6.4 - Use of Depositions at Hearings

(a) Generally

Depositions may be used at hearings against any party who was present or represented at the taking of the deposition (or who had due notice thereof) in any of the following ways:

• Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
• The deposition of an expert witness may be used by any party for any purpose, unless the ALJ rules that such use would be unfair.
• The deposition of a party or of an officer, director, or duly authorized agent of a public or private corporation, partnership, or association which is a party may be used by any other party for any purpose.
• The deposition of a witness may be used by any party for any purpose if the ALJ finds:
  • that the witness is dead;
  • that the witness is out of the United States or more than 100 miles from the place of hearing (unless it appears that the absence of the witness was procured by the party offering the deposition);
  • that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment;
  • that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
  • upon application and notice, that such exceptional circumstances exist to make it desirable to allow the deposition to be used.

(b) Introducing Only Part of a Deposition

If only part of a deposition is offered into evidence by a party, any other party may require the offering party to introduce all of the deposition that is relevant to the part introduced, and any party may introduce any other parts.

(c) Substitution of Parties

Substitution of parties does not affect the right to use depositions previously taken. When a previous proceeding has been dismissed and another proceeding involving the parties and their representatives or successors in interest has been brought, all depositions lawfully taken in the former proceeding may be used in the latter proceeding if they were originally taken therefor.

(d) Format of Depositions Entered into Evidence

A party offering deposition testimony into evidence may offer it in either stenographic or non-stenographic form. However, if offered in non-stenographic form, the party must also provide a transcript of the portions offered.

(e) Objections to Admissibility

A party may object to the introduction into evidence of any deposition or part thereof for any reason that would require exclusion of the evidence if the witness were currently present and testifying.

The following objections 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 remedied if presented at that time:

• objections to the competency of the witness; and
• objections to the competency, relevancy, or materiality of testimony.

The following objections are considered waived unless objection is made before or during the taking of the deposition:

• errors and irregularities occurring at the oral examination in the manner of taking the deposition;
• errors and irregularities in the form of the questions or answers;
• errors and irregularities in the oath or affirmation;
• errors and irregularities in the conduct of parties; and
• errors of any kind which might have been remedied if promptly presented.