This article is reprinted with permission from the January 28, 2008 issue of The Legal Intelligencer. © 2008 ALM Properties Inc. Further duplication without permission is prohibited. All rights reserved.
Discovery depositions are one of the primary tools utilized to place civil suits in an advantageous posture for trial. In this regard, discovery depositions have always afforded parties the opportunity to compile transcripts, the pages from which serve as trial exhibits to be published in court either as an admission, or as a means of reminding a witness of a prior inconsistent statement. However, as video discovery depositions become more prevalent in practice, the factors that distinguish a pretrial video discovery deposition from a video deposition for use at trial are becoming more difficult to identify.
It is, and has long been permissible in Pennsylvania to record discovery depositions by video. Pennsylvania Rule of Civil Procedure 4017.1 provides that parties may videotape discovery depositions. The predecessor to current Rule 4017.1 became effective in Pennsylvania on an experimental basis in 1973. The rule has remained in effect continuously since its inception. However, prior to the new millennium, notice that a discovery deposition would be recorded by video was infrequently issued.
Until the recent past, requests to record a deposition taken in the ordinary course of discovery by video often solicited an objection from opposing counsel. The Honorable R. Stanton Wettick in the well cited case of Tillett v. Shento 131 P.L.J. 297 (C.P. Allegheny 1982) reasoned that videotaping a discovery deposition added an expense and burden to the proceedings such that a protective order was entered in favor of the party whose deposition had been noticed. Judge Wettick in his capacity as Chair of the Civil Procedure Rules Committee celebrated the 25th anniversary of Tillett v. Shento by publishing in commentary to Rule 4017.1 the Committee's impression that technological advances have rendered obsolete the reasoning which formed the foundation for the Court's award of a protective order in Tillett.
The July 2007 amendments to Pennsylvania Rule of Civil Procedure 4017.1, unambiguously provide a party the right to record a discovery deposition by video "as a matter of course." An increasing number of litigators are now utilizing video as a means of recording discovery depositions on a regular basis. With an increase in the frequency of video discovery depositions, litigators must be cognizant of the extent to which testimony may be presented at trial through video recordings accomplished in discovery.
Depositions that are noticed to be recorded by video for use at trial traditionally involve an agreement of counsel that the deponent's testimony is being taken in lieu of the presentation of live testimony from the deponent at trial. Common practice dictates that the deposition is taken with the understanding that the jury will be presented with the entire video subject to the substantive objections of counsel.
Discovery depositions on the other hand are very often accomplished with the expectation that the witness will be available to testify at trial. In the case of a party, there is an expectation that the witness will be present for the entire trial. Presumably, excerpts from a pretrial discovery deposition video may be used to confront a witness that testifies at trial in a manner that is inconsistent with the witness's pretrial deposition testimony. Contradictory statements played for the benefit of a jury from a witness's discovery deposition certainly could enhance the effect of a cross examination assuming that counsel has the technical support necessary to play the prior inconsistent statement in an efficient manner.
The potential use of discovery video as a cross examination tool at trial may not have a significant impact upon the strategic approach of counsel to the discovery deposition. Counsel taking a discovery deposition regardless of whether recorded by video or stenographic means will continue in their pursuit of admissions that can be used on cross to narrow an opponents claims or defense. Conversely, counsel defending a video discovery deposition will continue to prepare the witness to provide testimony that will ultimately be consistent with the evidence anticipated to be presented at the time of trial.
The extent to which pretrial discovery videos may be used for purposes other than to confront a witness at trial could present more significant strategic questions for counsel defending the video discovery deposition to resolve in advance of that deposition. Pennsylvania Rule of Civil Procedure 4020 provides, so far as admissible under the rules of evidence, that the deposition of a party may be used by an adverse party for any purpose. Application of Pa.R.C.P. No. 4020 to the use of a discovery video deposition of a party at trial would afford a party opponent the opportunity to present the court or jury with an entire discovery video or any portion of the discovery video of a party regardless of whether the witness is present in the courtroom at the time the video is played.
In a medical malpractice case a pretrial discovery video could present plaintiff's counsel with an opportunity to present a jury with the voice and image of the physician defendant and place before the jury admissions necessary to meet the plaintiff's burden at trial without calling the physician defendant to the stand during the presentation of the plaintiff's case in chief. Through use of the discovery video of the defendant physician at trial, the jury is presented with critical admissions. Simultaneously, the ability of the defendant physician to connect with the jury is diminished. Moreover, the ability of the defendant to elaborate or emphasize matters consistent with the defense is effectively held in check until after the close of the plaintiff's case. Plaintiff's counsel eager to keep a defendant physician seated at counsel table throughout the presentation of plaintiff's case should be careful to accomplish a pretrial discovery video in a manner that is focused and affords the defendant limited opportunity to elaborate on matters critical to the defense.
Counsel defending a video discovery deposition of a party should consider the potential ramifications that would flow from a party opponent that may elect to play a discovery video in lieu of calling the client to the stand. Counsel presenting a party for a discovery video deposition should assume the deposition is in fact a deposition for use at trial. Rule 4020 affords a party the opportunity to designate any part of the deposition not otherwise designated for presentation by the party introducing the deposition. However, the opportunity to designate is of little benefit if the witness at the time of his video discovery deposition did not elaborate on matters significant to the witnesses own case. Counsel facing this circumstance could also argue that presentation of cross examination through a pretrial video discovery deposition of a party to the jury is the equivalent of calling the party the stand, thereby triggering an opportunity for direct examination of the witness live in court immediately after the presentation of cross examination by video.
It should be noted that the impact associated with the video recording of a discovery deposition of a non party is diminished as the video may not be used for "any purpose" absent a finding of one of the exceptional circumstances enumerated in Rule 4020(a)(3). The rules provide that the court must find exceptional circumstances such as death of a witness or that the witness is at a distance greater than 100 miles from the place of the trial or that the witness is unable to attend and testify because of age, sickness, infirmity, imprisonment or the like.
The question of whether video will continue to be routinely used to record discovery depositions may in part be determined by decisions from the bench. To date there is very little in the way of guiding case law that addresses use of discovery video depositions at trial. It is of course the function of the trial court to preside over and orchestrate the presentation of evidence at trial. In carrying out this function, trial courts are afforded significant discretion that is not easily overturned on appeal. The use of discovery videos at trial may vary from jurisdiction according to the tolerance of the local bench. Until the trial bar is provided with such guidance from the bench, counsel defending a video discovery deposition should anticipate that it will be used for any purpose depending on the creativity of opposing counsel.
This article is reprinted with permission from the [ISSUE DATE] issue of The Legal Intelligencer. © 2008 ALM Properties Inc. Further duplication without permission is prohibited. All rights reserved.
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