Part V: Discovery · Last amended 2006 · Last verified July 16, 2026
In one sentenceRule 15-6-32 sets out when a deposition taken earlier in a case may be read into evidence at trial or a hearing, lists the grounds for using a deposition from an unavailable witness, and explains which objections are preserved and which are waived if not raised in time.
(a)Use of deposition against party. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any one of the following provisions:
(1)Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the South Dakota Rules of Evidence.
(2)The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under § 15-6-30(b)(6) or § 15-6-31(a) to testify on behalf of a public or private corporation, limited liability company, partnership, association or governmental agency which is a party may be used by an adverse party for any purpose.
(3)The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(A)that the witness is dead; or
(B)that the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(C)that the witness is unable to attend or testify because of age, illness, infirmity, imprisonment, or occupational commitments; if the deposition was taken for purposes of use at the trial in the place of the witness’ personal attendance because of such commitments; or
(D)that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(E)Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
(4)If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
(b)Objections to admissibility. Subject to the provisions of § 15-6-28(b) and subdivision 15-6-32(d)(3), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(c)Effect of taking or using deposition. A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision 15-6-32(a)(2). At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.
(1)As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
(2)As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(3)As to taking of deposition.
(A)Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(B)Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
(C)Objections to the form of written questions submitted under § 15-6-31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized.
(4)As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under §§ 15-6-30 and 15-6-31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
Plain-English Summary
Rule 15-6-32 governs when a deposition taken during discovery can be used as evidence later in the case. If a party was present, represented, or had reasonable notice when the deposition was taken, any part of it may be used against that party at trial or a hearing, so long as it would be admissible under the rules of evidence had the witness been on the stand. Any deposition may be used to contradict or impeach the deponent, or for any other purpose the South Dakota Rules of Evidence allow. The deposition of a party, or of an officer, director, managing agent, or designated representative of a corporate or governmental party, may be used by an adverse party for any purpose at all. And the deposition of any witness, party or not, may be used by any party for any purpose once the court finds one of several things true: the witness has died, is out of state through no fault of the party offering the deposition, cannot attend or testify because of age, illness, infirmity, imprisonment, or occupational commitments, could not be brought in by subpoena, or that exceptional circumstances make using the deposition the fair course given the importance of live testimony.
The rule also protects against a one-sided picture. If a party introduces only part of a deposition, the opposing party may require that any other part be introduced too, if fairness calls for reading it alongside the excerpt offered, and any party may introduce still other parts. A deposition lawfully taken in an earlier, dismissed action involving the same subject matter and the same parties or their successors can carry over into a later action on that same subject.
Once a deposition is in play, Rule 15-6-32 addresses what using it does and does not do. Taking someone’s deposition does not make that person your own witness. But introducing the deposition for a purpose other than impeachment does make the deponent the introducing party’s witness, except when an adverse party uses a party or corporate-representative deposition under the rule’s second ground. Either side may rebut relevant evidence a deposition contains, no matter who introduced it. Objections to receiving a deposition in evidence may still be raised at trial for any reason that would exclude the testimony if the witness were live, subject to the rule’s own provisions on disqualified officers and on the timing of objections to a deposition’s taking.
The rule’s last part sorts objections into those that must be raised early and those preserved regardless. Objections to the notice of a deposition are waived unless promptly served in writing. Objections to the disqualification of the officer taking the deposition are waived unless raised before the deposition begins or as soon as the disqualification is discovered. Objections to a witness’s competency, or to the relevance or materiality of testimony, survive even without a contemporaneous objection, unless the problem could have been fixed had someone raised it at the time. But errors in how the oral examination itself was conducted, in the form of questions or answers, or in the oath, are waived unless raised at the deposition, since those problems are the kind a prompt objection could have cured. Objections to written cross-questions must be served within the time set for later questions and within five days after the last authorized questions. And errors in how the deposition was transcribed, signed, certified, or filed are waived unless a motion to suppress follows with reasonable promptness after the defect comes to light or should have been discovered.
Frequently Asked Questions
Can I use a deposition transcript at trial instead of calling the witness in a South Dakota case?
Yes, in specific situations. Rule 15-6-32 lets any party use a witness’s deposition for any purpose if the court finds the witness has died, is out of state without the offering party’s fault, cannot attend because of age, illness, infirmity, imprisonment, or occupational commitments, could not be reached by subpoena, or that exceptional circumstances justify it.
Can I use my opponent’s own deposition against them for any purpose I want?
Yes. Rule 15-6-32 allows the deposition of a party, or of an officer, director, managing agent, or designated representative of a corporate or governmental party, to be used by an adverse party for any purpose, not just impeachment.
If the other side only reads part of a deposition into evidence, can I make them include more?
Yes. Under Rule 15-6-32, if only part of a deposition is offered, you may require the offering party to introduce any other part that in fairness should be considered alongside it, and you may introduce additional parts yourself.
Does taking someone’s deposition make that person my witness at trial?
No, not by itself. Rule 15-6-32 says taking a person’s deposition does not make them your witness. Introducing the deposition later for a purpose other than impeachment does make the deponent the introducing party’s witness, with an exception for an adverse party using a party or corporate-representative deposition.
What happens if I don’t object to how a deposition was taken until the trial?
It depends on the type of error. Rule 15-6-32 waives objections to notice, to the officer’s disqualification, to the manner or form of the oral examination, and to written cross-questions unless raised promptly at the time. But objections to a witness’s competency or to the relevance or materiality of testimony survive to trial unless the problem could have been fixed by an earlier objection.
(b)SDC 1939 & Supp 1960, § 36.0508; SD RCP, Rule 26 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(e); Supreme Court Rule 76-3, § 6.
(c)SDC 1939 & Supp 1960, § 36.0509; SD RCP, Rule 26 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(f); Supreme Court Rule 76-3, § 6.
(d)SDC 1939 & Supp 1960, §§ 36.0507, 36.0508; SD RCP, Rules 32 (a) to 32 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, §§ 15-6-32(a) to 15-6-32(c); Supreme Court Rule 76-3, § 6.
Source & verification. Rule text and History are
reproduced verbatim from the South Dakota Codified Laws, published by the
South Dakota Legislative Research Council. Last verified July 16, 2026.
· Official source
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