Testimony Generally

ORS 45.250
Use of deposition


(1)

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions of this subsection:

(a)

Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness.

(b)

The deposition of a party, or of anyone who at the time of taking the deposition was an officer, director or managing agent of a public or private corporation, partnership or association that is a party, may be used by an adverse party for any purpose.

(2)

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party for any purpose, if the party was present or represented at the taking of the deposition or had due notice thereof, and if the court finds that:

(a)

The witness is dead;

(b)

The witness is unable to attend or testify because of age, sickness, infirmity or imprisonment;

(c)

The party offering the deposition has been unable to procure the attendance of the witness by subpoena;

(d)

Upon application and notice, 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

(e)

The deposition was taken in the same proceeding pursuant to ORCP 39 I.

(3)

For the purpose of subsection (2)(c) of this section, the failure of a party to serve a witness at the time of deposition with a subpoena that requires the appearance of the witness at trial or other hearing does not constitute sufficient grounds to deny the use of the deposition of that witness at the trial or other hearing without further showing of a lack of diligence on the part of the party offering the deposition. [1955 c.611 §§8,9; 1979 c.284 §83; 1987 c.275 §1; 1989 c.980 §4; 2001 c.234 §1; 2007 c.71 §12]

Notes of Decisions

Erroneous admission of a deposition is not reversible error if the witness is later called and testifies. Fulton v. B. F. Goodrich Co., 260 Or 245, 490 P2d 178 (1971)

A deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness, irrespective of whether parties other than the one taking the deposition were present or represented at the taking of the deposition or had due notice thereof. Osborne v. Bessonette, 265 Or 224, 508 P2d 185 (1973)

The depositions of party defendants are admissible as substantive evidence against all defendants. Stroda v. State Hwy. Comm., 22 Or App 403, 539 P2d 1147 (1975)

In marriage dissolution case, where husband made informed decision, after notice, to forego representation at deposition, he could not later complain about its admission. Fearn and Fearn, 45 Or App 517, 608 P2d 620 (1980)

To admit deposition testimony, offering party need only show inability to procure attendance of witness by subpoena, and not that offering party sought voluntary return of witness under ORS 40.465 (OEC Rule 804). Hansen v. Abrasive Engineering and Manufacturing, 317 Or 378, 856 P2d 625 (1993)

"Managing agent" refers to person enjoying high rank and authority over significant part of corporate operations. Graham v. Brix Maritime Co., 160 Or App 1, 979 P2d 765 (1999)


Source

Last accessed
Jun. 26, 2021