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David E. Ortman

Non-oral testimony during deposition.

During a deposition, the opposing council objected to the witness marking on an illustrative diagram/map. His objection was based on Civil Rule 30 which says that any party may take the testimony of any person by deposition upon oral examination. He went further and objected to the witness marking on an illustrative diagram/map as "creating new evidence."

Now Rule 30 also says that examination may proceed as permitted at the trial under the Rules of Evidence.

And Rule 26 says that it is no ground for objection that the information sought will be inadmissible at the trial i the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

In summary, what is the clearest rule rebuttal to objections to any non-oral response, such as marking an exhibit during a deposition.

[I suppose one non-rule response is to have the witness orally describe what he is doing. "I have placed an X near the stick figure of the policeman on illustrative exhibit number 3" although this doesn't answer the objection that this is creating new evidence.)

Persipiring minds want to know.


I'm skeptical of that objection. Just asking the witness a question at a depostion is "creating new evidence." If it were me, I'd just carry on with the deposition as planned.

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