Early in discovery, you recognize that an out-of-state nonparty witness has information you need for trial, including testimony that supports your case and/or provides a basis for admitting a crucial document into evidence. You smartly obtain a commission (or, if the witness is in New York, serve a subpoena as permitted by CPLR 3119), properly notice a videographer under R. 4:14-9, and take your deposition. At the deposition, the witness clearly states that he/she is not a New Jersey resident. At trial, you should be able to show key portions of the deposition, correct? Not so fast. Some adversaries will try to exploit the unclear language of R. 4:16-1(c) to claim that you have failed to show that the witness is “unavailable,” either because you have not begged the nonparty to appear at trial, or because your adversary makes a vague statement that he can convince the nonparty to “voluntarily” appear at trial, although not necessarily on the day you want to have that testimony put before the judge or jury.
Such gamesmanship should be rejected. Rule 4:16-1(c) “generally follows Fed. R. Civ. P. 32.” Pressler & Verniero, Current N.J. Court Rules, Comment R. 4:16-1 (GANN). Rule 32(a)(4)(D) clearly provides that the “party may use for any purpose the deposition of a witness, whether or not a party, if the Court finds that the party offering the deposition could not procure the witness’s attendance by subpoena.”
