Academic journal article Melbourne University Law Review

The United States Deposition - Time for Adoption in Australian Civil Procedure?

Academic journal article Melbourne University Law Review

The United States Deposition - Time for Adoption in Australian Civil Procedure?

Article excerpt

[The deposition is the most important discovery method in the United States legal system. The deposition promotes the efficient attainment of justice by providing better information than may be obtained through reliance upon document discovery alone, facilitating settlement and narrowing the issues for trial. However, the deposition can also be costly and subject to abuse. This article outlines the US court rules governing the deposition and explains the advantages and disadvantages of the deposition. The article then considers whether the US-style deposition should be adopted in Australia and the potential ramifications of adoption. Particular consideration is given to how to obtain the forensic advantages of the deposition while containing costs, and the impact of adoption on Australian civil procedure and legal culture more generally.]


I   Introduction
II  An Overview of Deposition Rules in the United States
      A Who May Be Examined
      B Procedural Requirements
      C Examination and Objections
III Advantages of the Deposition
      A Discovery
      B Preservation of Testimony
      C Case Development and Assessment
IV  Disadvantages of the Deposition
      A Cost and Discovery Abuse
      B Privatisation of Dispute Resolution
V   Time to Adopt the US-Style Deposition in Australia?
VI  Conclusion


The United States-style deposition has been raised, or at least alluded to, by the Australian Law Reform Commission ('ALRC'), the Victorian Law Reform Commission, the Law Council of Australia and the litigation funder IMF (Australia) Ltd as a key feature of the US legal system that could be adopted in Australia. (1) The idea of importing litigation techniques from the US may surprise those that associate excessive litigiousness with the US legal system and wish to avoid that outcome in Australia. (2) However, the study of comparative civil procedure offers an opportunity for law reform to improve the operation of the home legal system. (3) As the deposition is the most important discovery device in the US legal system, as well as a central part of settlement considerations and trial tactics, (4) an examination of its merits is clearly warranted. This is especially so because Australian law only relies on specialised varieties of deposition in areas such as regulatory investigations.

This article examines the use of the deposition in the US legal system from the perspective of promoting efficiency in the Australian legal system, as the administration of justice in the 21st century is judged not just by the quality of decisions, but also by how efficiently justice is provided. (5) This article provides an overview of how the deposition operates in the US, considers the advantages and disadvantages of the deposition by reference to both US and Australian experiences, and then considers how those advantages and disadvantages affect the case for the adoption of the deposition in Australian civil procedure.


The rules governing the deposition at the federal level in the US are set out in the Federal Rules of Civil Procedure 2005 (US) ('FRCP'). (6)

A Who May Be Examined

In general, a party may take the testimony of any person, including a party, by oral deposition without leave of the court. (7) Consequently, the range of persons who may be deposed is wide and includes any witnesses, such as expert witnesses and employees of a party (for example, document custodians). (8) The attendance of witnesses may be compelled by subpoena. (9) There are some exceptions to the general rule where leave of the court or the stipulation of the parties is required. (10) They include when a proposed deposition would result in more than 10 depositions being taken by a particular party or where the person to be examined has already been deposed in the case. (11)

It is also possible to depose a corporation, partnership, association or government agency. …

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