What is the Law on Digital Depositions in Florida?
Full Question:
Answer:
Please see the following portion of a Florida Rule of Civil Procedure:
(b) Notice; Method of Taking; Production at Deposition.
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in
writing to every other party to the action. The notice shall state the time and place for taking the deposition and the
name and address of each person to be examined, if known, and, if the name is not known, a general description
sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces
tecum is to be served on the person to be examined, the designation of the materials to be produced under the
subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice states that the person to
be examined is about to go out of the state and will be unavailable for examination unless a deposition is taken
before expiration of the 30-day period under subdivision (a). If a party shows that when served with notice under
this subdivision that party was unable through the exercise of diligence to obtain counsel to represent the party at the
taking of the deposition, the deposition may not be used against that party.
(3) For cause shown the court may enlarge or shorten the time for taking the deposition.
(4) Any deposition may be recorded by videotape without leave of the court or stipulation of the parties,
provided the deposition is taken in accordance with this subdivision.
(A) Notice. A party intending to videotape a deposition shall state in the notice that the deposition is to be
videotaped and shall give the name and address of the operator.
(B) Stenographer. Videotaped depositions shall also be recorded stenographically, unless all parties agree
otherwise.
(C) Procedure. At the beginning of the deposition, the officer before whom it is taken shall, on camera: (i)
identify the style of the action, (ii) state the date, and (iii) swear the witness.
take custody of and be responsible for the safeguarding of the videotape, shall permit the viewing of it by the
opposing party, and, if requested, shall provide a copy of the videotape at the expense of the party requesting the
copy.
(E) Cost of Videotaped Depositions. The party requesting the videotaping shall bear the initial cost of
videotaping.
(5) The notice to a party deponent may be accompanied by a request made in compliance with rule 1.350 for the
production of documents and tangible things at the taking of the deposition. The procedure of rule 1.350 shall apply
to the request.
(6) In the notice a party may name as the deponent a public or private corporation, a partnership or association,
or a governmental agency, and designate with reasonable particularity the matters on which examination is
requested. The organization so named shall designate one or more officers, directors, or managing agents, or other
persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will
testify. The persons so designated shall testify about matters known or reasonably available to the organization. This
subdivision does not preclude taking a deposition by any other procedure authorized in these rules.
(7) On motion the court may order that the testimony at a deposition be taken by telephone. The order may
prescribe the manner in which the deposition will be taken. A party may also arrange for a stenographic transcription
at that party’s own initial expense.
In a criminal case, a defendant will not be physically present at a deposition except on stipulation of the parties or as provided by this rule. The court may order the physical presence of the defendant on a showing of good cause. The court may consider (A) the need for the physical presence of the defendant to obtain effective discovery, (B) the intimidating effect of the defendant’s presence on the witness, if any, (C) any cost or inconvenience which may result, and (D) any alternative electronic or audio/visual means available.
On stipulation of the parties and the consent of the witness, the statement of a law enforcement officer may be taken by telephone in lieu of the deposition of the officer. In such case, the officer need not be under oath. The statement, however, shall be recorded and may be used for impeachment at trial as a prior inconsistent statement pursuant to the Florida Evidence Code.
Please see the following Florida Rule of Civil Procedure:
Rule 1.330. Use of Depositions in Court Proceedings
(a) Use of Depositions. At the trial or upon the
hearing of a motion or an interlocutory proceeding, any
part or all of a deposition may be used against any party who was
present or represented at the taking of the deposition or
who had reasonable notice of it so far as admissible under
the rules of evidence applied as though the witness were
then present and testifying in accordance with any of the
following provisions:
(1) Any deposition may be used by any party for the purpose
of contradicting or impeaching the testimony of the deponent
as a witness or for any purpose permitted by the Florida
Evidence Code.
(2) The deposition of a party or of anyone who at the time
of taking the deposition was an officer, director, or
managing agent or a person designated under rule 1.310(b)(6)
or 1.320(a) to testify on behalf of a public or private
corporation, a partnership or association, or a governmental
agency that is a party may be used by an adverse party for
any purpose.
(3) The deposition of a witness, whether or not a party, may
be used by any party for any purpose if the court finds: (A)
that the witness is dead; (B) that the witness is at a
greater distance than 100 miles from the place of trial or
hearing, or is out of the state, unless it appears that the
absence of the witness was procured by the party offering
the deposition; (C) that the witness is unable to attend or
testify because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition has been unable
to procure the attendance of the witness by subpoena; (E)
upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest
of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open court,
to allow the deposition to be used; or (F) the witness is an
expert or skilled witness.
(4) If only part of a deposition is offered in evidence by a
party, an adverse party may require the party to introduce
any other part that in fairness ought to be considered with
the part introduced, and any party may introduce any other
parts.
(5) Substitution of parties pursuant to rule 1.260 does not
affect the right to use depositions previously taken and,
when an action in any court of the United States or of any
state has been dismissed and another action involving the
same subject matter is afterward brought between the same
parties or their representatives or successors in interest,
all depositions lawfully taken and duly filed in the former
action may be used in the latter as if originally taken for
it.
(6) If a civil action is afterward brought, all depositions
lawfully taken in a medical liability mediation proceeding
may be used in the civil action as if originally taken for
it.
(b) Objections to Admissibility. Subject to the
provisions of rule 1.300(b) and subdivision (d)(3) of this
rule, objection may be made at the trial or hearing to
receiving in evidence any deposition or part of it for any
reason that would require the exclusion of the evidence if
the witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party
does not make a person the party's own witness for any
purpose by taking the person's deposition. The introduction
in evidence of the deposition or any part of it for any
purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party
introducing the deposition, but this shall not apply to the
use by an adverse party of a deposition under
subdivision (a)(2) of this rule. At the trial or hearing any
party may rebut any relevant evidence contained in a
deposition whether introduced by that party or by any other
party.
(d) Effect of Errors and Irregularities.
(1) As to Notice. All errors and irregularities in the
notice for taking a deposition are waived unless written
objection is promptly served upon the party giving the
notice.
(2) As to Disqualification of Officer. Objection to
taking a deposition because of disqualification of the
officer before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be
discovered with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are not
waived by failure to make them before or during the taking
of the deposition unless the ground of the objection is one
that might have been obviated or removed if presented at
that time.
(B) Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the
form of the questions or answers, in the oath or
affirmation, or in the conduct of parties and errors of any
kind that might be obviated, removed, or cured if promptly
presented are waived unless timely objection to them is made
at the taking of the deposition.
(C) Objections to the form of written questions submitted
under rule 1.320 are waived unless served in writing upon
the party propounding them within the time allowed for
serving the succeeding cross or other questions and
within 10 days after service of the last questions
authorized.
(4) As to Completion and Return. Errors and
irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed,
certified, or otherwise dealt with by the officer under
rules 1.310 and 1.320 are waived unless a motion to suppress
the deposition or some part of it is made with reasonable
promptness after the defect is, or with due diligence might
have been, discovered.
