Legal Memorandum: Second Deposition of a Witness in VT

Issue: Under the law of Vermont, is it permissible for a party to take a second deposition of a witness?

No Vermont authority has spoken directly to the issue of whether a second deposition of the same witness may be taken as a trial deposition*FN1, or indeed, for any purpose at all.  There are, of course, Vermont rules that are at least indirectly applicable.  For example, V.R.C.P. 32 provides in part:

(a) 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 due notice thereof, in accordance with any of the following provisions:

. . .

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that the witness . . . (E) is absent from the hearing and the proponent of the deposition has been unable to procure the witness’ attendance by process or other reasonable means.  A deponent is not unavailable as a witness if the exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing the witness from attending or testifying.

See also Nichols v. Brattleboro Retreat, 2009 VT […]