Neb. Sup. Ct. R. 6-332

As amended through November 11, 2024

Section 6-332 - [Effective 1/1/2025] Using depositions in court proceedings

(a) Using Depositions.

(1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:

(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;

(B) it is used to the extent it would be admissible under the Nebraska Rules of Evidence if the deponent were present and testifying; and

(C) the use is allowed by Rule 32(a)(2)-(8).

(2) Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any purpose allowed by the Nebraska Evidence Rules.

(3) Deposition of a Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or of anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or Rule 31(a)(5).

(4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:

(A) that the witness is dead;

(B) that the witness is more than one hundred miles from the place of hearing or trial or is outside the state, or beyond the subpoena power of the court, unless it appears that the witness' absence was procured by the party offering the deposition;

(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;

(D) that the party offering the deposition could not procure the witness' attendance by subpoena;

(E) that exceptional circumstances make it desirable -- in the interest of justice and with due regard to the importance of live testimony in open court --, to permit the deposition to be used; or

(F) on motion and notice prior to the taking of the deposition, that circumstances make it desirable -- in the interest of justice and with due regard to the importance of live testimony in open court -- to permit the deposition to be used.

(5) Limitation on Use; Unavailable Deponent; Party Could Not Obtain an Attorney. A deposition taken without leave of court under the unavailability provision of Rule 30(a)(2)(A)(iii) must not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent it at the deposition.

(6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an adverse party may require the of feror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.

(7) Substituting a Party. Substituting a party does not affect the right to use a deposition previously taken.

(8) Deposition Taken in an Earlier Action. A deposition lawfully taken in any federal- or state court-action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Nebraska Evidence Rules.

(b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying; or if the trial court directs, such objections may be heard and determined prior to trial.

(c) Transcript, Form of Presentation, and Notice of Use.

(1) Transcript. Unless the court orders otherwise, a party must:

(A) provide the court with a transcript of any deposition testimony the party offers, but may provide the court with the testimony in audio or audiovisual form as well; or

(B) if the deposition was not recorded stenographically, provide the court and the other parties with a transcript of the portions of the deposition requiring a ruling from the court.

(2) Form. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in audio or audiovisual form, if available, unless the court for good cause orders otherwise.

(3) Notice. A party who may offer a deposition in audio or audiovisual form for any purpose other than impeachment must give the other parties reasonable written notice before the hearing or trial and an opportunity to object to use of all or part of the deposition.

(d) Waiver of Objections.

(1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.

(2) To the Officer's Qualifications. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made:

(A) before the deposition begins; or

(B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.

(3) To the Taking of the Deposition.

(A) Objection to Competence or Relevance. An objection to a deponent's competence - or to the competence or relevance of testimony - is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time. But if a deposition was recorded by audio or audiovisual means only, the objection is waived by the failure to make it to the court before the hearing or trial unless the court, for good cause, excuses the failure.

(B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:

(i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and

(ii) it is not timely made during the deposition.

(C) Objection to a Written Question. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it.

(4) As to Interpreting, Completing and Returning the Deposition. An objection to how the interpreter interpreted the questions or answers, how the officer transcribed the testimony, or how the officer prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition is waived unless a motion to suppress the deposition is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.

Neb. Sup. Ct. R. 6-332

§ 6-332(d)(4) and Comments to Rule 32 amended October 21, 2015, effective 1/1/2016; amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-332

[1] The rule governs the use of depositions in court proceedings. The rule was amended in 2015 to address interpreters and was amended again in 2024 to address issues raised by depositions that are recorded by audio or audiovisual means.

[2] Subpart (a)(4) creates an exception to the hearsay rule. In other words, a deposition does not have to satisfy the requirements of Neb. Rev. Stat. § 27-804(2)(a) to be admissible under this subpart. See Walton v. Patil, 279 Neb. 974, 984 (2010). Under subpart (a)(4)(B), the witness must be at least 100 miles away in order to use the deposition because Neb. Rev. Stat. § 25-1227 establishes 100 miles as the maximum distance a witness must ordinarily travel for a civil trial. Subpart (a)(4)(E) allows use of a deposition under exceptional circumstances; under subpart (a)(3)(F), the court may authorize use of the deposition in the absence of exceptional circumstances if the application is made before the deposition is taken.

[3] Recording a deposition solely by audio or audiovisual means can reduce costs. Reducing costs is especially important for self-represented parties and parties represented pro bono. But the interests of the court become relevant when a party seeks to use the deposition at a hearing or trial. It is usually easier for a court to review a transcript rather than a recording. Subpart (c)(1)(B) accommodates the competing interests by requiring a party who took a deposition non-stenographically to provide the court and the other parties with "a transcript of the portions of the deposition requiring a ruling from the court." If there are objections on just a few pages of the deposition, then the party only needs to have a transcript prepared of those few pages. It should be noted that subpart (c)(1) requires a party to provide a transcript "[u]nless the court orders otherwise." The quoted language makes it clear that the court has the discretion to dispense with the transcript requirement if compliance would be unnecessary or especially onerous.

[4] Depositions that are recorded by stenographic means are sometimes recorded by audio or audiovisual means as well. If the deposition is used at trial, the lawyers may read part or all of the deposition testimony at trial. But the reality is that jurors are more likely to pay attention to a recording of a deponent testifying than they are to lawyers reading the questions and answers. Subpart (c)(2) reflects that reality by requiring that a deposition recorded by audio or audiovisual means must be presented in audio or audiovisual form in a jury trial if any party requests that it be presented in that form. The requirement does not apply if deposition testimony is used for impeachment purposes, however, or if the court determines that there is good cause for not presenting the testimony in that form.

[5] Section 6-332(d)(3)(A) provides that if a deposition was recorded by audio or audiovisual means only, competency and relevance objections are waived unless they are made to the court before the hearing or trial. It makes sense to resolve competency and relevance objections beforehand - but a party needs to know beforehand that a deposition will be used so that it can raise its objections beforehand. Therefore, subpart (c)(3) provides that if a party that plans to use an audio or audiovisual deposition for any purpose other impeachment, the party must give the other parties reasonable written notice before the hearing or trial.

[6] One of the objections that can be raised by a motion to suppress is an objection to how the interpreter interpreted the questions or answers. The objection can be raised only if a request to review the deposition was made pursuant to § 6-330(e)(1). The deponent may correct alleged errors in interpretation by signing a statement listing the changes and the reasons for them. The errors, however, may be so extensive that the deposition is inherently inaccurate. In that case, the deponent or a party may file a motion to suppress the deposition in its entirety. See § 6-330(e)(3). A party may also file a motion to suppress the deposition in part on the grounds that there were errors in interpreting a limited but material part of the deposition and those errors render that part inherently inaccurate. If the court suppresses a deposition in whole or in part, the court may order the deposition to be retaken in whole or in part.

[7] Subpart (d)(4) provides that a motion to suppress must be promptly filed. A motion may be untimely if the party failed to act with reasonable diligence in obtaining a transcript or recording of the deposition or in reviewing the transcript or recording.