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  1. #1
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    Dec 2011
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    Default Use of Depositions to Support Motions

    My question involves court procedures for the state of: Florida

    I don't know the answer to this issue and hoping someone can help.

    Civil case, defamation plaintiff pro se. Defendant media Summary Judgment.

    Defendant files motion with a bunch of different defenses. Plaintiff wins the important issues. Defendant also threw in "truth" as a defense in one page of about 45.

    Defendant deposes plaintiff over two days. Plaintiff can't afford two day deposition transcript and doesn't see the point in spending 1200 bucks on it. In addition, plaintiff agrees another party's attorney can videotape the deposition with the condition a copy be provided. Copy is not provided before summary judgment, and is now only being provided due to court order.

    The case is centered on a disputed document which is stolen property, 30 years old from another state. It makes certain statements that are legally impossible. There are motions in limine to exclude it and for a protective order, which the court will hear in June.

    Defendant's attorney files plaintiff transcript (or part of it) with the court but does not serve any on the plaintiff.

    Plaintiff does not have the transcript and has no idea defendant is going to argue truth to the judge who can't actually weigh any evidence, but has never heard a defamation case before. Defendant argues that plaintiff admitted to truth of the defamation in the deposition (after dozens of questions on it) and out of any context. Only admitted to something in the document, which is not true. Other answers make that clear.

    Judge ignores affidavits in the record saying the document is false and exactly why. Judge has not heard the motions to exclude the document which is hearsay, stolen property, admits to major constitutional violations and is confidential as a matter of state law, etc.

    Thus, how can the court even admit a deposition question/answer about a document that is likely to be excluded and which it has not yet ruled upon motions concerning that document?

    The court then decided that the defamation was in fact true and granted the media defendant summary judgment.

    The questions are, can the defendant use a deposition the plaintiff does not have and was not given a copy of relevant pages?
    Especially when co-defendant's attorney failed to provide video?

    Can the defendant use the answer to one question out of context of all the others to "prove" truth when it is controverted by affidavits previously filed in the case?

    A Motion for Reconsideration/Motion for Rehearing has been filed, so this is relevant and will be for an appeal.

    There is already a spin off appeal and a few individual defendants so the entire case is not over.

  2. #2
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    Default Re: Use of Depositions to Support Motions

    You had the right to ask the court to examine the quoted passages in what you believed to be their larger context. If you chose not to do that, you waived the opportunity.

    It sounds less like the "Plaintiff can't afford two day deposition transcript" and more like the plaintiff couldn't afford not to purchase a copy.

    I can't comment on whether the entire transcript was made part of the lower court record such that additional passages might be used to support an appeal, whether you might succeed in a motion for reconsideration or rehearing (if still timely) if you presented what you contend is the full context of the statement, or whether you would need to take additional steps to make the larger transcript part of the record on appeal.

  3. #3
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    Default Re: Use of Deposition, Surprise

    Quote Quoting Conrad Hunter
    View Post
    ...Defendant argues that plaintiff admitted to truth of the defamation in the deposition (after dozens of questions on it) and out of any context. Only admitted to something in the document, which is not true. Other answers make that clear.
    The questions are, can the defendant use a deposition the plaintiff does not have and was not given a copy of relevant pages?
    Can the defendant use the answer to one question out of context of all the others to "prove" truth when it is controverted by affidavits previously filed in the case?
    Yes, but...
    Did you timely object based upon FRE 90.108 at the time only part of the deposition was presented, and did the judge rule on your objection?
    If you did not object or failed to get a ruling on the objection, you may have waived your right to object now.

    Florida Rule of Evidence 90.108 Introduction of related writings or recorded statements.
    (1) When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.

  4. #4
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    Default Re: Use of Deposition, Surprise

    I do not know what the judge said about the objection. But the real issue is that the record had other materials that showed the allaged statement was contradicted. It was only one piece of evidence. The statement was about a document that is not admissible and the court has scheduled a hearing to determine its admissibility.
    I don't understand how a question about a statement in a 30 year old document is admissible before it is determined if the document is even admissible. There is also a motion for a protective order to prevent its use in any way.

    The cause of action is also defamation and the judge can only rule on matters of law, he can't decide which piece of evidence has more weight or credibility or decide which piece of evidence he wants to believe. Those are questions for the jury. But argung that is not the point.

    The motion for reconsideration/rehearing was timely filed and includes the objections as well as other grounds.

    The question was about a document that has not been admitted as evidence. It is double hearsay, 30 years old and is stolen property. It is not public record, but if it were, it would still not be admissible under exceptions to the hearsay rule. Of course, none of this has been decided yet as the motions are all scheduled for a hearing in June. It is pretty complicated. The biggest problem is that the terminology of the document is all wrong and what it says is legally impossible and creates a false impression. So the truth and an admission of what the document says are two completely different things. The admission involved a statement in the document. Yes it is there, but it is not true.

    Keep in mind that this was a motion hearing. The moving party's attorney went first and made argument including the claim at the end of what the plaintiff alleged said in the deposition. The plaintiff then presented his arguments and objected to the use of the deposition statement out of context at the end. But neither argument was testimony, they were the attorney arguments. The claim of truth was a minor part of a big motion that raised a number of legal arguments concerning 770.01 notice, public figure, public purpose and other defenses.
    The plaintiff didn't have any idea the judge would or could dismiss the entire case based on one alleged deposition statement (which was about the content of the document, not is truth) when it is contradicted by multiple other pieces of evidence. This was a defamation case with a jury demand, but there isn't any point in arguing defamation law here.

    What I really wanted to find out is if the defendant was obligated to serve the relevant deposition pages or was able to only file them with the court (and also stall delivery of the video deposition and get by with it). I read somewhere they are to be served along with the affidavits and other evidence in support of the motion for summary judgment but can't find it.

  5. #5
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    Default Re: Use of Deposition, Surprise

    I should point out again that this was a motion for summary judgment. The deposition or part of it (got to go to the clerk's office and look it up) was filed with the clerk. There was no evidence at the hearing. It was just the attorney making oral argument. The media defendant attorney didn't even identify the page or paragraph the alleged statement was even on. The attorney couldn't testify to anything. After the attorney arguments, the court issued its decision verbally. The defendant wrote a proposed order and the court signed it.

  6. #6
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    Default Re: Use of Deposition, Surprise

    I hope I am not out of line by replying. I searched through the forum and found no guidelines as to whom could and could not reply.

    It is my understanding that anything entered into evidence must be supplied to the opposition prior to it's submission to the court. This enables preparation for any objection. An objection could have been raised on the grounds that the evidence was not disclosed in a timely manner. There are "Rules of Court" that must be followed but if no-one objects then the court can not make a ruling on the issue.

  7. #7
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    Default Re: Use of Deposition, Surprise

    Anyone can comment, hopefully intelligently and with some useful information such as you did. Thank you.

    I have read many Florida cases and remember reading that though I don't remember where.

    I objected to them not serving the relevant part of the transcript in my Response brief, during oral argument and in my Motion for Rehearing. I trust that saves my objection for my appeal. The judge made so many errors but you never know what the appeals court is going to rule on and once they rule on one thing, they don't bother ruling on anything else.

    All they did was send me a notice of filing the transcript with the clerk. They filed a bunch of affidavits but none of them made any difference and were never even mentioned in oral. The point of the hearing from what was filed were the legal issues that most of the briefing was on: adequacy of the 770 notices, if the plaintiff was a limited purpose public figure, if the defamation was about a public or private matter, etc.

    I think the fix was in, in a sense. The newspaper defendant actually already had a news story written and typeset about them winning and she showed it to the other defendants. My eyesight is good, I knew exactly what it was. I am sure the judge wants to get out of the case as soon as possible as he is from a city 160 miles away. All the judges in my county have been disqualified and the Chief Justice of the Florida Supreme Court appointed a judge from another circuit/county.

    What is funny, one would think he'd talk to the chief judge of the circuit and find out who wanted or was willing to do it, and work it all out. Apparently not. The judge knew nothing about the order from the Supreme Court until one of the defendant's attorneys sent it to his judicial assistant. I thought that was hilarious.

  8. #8
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    Default Re: Use of Deposition, Surprise

    One additional thing.

    There is so much to this situation/case. The alleged question/answer the defendant claimed proved truth was contradicted by a number of pieces of evidence.

    One piece of evidence was attached to the complaint and is a published opinion of the 8th Circuit Court of Appeals. It was also referenced in affidavits and attached as an exhibit thereto.

    This published case proves that the defendant's contention which they claim the deposition supports is not true.
    This opinion is only one piece of evidence of a number that are in the record which proves the defendant's contention is not true.

    There have been no hearings to introduce evidence except the MSJ and I admit I hadn't any idea I would need it or exactly how to get it into the record at that point. (Other than including it as an exhibit with an affidavit.)

    I suppose I will file a Motion for Judicial Notice, unless someone has a better idea. I assume I need to do that so I can argue it for my rehearing, if I get a rehearing.

    Actually, I think it is an exhibit in my deposition, but can't afford the whole thing. Guess I will have to look into getting a portion of it.

  9. #9
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    Default Re: Use of Deposition, Surprise

    I knew there was a rule on this. Read it once but then could not find the exact rule again. Apparently nobody here knows any real Florida evidence law. The anwer is: FRCP 1.310(f)(3)(a)

    I am filing a motion to strike the deposition as defense counsel's actions were deliberate fraud upon the court. I think the court was complict or needs a remedial course in FL rules of civil procedure, but of course will not say that.

    It should also help my motion for rehearing. I find it a little strange that the defendant didn't file a response brief to my motion fighting it. Instead they asked the court to set it for hearing. So is this a hearing to argue about rehearing the MSJ or are they agreeing to rehearing the MSJ? Not sure.

    I also filed a Motion for Judicial Notice for the 8th Circuit opinion which should also support my rehearing on the MSJ.

  10. #10
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    Default Re: Use of Deposition, Surprise

    Quote Quoting Conrad Hunter
    View Post
    I knew there was a rule on this... Apparently nobody here knows any real Florida evidence law. The anwer is: FRCP 1.310(f)(3)(a)...
    ...more like nobody here could cite Florida RCP off-the-cuff without having to look it up, and were unwilling to do your legwork for you

    Quote Quoting Conrad Hunter
    View Post
    ..I am filing a motion to strike the deposition as defense counsel's actions were deliberate fraud upon the court. I think the court was complict or needs a remedial course in FL rules of civil procedure, but of course will not say that.
    It is not fraud but rather ignorance on your part for not knowing enough about FRCP to raise the point or error and object. Most attorneys would have known quickly where to look and would have been all over that rule well before your last hearing, and prepared to object to opposing counsel even before the hearing.

    It is NOT the judges job to be up to speed on all rules of civil procedure.

    It IS the attorneys job to raise any issues with the application of the rules. If a rule is not properly objected to at the time the issue first comes up, it is often waived. Being ignorant of the rule does not excuse that.

    Attorneys often have their rule book in hand ready to show the judge the specific rule they have issue with, and give the judge an opportunity to review it and rule on that.

    Quote Quoting Conrad Hunter
    View Post
    ...So is this a hearing to argue about rehearing the MSJ or are they agreeing to rehearing the MSJ? Not sure.

    I also filed a Motion for Judicial Notice for the 8th Circuit opinion which should also support my rehearing on the MSJ.
    Extremely unlikely they are agreeing to a rehearing on MSJ. Much more likely will argue you waived error by not properly objecting to any procedural issues before or at the last hearing.

    Not sure what you feel a motion for judicial notice will buy you in this instance.

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