Advisory Commission Comments to Rules 32.01-32.04

Advisory Commission Comments

This Rule is designed to bring together rules relating to the timing and method of presentation of objections based on errors and irregularities in depositions.

32.01: The added language [in 1984] in Rule 32.01(3)(D), dispensing with the necessity of a trial subpoena for deponents exempt under revised Tenn. Code Ann. § 24-9-101, changes the requirement under prior law, explained in Stokes v. Leung, 651 S.W.2d 704, 710 (Tenn. Ct. App. 1982). [1984.]

The new sentence [in 1984] inserted at the end of 32.01(3) protects the trial lawyer who takes an opposing expert’s discovery deposition by court order or by agreement from being confronted with the deposition as substantive proof at trial. Tactically the discovering lawyer wants to find out everything the expert intends to say at trial and conducts a very open inquiry, expecting many unfavorable answers; there is no cross-examination in the trial sense. It would be unfair to plaintiffs and defendants alike to have such a deposition admitted as former testimony on the ground that the deponent is unavailable, whether dead, outside the jurisdiction, or more than one hundred miles from the courtroom. If the party who hired the expert wants to take a deposition for proof, of course, that can be accomplished by notice or agreement. The present amendment applies only to a discovery deposition of the adversary’s expert. [1984.]

The Commission recommends [in 1987] adding language to the last paragraph of Rule 32.01 to make the former testimony hearsay exception work the same way with depositions in civil actions as it does with preliminary hearing transcripts in a criminal prosecution with the advent of State v. Causby, 706 S.W.2d 628 (Tenn. 1986). Causby, at page 631, adopts F. R. Evid. 804(b)(1) insofar as it admits former testimony against a person who at the prior hearing “’had an opportunity and similar motive to develop the testimony….’” The previous deposition rule appears to limit substantive use of depositions – the most common type of former testimony – to subsequent lawsuits involving the “same parties,” thereby imposing a strict identity of parties requirement rejected by the Supreme Court in Causby. [1987.]

The added sentence [in 1990] at the end of Rule 32.01 is needed to conform the Rules of Civil Procedure to the Rules of Evidence. Under Rule 804(b)(1), Tennessee Rules of Evidence, depositions may be admissible as former testimony even though taken in an action other than one dismissed before the present suit was filed. [1990.]

Advisory Commission Comment [2001]

Rule 32.01(3) describes when a deposition can be used “for proof” under the former testimony hearsay exception. Except with respect to some experts, a deposition is admissible as substantive evidence at trial if the deponent is unavailable to give live testimony.

Advisory Commission Comment [2004]

Rule 32.01(4) is conformed to the rule of completeness in Evidence Rule 106.

Advisory Commission Comment [2006]

The new language in Rule 32.01(3) incorporates by cross-reference all of the unavailability grounds listed in Evidence Rule 804(a). That list includes deponents who are more than 100 miles from the courthouse on trial day. The more restrictive provision for discovery depositions of experts is retained.

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