present, represented, or had reasonable notice when the deposition was taken, any part of it may be used against that party at trial or a hearing, so long as it would be admissible under the rules of evidence had the witness been on the stand. Any deposition may be used to contradict or impeach the deponent, or for any other purpose the South Dakota Rules of Evidence allow. The deposition of a party, or of an officer, director, managing agent, or designated representative of a corporate or governmental party, may be used by an adverse party for any purpose at all. And the deposition of any witness, party or not, may be used by any party for any purpose once the court finds one of several things true: the witness has died, is out of state through no fault of the party offering the deposition, cannot attend or testify because of age, illness, infirmity, imprisonment, or occupational commitments, could not be brought in by subpoena, or that exceptional circumstances make using the deposition the fair course given the importance of live testimony.

The rule also protects against a one-sided picture. If a party introduces only part of a deposition, the opposing party may require that any other part be introduced too, if fairness calls for reading it alongside the excerpt offered, and any party may introduce still other parts. A deposition lawfully taken in an earlier, dismissed action involving the same subject matter and the same parties or their successors can carry over into a later action on that same subject.

Once a deposition is in play, Rule 15-6-32 addresses what using it does and does not do. Taking someone’s deposition does not make that person your own witness. But introducing the deposition for a purpose other than impeachment does make the deponent the introducing party’s witness, except when an adverse party uses a party or corporate-representative deposition under the rule’s second ground. Either side may rebut relevant evidence a deposition contains, no matter who introduced it. Objections to receiving a deposition in evidence may still be raised at trial for any reason that would exclude the testimony if the witness were live, subject to the rule’s own provisions on disqualified officers and on the timing of objections to a deposition’s taking.

The rule’s last part sorts objections into those that must be raised early and those preserved regardless. Objections to the notice of a deposition are waived unless promptly served in writing. Objections to the disqualification of the officer taking the deposition are waived unless raised before the deposition begins or as soon as the disqualification is discovered. Objections to a witness’s competency, or to the relevance or materiality of testimony, survive even without a contemporaneous objection, unless the problem could have been fixed had someone raised it at the time. But errors in how the oral examination itself was conducted, in the form of questions or answers, or in the oath, are waived unless raised at the deposition, since those problems are the kind a prompt objection could have cured. Objections to written cross-questions must be served within the time set for later questions and within five days after the last authorized questions. And errors in how the deposition was transcribed, signed, certified, or filed are waived unless a motion to suppress follows with reasonable promptness after the defect comes to light or should have been discovered.