Depositions are an essential aspect of civil litigation. Hawaii rules provide for many devices to obtain discovery. Depositions are one of the most effective. Specifically, H.R.S. Rule 26(a)- General Provisions Governing Discovery provides as follows:
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.
H.R.S. Rule 26(a)
A deposition allows one party to question another party or witness under oath. Depositions are recorded by court reporter and/or videotape. I personally believe that depositions are particularly useful discovery tools since they “may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness” at “the trial or upon the hearing of a motion or an interlocutory proceeding.” H.R.S. Rule 32(a). In other words, deposition testimony is almost as important as trial testimony.
The Hawaii Rules provide that “any party may take the testimony of any person, including a party, by deposition . . .” H.R.S. Rule 30(a). However, “a party desiring to take the deposition of any person shall give reasonable notice in writing to every other party to the action.” H.R.S Rule 30(b). The other parties to the action may also cross-examine the witness. H.R.S. Rule 30(c).
If a witness is served with a deposition subpoena, it should be taken seriously. The sanctions for failing to appear can be harsh. The party who noticed the deposition may file a motion requesting that the Court impose the following orders:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him or her from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
H.R.S. Rule 37(b)(2).
An order dismissing the action against the party who fails to appear for his or her deposition is a particularly drastic remedy. However, these sanctions are necessary to ensure that witnesses appear for depositions and participate in the discovery process. The easiest way to avoid this outcome is to ensure that the witness appears for his deposition.