Fed. R. Civ. P. 32(a)(3). ii. Application of the Federal Rules of Evidence The Federal Rules of Evidence allow more liberal use of depositions than Rule 32(a): 1. Deposition statements of a nonparty witness may also be offered at trial as substantive evidence if the deponent testifies at trial and is subject to cross-examination concerning the statements, and one of the following applies: • The statements are inconsistent with his or her trial testimony, see Fed. R. Evid. 801(d)(1)(A). • The statements are consistent with his or her trial testimony and offered to rebut a charge that the trial testimony is fabricated or improperly influenced or motivated, see Fed. R. Evid. 801(d)(1)(B).
Antitrust Division Manual | Fifth Edition Chapter IV. Litigation U.S. Department of Justice, Antitrust Division Page IV-43 2. A statement that is an admission by a party-opponent is admissible as substantive evidence under the circumstances described in Fed. R. Evid. 801(d)(2). 3. If a witness is unavailable, as defined by Fed. R. Evid. 804(a), the deposition will not be excluded as hearsay when offered against a party if that party had an opportunity and similar motive to develop the testimony of the witness at his or her deposition by direct, cross, or redirect examination. See Fed. R. Evid. 804(b)(1). iii. Use of Part of the Deposition If only part of a deposition is offered in evidence, an adverse party may require the contemporaneous introduction of any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. See Fed. R. Civ. P. 32(a)(4); Fed. R. Evid. 106. iv. Objections to Admissibility Rule 32(b) provides that objections may be made at trial to the admissibility of any deposition for any reason which would require the exclusion of the evidence if the witness were then present and testifying. The only exceptions to this Rule relate to objections that must be made at the time of the deposition. See Fed. R. Civ. P. 32(d)(3). v. Effect of Taking or Using Depositions The Federal Rules of Evidence have eliminated the concept that a party calling or taking the deposition of a witness vouches for that witness and is barred from impeaching the witness. Fed. R. Evid. 607 provides that the credibility of a witness may be attacked at trial by any party, including the party calling the witness. Fed. R. Evid. 611(c) provides that when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party at trial, interrogation may be by leading questions. Taking the deposition of a witness does not bind the party to frame questions as on direct examination. 3. Use of Interrogatories a. Applicable Federal Rule of Civil Procedure Under Rule 33, a maximum of 25 written interrogatories, including “all discrete subparts,” may be served upon any party. A question asking about communications of a particular type counts as one interrogatory, even though it requests the time, place, persons present, and contents separately for each communication. See Advisory Committee Notes to Rule 33(a). The limitation can be altered by local rule, order of the court, or stipulation of the parties. See Fed. R. Civ. P. 33(a).
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