Legal Memorandum: Trial Deposition in VT

Issue: Under the law of Vermont, is it permissible for a party to take a trial deposition after the discovery cutoff date?

Somewhat more instructive are the federal cases that address whether a party should be allowed to take a trial deposition after the discovery cutoff date.  Although, again, cases in the area seem to go both ways, it appears a majority hold that because the primary purpose of a trial deposition is to provide testimony that can be used at trial, rather than to discover information, the discovery deadline should not apply to a trial deposition.  RLS Assoc. LLC v. United Bank of Kuwait PLC,  at *6 (S.D.N.Y. March 11, 2005) (“the majority of courts considering this issue have made what can only be described as a federal common law distinction between ‘discovery depositions’ and ‘trial depositions’ (or alternatively, ‘preservation depositions’), and have held the latter category permissible even after the discovery deadline had passed.”).  Compare Charles v. Wade, 665 F.2d 661, 663 (5th Cir. 1982) (trial court abused its discretion in refusing to permit deposition despite expiration of discovery period and where plaintiff knew what witness had to say and was seeking means for introducing his testimony at trial and deposition, and where permitting deposition would have resulted in no prejudice); Spangler v. Sears, Roebuck & Co., 138 F.R.D. 122, 123 (S.D. Ind. 1991) (even though discovery had closed “a party may still prepare for trial by taking the depositions of witnesses whose unavailability for trial is anticipated”); Odell v. Burlington No. RR Co., 151 F.R.D. 661, 663, (D. Colo. 1993) (holding that trial depositions are not discovery depositions); […]