Depositions are primarily a discovery tool. When it comes to trial, live witness testimony is “more desirable,” Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 690 (1992), and Rule of Civil Procedure 43 states that, “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.” In “sharply limited” circumstances, however, deposition testimony may be used at trial, Warren v. City of Asheville, 74 N.C. App. 402, 408 (1985), and Rule 32 of the North Carolina Rules of Civil Procedure sets out (most of) those circumstances.
Under Rule 32, deposition testimony may be used at trial if it meets three criteria:
- It is being used against a party who was present or represented at or had reasonable notice of the deposition;
- It falls within one of the categories in Rule 32(a)(1) through (a)(4); and
- It is admissible under the Rules of Evidence (applied as though the witness were present and testifying).