Updated on August 16, 2017
Taking depositions is fairly standard in any kind of civil litigation – it is a “go to” tool within any civil litigator’s discovery toolbox. But, other than for the purpose of learning what the deponent knows and/or what his or her version of events is, how does an attorney use deposition testimony? Generally speaking, an attorney will use deposition testimony for a couple of different purposes: (1) at trial, the attorney can potentially use deposition testimony to catch a deponent in a lie if the deponent changes his or her story when testifying at trial; and (2) the attorney can use deposition testimony as evidentiary support for various motions leading up to trial, including motions for summary judgment.
Of course, to use deposition testimony as evidentiary support for a motion, it has to be properly authenticated. In other words, it is subject to the same personal knowledge, competency, and other admissible evidence requirements as a declaration from a witness. So how does an attorney authenticate the deposition testimony he or she wants to use as evidence? Usually, declarations from an attorney are used to authenticate deposition testimony. The relevant portions of the deposition testimony are either set forth in a declaration or copies of the relevant pages from the deposition transcript are attached as exhibits to the declaration. The attorney will declare that he or she took or attended the deposition and thus can show reasonable personal knowledge that the deposition testimony is what the attorney is claiming it is. (See Weil & Brown, Cal Prac Guide: Civ Proc Before Trial (TRG 2014), §§ 10:162 to 10:164; and see Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523, 121 Cal.Rptr.3d 118)
An alternative method of authentication for deposition excerpts is simply to include the court reporter’s signed certification page. (Greenspan, supra at 523.) Once the deposition testimony is authenticated, it can be considered by the Court as evidence. Of course, this does not solve any double hearsay problems that may result from the contents of the deposition itself.