Fun Times with Rule 32

I rarely see anyone use Rule 32(a)(2), then it came up twice in one week for me and a reader in different cases. However, it underscores the importance of good deposition planning. Nevada’s rule states:

(a) 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:

(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 Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

This rule can be quite handy in the right context. For me, the deposition the adverse party wanted to use was of the former president of a defunct company. However the deposition did not satisfy Rule 32(a)(2)’s requirements 1) The president himself was not a party; 2) when the deposition was taken, the company no longer existed and he was not the president “at the time of taking the deposition.” 3) The deposition was taken in his individual capacity. No 30(b)(6) deposition of the company was ever requested or taken. I was prepared to argue the deposition was inadmissible, but we never reached that point.

Who is “an officer, director, or managing agent?” Montana addressed this question once in the context of a “managing agent” when applying its rule that was substantively identical to Nevada’s. Determining whether the witness was a “managing agent” required a court to consider several factors, “including the individual’s right of general control, authority, and judgment within his department; whether the interests of the individual are identified to be those of the [entity]; and whether any person of higher authority possesses knowledge about the matters at issue.”[1]

In this case, the depositions offered were those of the chief of Materials Bureau, head of Location Road Design Section, chief of the Preconstruction Bureau, and assistant supervisor of Geology Section. We find the deposition testimony shows that these jobs, with the possible exception of the latter one, entail sufficient supervisory responsibility to place these individuals within the status of managing agents for the State. One might question the managerial status of assistant supervisor of Geology Section, but we need only focus on the deposition of the chief of Materials Bureau.

We find the deposition testimony of the chief of Materials Bureau to be useful evidence on the issue of justifiable reliance. The witness’s statements acknowledge that the State is aware contractors rely on State estimates in preparing their bids.[2]

Montana also concluded its Rule 32(a)(2) contained no provision “which requires a finding of unavailability of the witness or that notice was given of the intended use of a deposition at trial.”

[1] Clark Bros. Contractors v. State, 710 P.2d 41, 43 (Mont. 1985).
[2] Id.