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Depostions allow a party to obtain oral testimony from a witness or party outside of the courtroom.
Depositions are one of the most important tools in a litigant’s discovery tool kit that allow one party’s attorney to examine and confront the opposing party in person. In Georgia, depositions may be conducted anytime during the discovery period (that 6 month period of time after the filing of an answer, subject to adjustment by court).
After an action has been initiated, any party may take the testimony of any person, including that of a party, by deposition via oral examination. If a party desires to take the deposition of a person via oral examination, that party must give reasonable written notice to every other party to the action of the deposition. The notice must give the details concerning the circumstances of the deposition, including the time and place of the deposition and the name and addresses of each person to be examined. Additional information may be required for certain types of depositions. The attendance of witnesses may be compelled by subpoena. O.C.G.A. § 9-11-30(a)-(b)(1).
During the deposition of a witness, examination and cross-examination are conducted as they would be at trial. The witness is placed under oath prior to the examination, and the witness’s testimony is recorded. Additionally, attorneys representing the parties to a deposition may make objections regarding the evidence presented, the conduct of a party, or to the manner of taking the deposition among other things. At any time during the deposition, a party or the witness may petition the court in which the action is pending to terminate or limit the scope of the deposition. A court will only make such an order if the petitioning party shows that: “the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.” O.C.G.A. § 9-11-30(c)(d).
After the deposition is complete, the witness may, upon request, review the transcript or recording of the examination for accuracy and make any necessary changes. If changes are made, the witness must sign a statement reciting the revisions and provide reasons as to why the transcript was incorrect. O.C.G.A. § 9-11-30(e).
Practice Pointer - Costs
Although depositions are extremely useful tools, they are often not widely used because of the costs associated with them. One of the most common costs associated with the taking of depositions is the transcription or stenographic fee. Georgia law requires, unless the court orders otherwise, that the testimony at a deposition be recorded by stenographic means or recorded via audio or audiovisual means in addition to stenographic means. The party taking the deposition bears the cost of the recording. O.C.G.A. § 9-11-30(b)(4). Additional costs related to depositions include penalties associated with failure to attend or failure to secure the presence of a witness at a deposition. If a party fails to attend a deposition, that party may be sanctioned by the court. O.C.G.A. § 9-11-30(g).
At a trial or a hearing in the action all or part of a deposition may be used against any party who was present, represented at or had notice of the deposition, so long as the rules of evidence allow it, for either of the purposes listed below:
- To contradict or impeach the testimony of the witness; or,
- For any other purpose that the court approves such as if the court finds that the witness is dead; the witness is out of the country, the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; the party offering the deposition has been unable to procure the attendance of the witness by subpoena; the nature of the business or occupation of the witness makes it impossible to secure his personal attendance without manifest inconvenience to the public or third persons; or the witness will be a member of the General Assembly and that the session of the General Assembly will conflict with the session of the court in which the case is to be tried. O.C.G.A. § 9-11-32.
The above listed ways in which depositions may be used at trial do not constitute an exhaustive list. There may be additional benefits to conducting depositions that are more applicable to your particular case. If you have question regarding whether depositions are necessary or appropriate for your case, speak with an experienced divorce attorney in your area.