The Origins of the Oral Deposition Under the Federal Rules: Who's in Charge?

Abstract

This paper traces the origins of the oral deposition in the Federal Rules of Civil Procedure (“Federal Rules”) with an emphasis on the role of the officer in charge of the deposition. In Parts II and III, I document the origins of the deposition, drawing on published sources. In Parts IV and V, I draw upon unpublished sources regarding the 1930s Advisory Committee’s decision not to provide for a judicial officer who would have the authority to rule on the admissibility of evidence during the deposition. That decision was an important, yet overlooked, element in the shaping of modern American civil procedure, including the displacement of civil trial by pretrial discovery. A striking attribute of the modern American deposition is that opposing counsel conduct the questioning in the absence of a judicial officer. The Advisory Committee that drafted the 1938 Federal Rules considered a proposal to provide deponents (both party witnesses and non-party witnesses) with the option of requesting a master to rule on the admissibility of evidence at the pretrial examination. According to archival sources, members of the Advisory Committee concluded that the systemic disadvantages of that proposal outweighed the advantages. I describe the historical origins of three salient features of the deposition: the near-absence of the rules of evidence; the presence of an “officer in charge” who has no power the rule on the admissibility of evidence; and the breadth of the permitted scope of inquiry. I discuss why the term “officer” is misleading: the examination is conducted entirely by adverse parties in the absence of a judge or a judge-like figure. The officer in charge is simply a stenographer or notary public who swears in the deponent and records the testimony; he or she exercises no adjudicatory function.