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Leveraging Depositions and Testimony From Prior Litigation as Evidence at Trial: FRCP 32 and FRE 804

Avoiding Redundant and Costly Depositions

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, July 7, 2020

Recorded event now available

or call 1-800-926-7926

This CLE course will take practitioners beyond the fundamentals of using depositions for impeachment and discuss when depositions from prior litigation may be introduced as substantive evidence. The webinar also will cover when to anticipate using a deposition in subsequent cases and how to lay a proper foundation for that future use during questioning.


Federal Rule 32 allows the introduction of a witness' deposition testimony in current litigation under specific conditions. Most of the time, the deposition was taken in the same action where it will be used at trial, but not always.

Federal Rule 32(a)(8) permits the use of depositions taken in prior cases to be used in court proceedings on the same subject matter and between the same parties or their representatives and assigns. Federal Rule of Evidence 804(b)(1) and state-law counterparts permit prior depositions to be introduced against parties in a subsequent case so long as the party or its predecessor in interest in the prior case had an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination.

The proper application and interpretation of Rule 32(a)(8) and related rules of evidence may arise in mass tort cases when plaintiffs wish to prove their case in chief with testimony of company representatives or experts taken in a prior suit to which the current plaintiff was not a party. The issue may also arise when liability is established against defendants in one case, but the successful plaintiff needs to file a separate suit to recover from vicariously liable third parties, such as recipients of fraudulent conveyances who reside in other jurisdictions.

Listen as our experienced panel reviews, from both the plaintiff's and defendant's perspective, the traditional uses in court of deposition testimony and then shows practitioners novel ways to leverage prior depositions.



  1. The nuts and bolts of FRCP 32
  2. The meaning of FRCP 32(a)(8)
    1. Same subject matter
    2. Same parties
    3. Representatives or successors in interest
  3. FRE 804 unavailability
    1. Who is a party's "predecessor in interest"
    2. What is an opportunity and "similar motive" to develop testimony
  4. Other evidentiary considerations


The panel will review these and other notable matters:

  • Traditional uses of depositions in court
  • When depositions from prior cases may be used under Rule 32(a)(8)
  • Rules of evidence that must be considered in connection with using depositions


DeSimone, Andrew
Andrew DeSimone

Sturgill Turner Barker & Moloney

Mr. DeSimone's litigation practice includes numerous trial and appellate victories in the areas of medical...  |  Read More

Moore, Escum
Escum L. (Trey) Moore, III

Moore & Moore


 |  Read More

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