State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1A > GS_1A-1__Rule_32

Rule 32. Use of depositions incourt proceedings.

(a)        Use of depositions.– At the trial or upon the hearing of a motion or an interlocutory proceedingor upon a hearing before a referee, any part or all of a deposition, so far asadmissible under the rules of evidence applied as though the witness were thenpresent and testifying, may be used against any party who was present orrepresented at the taking of the deposition or who had reasonable noticethereof, in accordance with any of the following provisions:

(1)        Any deposition maybe used by any party for the purpose of contradicting or impeaching thetestimony of deponent as a witness.

(2)        The deposition of aperson called as a witness may also be used as substantive evidence by anyparty adverse to the party who called the deponent as a witness and it may beused by the party calling deponent as a witness as substantive evidence of suchfacts stated in the deposition as are in conflict with or inconsistent with thetestimony of deponent as a witness.

(3)        The deposition of aparty 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) or31(a) to testify on behalf of a public or private corporation, partnership orassociation or governmental agency which is a party may be used by an adverseparty for any purpose, whether or not the deponent testifies at the trial orhearing.

(4)        The deposition of awitness, whether or not a party, may be used by any party for any purpose ifthe court finds: that the witness is dead; or that the witness is at a greaterdistance than 100 miles from the place of trial or hearing, or is out of theUnited States, unless it appears that the absence of the witness was procuredby the party offering the deposition; or that the witness is unable to attendor testify because of age, illness, infirmity, or imprisonment; or that theparty offering the deposition has been unable to procure the attendance of thewitness by subpoena; or upon application and notice, that such exceptionalcircumstances exist as to make it desirable, in the interest of justice andwith due regard to the importance of presenting testimony of witnesses orallyin open court, to allow the deposition to be used; or the witness is an expertwitness whose testimony has been procured by videotape as provided for underRule 30(b)(4).

(5)        If only part of adeposition is offered in evidence by a party, an adverse party may require himto introduce any other part which is relevant to the part introduced, and anyparty may introduce any other parts.

            Substitutionof parties pursuant to Rule 25 does not affect the right to use depositionspreviously taken; and, when an action in any court of the United States or ofany state has been dismissed and another action involving the same subjectmatter is afterward brought between the same parties or their representativesor successors in interest, all depositions lawfully taken in the former actionand duly prepared, certified, and delivered in accordance with Rule 30 may beused in the latter as if originally taken therefor.

(b)        Objections toadmissibility. – Subject to the provisions of Rules 28(b) and subsection (d)(3)of this rule, objection may be made at the trial or hearing to receiving in evidenceany deposition or part thereof for any reason which would require the exclusionof the evidence if the witness were then present and testifying.

(c)        Effect of taking orusing depositions. – A party does not make a person his own witness for any purposeby taking his deposition. The introduction in evidence of the deposition or anypart thereof for any purpose other than that of contradicting or impeaching thedeponent makes the deponent the witness of the party introducing thedeposition, but this shall not apply to the use by an adverse party of adeposition under subsection (a)(2) or (a)(3) of this rule. At the trial orhearing any party may rebut any relevant evidence contained in a depositionwhether introduced by him or by any other party.

(d)        Effect of errorsand irregularities in depositions. –

(1)        As to Notice. – Allerrors and irregularities in the notice for taking a deposition are waivedunless written objection is promptly served upon the party giving the notice.

(2)        As toDisqualification of Person before Whom Taken. – Objection to taking adeposition because of disqualification of the person before whom it is to betaken is waived unless made before the taking of the deposition begins or assoon thereafter as the disqualification becomes known or could be discoveredwith reasonable diligence.

(3)        As to Taking ofDeposition. –

a.         Objections to thecompetency of a witness or to the competency, relevancy, or materiality oftestimony are not waived by failure to make them before or during the taking ofthe deposition, unless the ground of the objection is one which might have beenobviated or removed if presented at that time.

b.         Errors andirregularities occurring at the oral examination in the manner of taking thedeposition, in the form of the questions or answers, in the oath oraffirmation, or in the conduct of parties, and errors of any kind which mightbe obviated, removed, or cured if promptly presented, are waived unlessseasonable objection thereto is made at the taking of the deposition.

c.         Objections to theform of written questions submitted under Rule 31 are waived unless served inwriting upon the party propounding them within the time allowed for serving thesucceeding cross or other questions and within five days after service of thelast questions authorized.

(4)        As to Completion andReturn of Deposition. – Errors and irregularities in the manner in which thetestimony is transcribed or the deposition is prepared, signed, certified,sealed, indorsed, transmitted, or otherwise dealt with by the person taking thedeposition under Rules 30 and 31 are waived unless a motion to suppress thedeposition or some part thereof is made with reasonable promptness after suchdefeat is, or with due diligence might have been, ascertained. (1967, c. 954, s. 1; 1975, c.762, s. 2; 1977, c. 984; 1981, c. 599, s. 2; 2005‑138, ss. 5, 6.)