2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 5 - Depositions and Discovery
§ 9-11-32. Use of Depositions in Court Proceedings; Effect of Errors and Irregularities in Depositions

1. Use of depositions. 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 applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
   1. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
   2. The deposition of a party or of anyone who, at the time of taking the deposition, was an officer, director, or managing agent or a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31 to testify on behalf of a public or private corporation, a partnership or association, or a governmental agency which is a party may be used by an adverse party for any purpose;
   3. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
      1. That the witness is dead;
      2. That the witness is out of the county, unless it appears that the absence of the witness was procured by a party offering the deposition;
      3. That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;
      4. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena;
      5. That because of the nature of the business or occupation of the witness it is not possible to secure his personal attendance without manifest inconvenience to the public or third persons; or
      6. That the witness will be a member of the General Assembly and that the session of the General Assembly will conflict with the session of the court in which the case is to be tried;
   4. The deposition of a witness, whether or not a party, taken upon oral examination, may be used in the discretion of the trial judge, even though the witness is available to testify in person at the trial. The use of the deposition shall not be a ground for excluding the witness from testifying orally in open court; or
   5. If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
2. Objections to admissibility. Subject to paragraph (3) of subsection (d) of this Code section, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
3. Effect of taking or using depositions. A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition; but this shall not apply to the use by an adverse party of a deposition under paragraph (2) of subsection (a) of this Code section. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.
4. Effect of errors and irregularities in depositions.
   1. AS TO NOTICE. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
   2. AS TO DISQUALIFICATION OF OFFICER. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
      1. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
      2. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented are waived unless seasonable objection thereto is made at the taking of the deposition.
      3. Objections to the form of written questions submitted under Code Section 9-11-31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized.

         AS TO COMPLETION AND RETURN OF DEPOSITION. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Code Sections 9-11-30 and 9-11-31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

(3) A S TO TAKING OF DEPOSITION.

(Ga. L. 1966, p. 609, § 32; Ga. L. 1972, p. 510, § 5; Ga. L. 1984, p. 22, § 9.)

- Granting of continuance for absence of witness, § 9-10-160.

- For provisions of Federal Rules of Civil Procedure, Rule 32, see 28 U.S.C.

- For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article, "2016 Georgia Corporation and Business Organization Case Law Developments," see 22 Ga. St. Bar J. 58 (April 2017).

ANALYSIS

• General Consideration
• Use of Depositions
• Cross-Examination
• Errors and Objections

General Consideration

Editor's notes.

- Georgia Laws 1972, p. 510, made substantial revisions to certain sections of this chapter dealing with discovery. Prior to the 1972 amendment, this section was substantially the same as former Code 1933, § 38-2107. Subsections (a) through (c) of this section, added by the 1972 amendment, now read substantially the same as did subsections (d) through (f) of § 9-11-26 prior to enactment of Ga. L. 1972, p. 510; hence, decisions under § 9-11-26 prior to its 1972 amendment relating to subject matter now covered by this Code section, are included in the annotations for this Code section.

In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 5910 and 5913 and former Code 1933, Ch. 21, T. 38 are included in the annotations for this Code section.

- Theory of representative cross-examination implicit in federal interpretation of Fed. R. Civ. P. Rule 32 is not adopted in Georgia. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981).

- Fairness demands that no less than all portions relevant to that interrogated about be introduced at the same time as a statement out of context and without accompanying explanatory matter may be unfairly damaging. Wells v. Alderman, 117 Ga. App. 724, 162 S.E.2d 18 (1968); City Council v. Youngblood, 120 Ga. App. 616, 171 S.E.2d 766 (1969); Brown v. Macheers, 249 Ga. App. 418, 547 S.E.2d 759 (2001).

- When an attorney for the appellant introduces a portion of a deposition into evidence, the opposing party is entitled to introduce the remainder, or such portion thereof as was pertinent. Reeves v. Morgan, 121 Ga. App. 481, 174 S.E.2d 460, rev'd on other grounds, 226 Ga. 697, 177 S.E.2d 68 (1970).

Correctness of admission or exclusion of deposition is predicated on harmful error rule. North Ga. Deed & Poultry Co. v. Ultra-Life Labs., 118 Ga. App. 149, 162 S.E.2d 803 (1968).

- Defendants, who rested the defendants' case without introducing any evidence, did not waive the defendants' right to make both opening and concluding arguments to the jury by exercising the defendants' right to require the introduction of the remaining relevant portions of the depositions from which the plaintiffs' counsel had read selected excerpts. Thico Plan, Inc. v. Ashkouti, 171 Ga. App. 536, 320 S.E.2d 604 (1984).

- In a personal injury case, when the defense read into the record portions of a deposition, parts of which the plaintiff previously read into the record, the defense lost the right to present opening and concluding closing argument because the parts of the deposition the defendant read into the record were not relevant to the parts of the deposition the plaintiff read into the record, so the defense made the deponent the defendant's witness and presented evidence under O.C.G.A. § 9-11-32(c). Rouse v. Polott, 274 Ga. App. 226, 617 S.E.2d 185 (2005).

Although physicians may not have appeared to testify in person, the physicians' deposition testimony was certainly not of a "weaker and inferior nature." Meacham v. Barber, 183 Ga. App. 533, 359 S.E.2d 424 (1987).

Cited in Clayton County Bd. of Educ. v. Hooper, 128 Ga. App. 817, 198 S.E.2d 373 (1973); Carter v. Tatum, 134 Ga. App. 345, 212 S.E.2d 439 (1975); Kenney v. Piedmont Hosp., 136 Ga. App. 660, 222 S.E.2d 162 (1975); New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199, 233 S.E.2d 45 (1977); Strother Ford, Inc. v. Bullock, 142 Ga. App. 843, 237 S.E.2d 208 (1977); Harris v. Harris, 242 Ga. 576, 250 S.E.2d 407 (1978); International Ass'n of Bridge Ironworkers, Local 387 v. Moore, 149 Ga. App. 431, 254 S.E.2d 438 (1979); Grant v. Bell, 150 Ga. App. 141, 257 S.E.2d 12 (1979); Stanfield v. Smith, 152 Ga. App. 22, 262 S.E.2d 216 (1979); Garrison v. Rich's, 154 Ga. App. 663, 269 S.E.2d 513 (1980); Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 277 S.E.2d 753 (1981); Stokes v. McRae, 247 Ga. 658, 278 S.E.2d 393 (1981); Associated Grocers Coop. v. Trust Co., 158 Ga. App. 115, 279 S.E.2d 248 (1981); Williams v. Church's Fried Chicken, Inc., 158 Ga. App. 26, 279 S.E.2d 465 (1981); Laughridge v. Moss, 163 Ga. App. 427, 294 S.E.2d 672 (1982); Mulkey v. GMC, 164 Ga. App. 752, 299 S.E.2d 48 (1982); Freeman v. Allstate Bus. Sys., 166 Ga. App. 249, 304 S.E.2d 97 (1983); Sheats v. Tri-Cities Hosp. Auth., 167 Ga. App. 122, 306 S.E.2d 75 (1983); Decker v. Decker, 256 Ga. 513, 350 S.E.2d 434 (1986); Stinson v. Pratt, 182 Ga. App. 552, 356 S.E.2d 519 (1987); Bryant v. Food Giant, Inc., 184 Ga. App. 155, 361 S.E.2d 38 (1987); Davis v. Jones, 189 Ga. App. 569, 377 S.E.2d 163 (1988); State Farm Mut. Auto. Ins. Co. v. United States Fid. & Guar. Co., 190 Ga. App. 220, 378 S.E.2d 400 (1989); Collins v. Newman Mach. Co., 190 Ga. App. 879, 380 S.E.2d 314 (1989); Medlin v. Boyston Lumber & Bldg. Supply, Inc., 193 Ga. App. 608, 388 S.E.2d 861 (1989); T.J. Morris Co. v. Dykes, 197 Ga. App. 392, 398 S.E.2d 403 (1990); Brand Banking Co. v. Roosman, 199 Ga. App. 58, 404 S.E.2d 286 (1991); Renew v. Edenfield, 200 Ga. App. 484, 408 S.E.2d 499 (1991); Morrison v. Koornick, 201 Ga. App. 367, 411 S.E.2d 105 (1991); James v. Tyler, 215 Ga. App. 479, 451 S.E.2d 506 (1994).

Use of Depositions

Discretion of court.

- Use of deposition of witness taken after notice to opposite party and with counsel for both parties present lies within the sound discretion of the court, and this remains true even if the witness may be present in court. Pembrook Mgt., Inc. v. Cossaboon, 157 Ga. App. 675, 278 S.E.2d 100 (1981); Smoky, Inc. v. McCray, 196 Ga. App. 650, 396 S.E.2d 794, cert. denied, 196 Ga. App. 650, 396 S.E.2d 794 (1990).

There was no abuse of discretion in admitting into evidence the deposition of a witness who was available to testify at trial, but had expected to be out of state for a new employer until after the trial, since the circumstances surrounding the taking of the deposition showed that the notice was not unreasonable and the plaintiff did not show how the plaintiff was harmed by admission of the deposition. American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 391 S.E.2d 688 (1990).

After an individual's deposition was taken in Florida, where the individual resided, and the individual walked out before the deposition was completed in an action by an estate administratrix, alleging negligent entrustment against a company, but the administratrix did not attempt to complete the deposition or take any other steps to obtain the discovery before the trial court ruled on a summary judgment motion, the trial court did not abuse the court's discretion in considering the deposition, pursuant to O.C.G.A. § 9-11-32. Scott v. LaRosa & LaRosa, Inc., 275 Ga. App. 96, 619 S.E.2d 787 (2005).

- Evidence of a witness's testimony at the witness's deposition was properly admissible under paragraph (a)(1) of O.C.G.A. § 9-11-32, particularly as the witness had difficulty with memory at the time of trial and conceded the deposition was closer in time to the events in question. Lawson v. Athens Auto Supply & Elec., Inc., 200 Ga. App. 609, 409 S.E.2d 60, cert. denied, 200 Ga. App. 895, 409 S.E.2d 60 (1991).

- Paragraph (a)(2) of this section clearly applies to the deposition of an adverse party, while paragraph (a)(3) of this section does not; hence, paragraph (a)(3) is an expansion of the provisions of paragraph (a)(2), rather than a contradictory restriction. Head v. H.J. Russell Constr. Co., 152 Ga. App. 864, 264 S.E.2d 313 (1980).

- Right to use the deposition in place of a witness or party who is present in court is not absolute. Millholland v. Neal, 118 Ga. App. 566, 164 S.E.2d 451 (1968).

- Deposition, to the extent admissible under the rules of evidence, may be used against any party present or represented at the taking or having due notice thereof, in accordance with any one of the enumerated provisions. Colbert Co. v. Newsom, 125 Ga. App. 571, 188 S.E.2d 266 (1972).

- When the deposition of a witness was taken after notice to the defendants and with counsel of record for all parties present, the use thereof was in the discretion of the trial judge. Ricketts v. Liberty Mut. Ins. Co., 127 Ga. App. 483, 194 S.E.2d 311 (1972).

Deposition of a witness, whether or not a party, taken upon oral examination, may be used in the discretion of the trial judge, even though the witness is available to testify in person at the trial. Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28 (1970).

Decision by the trial court to admit into evidence a deposition taken upon oral examination when the witness is available shall be reversed only when the party objecting to admission of the deposition shows that the trial court abused the court's discretion. Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52, 295 S.E.2d 827 (1982).

Use of deposition of witness present during trial but later excused without the knowledge of the other party is a matter within the sound discretion of the trial court. Watson v. Elberton-Elbert County Hosp. Auth., 229 Ga. 26, 189 S.E.2d 66 (1972).

Showing that deposition was taken in connection with former litigation on the same subject matter between the same parties, as well as others, in the same court, supported the trial judge in allowing the plaintiff to use the deposition. Colbert Co. v. Newsom, 125 Ga. App. 571, 188 S.E.2d 266 (1972).

- Trial court's consideration, on motion for summary judgment, of deposition given by moving party in a prior action between the same parties and concerning substantially the same issues, offered in the present action by the adverse party, was proper; there is no requirement that the deponent needed to be unavailable before the court could examine such deposition. Clover Realty Co. v. J.L. Todd Auction Co., 146 Ga. App. 576, 246 S.E.2d 695 (1978); Mitchell v. Southern Gen. Ins. Co., 194 Ga. App. 218, 390 S.E.2d 79 (1990), cert. denied, 194 Ga. App. 912, 390 S.E.2d 79 (1990).

- Rule as to admissibility is the same when a deposition of a physician is offered as when the physician testifies upon a trial. Sapp v. Kitchens, 124 Ga. App. 764, 186 S.E.2d 121 (1971).

- When a witness subpoenaed by the plaintiffs was an attorney who, at the time of this trial, was compelled to attend the trial of the attorney's own client's case in another county, the trial court did not err in ruling that the witness was unavailable to appear at trial and in permitting the attorney's testimony to be presented by deposition. Jet Air, Inc. v. EPPS Air Serv., Inc., 194 Ga. App. 829, 392 S.E.2d 245, cert. denied, 194 Ga. App. 911, 392 S.E.2d 245 (1990).

- As an attorney is an officer of the court, whose statement to the court in the attorney's place is considered prima facie true and needs no further verification unless required by the court or the opposing party, use of the deposition based on the statement of an attorney in the attorney's place that the witness was unavailable for testimony was proper. Sheffield v. Lockhart, 151 Ga. App. 551, 260 S.E.2d 416 (1979); Wright v. Millines, 217 Ga. App. 464, 458 S.E.2d 488 (1995).

There was no error in allowing the use of a caveator's deposition at trial in place of the caveator's testimony as counsel had made a statement as to the caveator's unavailability due to a medical condition. Odom v. Hughes, 293 Ga. 447, 748 S.E.2d 839 (2013).

- Trial court could properly admit the deposition of a witness who was out-of-state. Lil Champ Food Stores, Inc. v. DOT, 230 Ga. App. 715, 498 S.E.2d 94 (1998).

In a medical malpractice action against a pediatrician and a hospital, when the pediatrician settled and the hospital did not, the deposition of an out of state expert on the pediatrician's witness list was properly admitted by the trial court, even though the deposition was taken for discovery purposes only, as the witness was unavailable, under O.C.G.A. § 9-11-32(a)(3)(B), because the witness resided out of state, and the admission of the witness's deposition was within the trial court's discretion. Gill v. Spivey, 264 Ga. App. 723, 592 S.E.2d 132 (2003).

- Refusal of the probate court to find that the nature of a physician's occupation would cause manifest inconvenience to others if the physician's attendance as a witness was required was not error; even though the evidence would have authorized such finding, it was not required. Collins v. Kiah, 218 Ga. App. 484, 462 S.E.2d 158 (1995).

- When a ruling of the trial court on the introduction of a deposition showed that no discretion was exercised and the judgment rendered was based upon an erroneous view of the law, a new trial would be granted. Watson v. Elberton-Elbert County Hosp. Auth., 229 Ga. 26, 189 S.E.2d 66 (1972).

- Testimony of deponent obtained through discovery does not belong to or bind either party until such testimony is introduced in evidence at the trial of the case, whereupon the party introducing the testimony adopts the testimony and is bound by the testimony. Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284, 193 S.E.2d 166 (1972).

- Specific and limited provision for admission into evidence in subsequent trial of depositions taken in prior action was made by paragraph (a)(5) of O.C.G.A. § 9-11-32. All other issues relating to the admission into evidence in a subsequent trial of testimony taken in connection with a prior action must be resolved under former O.C.G.A. § 24-3-10 (see now O.C.G.A. § 24-8-804). Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981).

Appellant's failure to raise before the trial court the appellant's arguments for admissibility predicated on O.C.G.A. §§ 9-11-32(a)(2) and24-3-31 precluded appellate review of those arguments suggesting that deposition testimony given by the sheriff and the sheriff's representatives in unrelated prior actions should be admitted. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901, 625 S.E.2d 46 (2005).

- Although O.C.G.A. § 9-11-32 plainly requires a finding of unavailability before the deposition of a witness, whether or not a party, may be used for any purpose, the violation of this mandate does not demand reversal if the testimony of the witness is not material to the verdict rendered by the jury. Elder v. Metropolitan Atlanta Rapid Transit Auth., 160 Ga. App. 78, 286 S.E.2d 315 (1981), overruled on other grounds, Chadwick v. Miller, 169 Ga. App. 338, 312 S.E.2d 835 (1983).

- It would be a fraud on the court to permit a party to voluntarily absent oneself from the party's own trial and then for any reason claim the party's deposition could not be used. Fisher Scientific Co. v. McCorkle, 163 Ga. App. 613, 295 S.E.2d 366 (1982).

- Trial court did not err in allowing only a portion of a video deposition to be used because under O.C.G.A. § 9-11-32 the individual who gave the deposition was both an adverse party and an officer of the corporation named in the promissory estoppel lawsuit. Rental Equip. Group, LLC v. Maci, LLC, 263 Ga. App. 155, 587 S.E.2d 364 (2003).

- Witness's deposition testimony that as a result of a recent tonsillectomy the witness was very weak and physically unable to attend the trial was sufficient to show that the witness was unavailable due to illness or infirmity under O.C.G.A. § 9-11-32, and the trial court did not err in admitting the witness's deposition at trial. Rescigno v. Vesali, 306 Ga. App. 610, 703 S.E.2d 65 (2010).

It is within the discretion of the court to allow a deposition to be read even though the party is present and testifies. Parker & Co. v. Glenn, 90 Ga. App. 500, 83 S.E.2d 263 (1954) (decided under former Code 1933, § 38-2103).

- When depositions of a witness are taken for use in a cause then pending, at trial the deposition so taken may, in the discretion of the court, be read in evidence notwithstanding the presence of the witness at the trial. Western & A.R.R. v. Bussey, 95 Ga. 584, 23 S.E. 207 (1894); Southern Ry. v. Dickson, 138 Ga. 371, 75 S.E. 462 (1912).

- Although the deposition of the former employer's agent in response to the former employee's request for a deposition under O.C.G.A. § 9-11-30(b)(6) was admissible under O.C.G.A. § 9-11-32(a), because the agent had no direct personal knowledge of the employee's contract or the contract's termination, the agent's deposition testimony had no probative value as to the matters for which the testimony was proffered, specifically for rebuttal and impeachment purposes; thus, it was harmless error to exclude the testimony. Griffin v. Greene County Hosp. Auth., 260 Ga. App. 122, 578 S.E.2d 913 (2003).

- In a medical malpractice case, the patient's survivor could not use the deposition of a surgery center's representative taken under O.C.G.A. § 9-11-30(b)(6) to establish the doctor's standard of care without regard to O.C.G.A. § 24-7-702, governing the admissibility of expert testimony; O.C.G.A. § 9-11-32(a) allowed the use of such depositions for any purpose but required application of the rules of evidence. Yugueros v. Robles, 300 Ga. 58, 793 S.E.2d 42 (2016).

- Rule that interrogatories and depositions should not be taken into the jury room does not apply to documents which are introduced as documents and not orally, under the best evidence rule. Dunagan v. Elder, 154 Ga. App. 728, 270 S.E.2d 18 (1980) (decided under former Code 1933, § 38-2101).

- Trial court did not err pursuant to O.C.G.A. § 9-11-32 by admitting the testimony of a plumbing contractor by way of deposition because the contractor was imprisoned at the time of the trial. Furthermore, the opposing party had the opportunity to cross-examine the contractor at the deposition. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010).

Cross-Examination

Excluding deposition testimony adduced on cross-examination.

- There is no specific basis for excluding deposition testimony adduced on cross-examination. Colbert Co. v. Newsom, 125 Ga. App. 571, 188 S.E.2d 266 (1972).

- Allowing plaintiff's attorney to read into evidence, along with the attorney's own examination of deponent, those portions of proffered deposition consisting of examination of the witness by the defendant's attorney did not abridge the defendant's right to cross-examine. Kamman v. Seabolt, 149 Ga. App. 167, 253 S.E.2d 842 (1979).

- When deponent spent considerable time on the witness stand and was cross-examined extensively and thoroughly by opposing counsel, including the use of the deponent's deposition for impeachment purposes, the court's refusal to admit the deposition as evidence constituted at most harmless error. Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 305 S.E.2d 864 (1983).

- When the defendant was cross-examined by deposition and later testified on the trial, the deposition was admissible for impeachment purposes, there being some variance between the testimony contained in the deposition and that delivered on the trial. Parker & Co. v. Glenn, 90 Ga. App. 500, 83 S.E.2d 263 (1954) (decided under former Code 1933, § 38-2103).

When it appears that the witness was questioned about the depositions while the witness was on the stand, and that the witness testified, as to certain matters, somewhat at variance from the depositions, it was not an abuse of discretion for the court to allow the depositions in evidence for the purpose of impeachment. Parker & Co. v. Glenn, 90 Ga. App. 500, 83 S.E.2d 263 (1954) (decided under former Code 1933, § 38-2103).

- Trial court was authorized to find that, by insisting that a part of a deposition which contained a reference to the supposed excellence of the former employee of the defendant be read to the jury, the defendant had made the witness the defendant's own, when the portion of the deposition was not relevant to those parts of the deposition submitted by the plaintiff. Orkin Exterminating Co. v. Carder, 258 Ga. App. 796, 575 S.E.2d 664 (2002)(Unpublished).

Errors and Objections

Prompt notification of defect in notice of deposition.

- While proper notice is required for taking a deposition, the opposing party must promptly notify the party giving the notice if the notice is technically deficient in any manner. Republic Nat'l Bank v. Hodgson, 124 Ga. App. 11, 183 S.E.2d 4 (1971).

- Rationale of requiring that written objection to a deficient notice of a deposition be made promptly, failing which the error or irregularity in the notice is deemed to have been waived, is the same as that for the requirement that objections to the evidence be made as of the time of taking the deposition. Republic Nat'l Bank v. Hodgson, 124 Ga. App. 11, 183 S.E.2d 4 (1971).

Raising an issue on appeal is not "reasonable promptness" as required by paragraph (d)(4) of this section. Building Assocs. v. Crider, 141 Ga. App. 825, 234 S.E.2d 666 (1977).

- Error or irregularity in the taking of a deposition in connection with a workers' compensation claim which might have been obviated, removed, or cured is waived unless seasonable objection thereto is made at the taking of the deposition. Royal Globe Indem. Co. v. Thompson, 123 Ga. App. 268, 180 S.E.2d 576 (1971).

When no objection was made during the deposition to the form of the question or to the responsiveness of the answer, although any such alleged error could have been obviated, removed, or cured if promptly presented, failure to so object constitutes a waiver. Haynes v. McCambry, 203 Ga. App. 464, 416 S.E.2d 893 (1992).

- In appeals filed by both former spouses from a trial court order modifying visitation and child support provisions in their final judgment and decree of divorce, they waived their claims that the trial court abused the court's discretion in conducting the final hearing by taking most testimony only by deposition and restricting the amount of time that each party could testify under O.C.G.A. § 9-11-32(a)(4); the record was devoid of objections by either party to the trial court's announced procedure for conducting the final hearing, either at the hearing or in response to the trial court's written orders setting forth the process. Facey v. Facey, 281 Ga. 367, 638 S.E.2d 273 (2006).

- Trial court did not err in sustaining an objection raised at trial as to the competency of plaintiff husband to testify regarding an oral contract with the plaintiff's deceased wife, despite the plaintiff's contention that the issue of the plaintiff's competency to testify was waived by the defendants by the taking of a deposition since the deposition itself showed that the parties reserved the right to object to the evidence when presented at trial. Rigby v. Powell, 236 Ga. 687, 225 S.E.2d 48 (1976).

- Party's failure to object to notice of intent to take the party's deposition on the ground that the case was in default would not of itself be sufficient to reinstate the case. Minnesota Mut. Life Ins. Co. v. Love, 120 Ga. App. 502, 171 S.E.2d 361 (1969).

- If the plaintiff had objected during the deposition to the absence of proof of the witness's competency to testify as an expert, defense counsel might have been able to cure this ground of objection by proof of the witness's qualifications; since the plaintiff did not, the plaintiff waived the right to raise this objection under subparagraph (d)(3)(A) of O.C.G.A. § 9-11-32. Andean Motor Co. v. Mulkey, 251 Ga. 32, 302 S.E.2d 550 (1983); Jones v. Scarborough, 194 Ga. App. 468, 390 S.E.2d 674 (1990).

- Objection based on lack of court order allowing videotaping of deposition was waived since no objection to the videotaping was raised prior to trial. Even if the objection was timely made at trial, any error in the admission of the videotaped deposition was harmless because the videotaping was conducted in substantial compliance with required technical conditions and procedures. DuBois v. Ray, 177 Ga. App. 349, 339 S.E.2d 605 (1985).

- In a medical malpractice case, the trial court committed reversible error by finding that the patient waived a hearsay objection as to a defense pathologist's deposition testimony because the patient had the right to object to the testimony at trial and the testimony was inadmissible hearsay entitling the patient to a new trial since it was not harmless error in that the evidence was critical in the case because the evidence directly addressed the core disputed issue of whether the clinic's neurosurgeon left an excessive amount of cotton in the patient's brain. Thomas v. Emory Clinic, Inc., 321 Ga. App. 457, 739 S.E.2d 138 (2013).

- Objections which must be made at the taking of depositions or will otherwise be considered to be waived are restricted to those affecting the formal development of the evidence. Hamilton v. Pulaski County, 86 Ga. App. 705, 72 S.E.2d 487 (1952) (decided under former Code 1933, § 38-2304).

- Objections as to competency and relevance of evidence need not be made at the taking of depositions. Hamilton v. Pulaski County, 86 Ga. App. 705, 72 S.E.2d 487 (1952) (decided under former Code 1933, § 38-2304).

Objections which should be made at taking depositions are formal objections to the testimony or to the competency of the witness, so far as are then known to the objecting party, and the fact that at the taking of the deposition the party did not make objection to the testimony did not prevent the party at trial from objecting to the testimony upon substantial grounds, such as irrelevancy or incompetency, as to which the law does not require objection to be made at the time the witness is offered. Georgia Ry. & Elec. Co. v. Bailey, 9 Ga. App. 106, 70 S.E. 607 (1911).

When depositions of a witness were taken and certain objections to parts of the testimony were made and noted, this did not preclude the party against whom the evidence was offered from objecting, at trial, to certain parts of the testimony on the ground that they were hearsay and secondary in character, although such objections were not noted on the examination. Erk v. Simpson, 137 Ga. 608, 73 S.E. 1065 (1912).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Depositions and Discovery, § 104 et seq.

- 26B C.J.S., Depositions, §§ 19, 116 et seq., 142. 27 C.J.S., Discovery, §§ 12, 13, 44, 94-97, 115-117. 35A C.J.S., Federal Civil Procedure, §§ 592 et seq., 607 et seq, 631, 632, 634, 647, 648, 666 et seq., 702.

- Pleadings, depositions, testimony, or statements in court as constituting a sufficient writing within the statute of frauds, 22 A.L.R. 735.

Rule against conviction of perjury upon contradictory statements as affected by defendant's admission in second statement, 25 A.L.R. 416.

Effect of prosecuting attorney's consent to taking of deposition without complying with conditions prescribed by statute, 27 A.L.R. 1041.

Making copies of record or writings part of deposition, 59 A.L.R. 530.

Introduction of deposition by party other than the one at whose instance it was taken, 134 A.L.R. 212.

Sufficiency of showing of grounds for admission of deposition in criminal case, 44 A.L.R.2d 768.

Propriety and effect of jury in civil case taking depositions to jury room during deliberations, 57 A.L.R.2d 1011.

Identity of subject matter or of issues as condition of admissibility in civil case of testimony or deposition in former proceeding of witness not now available, 70 A.L.R.2d 494.

Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection, 73 A.L.R.2d 12.

Propriety of answer to interrogatory merely referring to other documents or sources of information, 96 A.L.R.2d 598.

Admissibility in evidence of deposition as against one not a party at time of its taking, 4 A.L.R.3d 1075.

Party's right to use, as evidence in civil trial, his own testimony given upon interrogatories or depositions taken by opponent, 13 A.L.R.3d 1312.

Discovery, in products liability case, of defendant's knowledge as to injury to or complaints by others than plaintiff, related to product, 20 A.L.R.3d 1430.

Taking deposition or serving interrogatories in civil case as waiver of incompetency of witness, 23 A.L.R.3d 389.

Use, in federal criminal prosecution, of deposition of absent witness taken in foreign country, as affected by Federal Rule of Criminal Procedure 15(b) and (d) requiring presence of accused and that deposition be taken in manner provided in civil actions, 105 A.L.R. Fed. 537.