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Like Steve Jobs, Unavailable Witnesses Can Still “Appear” at Trial

451334569In the trial of an antitrust case against Apple, Steve Jobs will come back to life as a key witness—if only in the form of his videorecorded deposition.

In his video deposition, CNN Money reports that Jobs was “snarky” and “characteristically defensive, evasive and opaque” as he said “`I don’t remember,’ `I don’t know’ or `I don’t recall’ 74 times during the two-hour session.” His appearance in the video will certainly be more captivating than a reading from a cold deposition transcript.

Although unavailability at trial was anticipated with Jobs, it’s always possible. The next time you find that the only way a witness is going to appear at trial is by using the video of his or her deposition, review this checklist of special considerations (CCP §2025.340(m)):

__   1.  Notify the court and other parties of your intention. If you intend to introduce all or part of the video deposition testimony at trial, you’ll need to notify the court and all parties in writing in “sufficient” time for the trial judge to hear and rule on opposing parties’ written objections and for any necessary editing of the recording.

__   2.  Ascertain whether all objections have been responded to. If the opposing party has made written objections to the video deposition, respond to them, preferably in writing.

__   3.  Consider possible responses by the court. The court can (1) rule on the objections, (2) allow the parties to designate additional testimony to be offered, and (3) allow further objections that the court decides are required in the interests of justice.

__   4.  If you’re only using part of the deposition. If you’re designating only a portion of the recorded testimony for use at trial, the court may order you to suppress the nondesignated portions or to prepare an edited version of the recording.

__   5.  Preserve the original recording. If the court orders the suppression or editing of a portion of the recording, make sure that the original is preserved unaltered.

__   6.  Prepare a stenographic record. If the recorded deposition was not also stenographically recorded, you should have the court reporter prepare a stenographic transcript from the video recording and then offer the transcript into evidence at trial at the same time the recorded testimony is offered.

Of course, this all presupposes that you’ve made a video recording of the deposition. This isn’t always the case, as doing so can be a costly proposition. You’ll have to weigh the pros and cons of making a video recording, but you should particularly consider using video when you anticipate either a favorable witness with a good appearance or a hostile one with a poor demeanor who may not be available for trial.

For more on the requirement for a video deposition and the use of deposition at trial, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 12.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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