The Court of Appeals for the Seventh Circuit recently approved the trial court limiting the use of a deposition to discovery purposes only.
In Griffin v. Foley, — F.3d —-, 2008 WL 4072822, C.A.7 (Ind.), September 04, 2008 (NO. 07-2689) the magistrate judge upon motion of the defendant issued an order providing that the deposition of a medical expert should first be taken for discovery, then subsequently be followed by an evidence deposition. The defendant had contended that he should have time to consider the testimony elicited in the discovery deposition before having to cross-examine the medical witness. Granting the motion the magistrate judge stated that it was “reasonable to allow some period of time between discovery of all information used by an expert and the preparation of cross-examination for trial.”
Prior to the trial the attorney for plaintiffs gave notice of an intent to utilize the “discovery” portions of the deposition at the trial. The court held that those discovery portions of the first deposition were not admissible and limited plaintiffs to the evidentiary portions of the depositions.
The jury returned a verdict for the defendant and plaintiffs appealed. Among the claims of error was the court’s refusal to allow portions of the “discovery” deposition to be used at trial. In affirming the trial court, the Court of Appeals acknowledged that the rules are silent regarding any distinction between depositions for discovery purposes and those taken for the purpose of use at trial. See Tatman v. Collins, 938 F.2d 509, (4th Cir. 1991). The court further noted that although the rules are silent about employing the procedure used by the magistrate judge the court said it believed that the magistrate judge’s use of it in this case was reasonable and within his discretion. The court said:
“The obvious purpose of discovery is to determine the opinions and positions of the opposition’s witnesses and prepare for cross-examination. Had there not been some gap in time between the discovery depositions and the cross-examination of Griffins’ experts, Foley’s attorneys would not have been able to effectively prepare for cross-examination.”