Rule 32.Using depositions in court proceedings

Current through January 1, 2025 · Last verified July 8, 2026

In one sentenceRule 32 sets out when and how a deposition can be used at a hearing or trial -- for impeachment, against a party who was present or had notice, for an unavailable witness, or as evidence of a party's own statements -- and lists the objections a party waives by failing to raise them at the right time.

Full Text of Rule 32

Text sizeJump to: (a) (b) (c) (d)

(a) Using depositions.

(1) In general. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:

(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;

(B) it is used to the extent it would be admissible under the West Virginia Rules of Evidence if the deponent were present and testifying; and

(2) Impeachment and other uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the West Virginia Rules of Evidence.

(3) Deposition of party, agent, or designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).

(4) Unavailable witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:

(A) that the witness is dead;

(B) that the witness is out of the state, unless it appears that the witness’s absence was procured by the party offering the deposition;

(D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or

(E) on motion and notice, that exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of live testimony in open court—to permit the deposition to be used.

(5) Limitations on use.

(A) Deposition taken on short notice. A deposition shall not be used against a party who, having received less than 14 days' notice of the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place—and this motion was still pending when the deposition was taken.

(B) Unavailable deponent; party could not obtain an attorney.

A deposition taken without leave of court under the unavailability provision of Rule 30(a)(3) shall not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent it at the deposition.

(6) Using part of a deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.

(7) Substituting a party. Substituting a party under Rule 25 does not affect the right to use a deposition previously taken.

(8) Deposition taken in an earlier action. A deposition lawfully taken and, if required, filed in any federal-or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the West Virginia Rules of Evidence.

(b) Objections to admissibility. Subject to Rules 28(b) and 32(d) (3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.

(c) Form of presentation. Unless the court orders otherwise, a party shall provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party’s request, deposition testimony offered in a jury trial for any purpose other than impeachment shall be presented in nontranscript form, if available, unless the court for good cause orders otherwise.

(d) Waiver of objections.

(1) To the notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.

(2) To the officer’s qualification. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made:

(A) before the deposition begins; or

(B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.

(3) To the taking of the deposition

(A) Objection to competence, relevance, or materiality. An objection to a deponent's competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.

(B) Objection to an error or irregularity. An objection to an error or irregularity at an oral examination is waived if:

(i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and

(ii) it is not timely made during the deposition.

(C) Objection to a written question. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it.

(4) To Completing and returning the deposition. An objection to how the officer transcribed the testimony—or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition—is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.

End

Amendment History

The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.

Plain-English Summary

Taking a deposition is only half the story; Rule 32 governs when it can be used in court. Any deposition can be used to contradict or impeach the witness who gave it. Beyond that, a deposition can be used against a party who was present, represented, or had reasonable notice of it, as long as the testimony would otherwise be admissible under the West Virginia Rules of Evidence.

Some depositions can be used for any purpose — most notably, an adverse party's own deposition testimony, or the deposition of a witness who's unavailable because they've died, left the state, can't attend due to age or illness, can't be reached by subpoena, or where exceptional circumstances justify it in the interest of justice. Limits apply too: a deposition generally can't be used against a party who moved for a protective order on short notice and that motion was still pending when the deposition happened, or against a party who couldn't get an attorney to attend despite diligent efforts.

Objections have their own timing rules. Most objections to how a deposition was taken or conducted have to be raised promptly — at the deposition itself, or as soon as the problem becomes known — or they're waived. Objections to competence, relevance, or materiality of the testimony are the exception: they survive even without an objection at the deposition, unless the problem could have been fixed by raising it right away.

Frequently Asked Questions

Can any deposition be used to impeach a witness at trial?

Yes. Rule 32(a)(2) allows any deposition to be used to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose the West Virginia Rules of Evidence allow.

When can a deposition be used for any purpose, not just impeachment?

When it's the deposition of an adverse party (or that party's officer, director, or designee), or when the witness is unavailable — dead, out of state (unless the party offering the deposition procured that absence), too ill to attend, or beyond the reach of a subpoena.

What happens if I don't object to how a deposition was conducted?

Most objections to the manner of taking the deposition are waived if not raised promptly, either at the deposition or as soon as the problem becomes known — though objections to a witness's competence or the relevance of the testimony aren't waived just because no one objected at the deposition.

Source & verification. The rule text is reproduced verbatim from the official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 32). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. · Official source

Also known as: using a deposition at trialdeposition objections waivedunavailable witness deposition