De Bene Esse depositions: A trial testimony insurance policy

In the wake of COVID-19, litigators all across the United States are noticing an old, yet infrequently utilized, evidentiary tool emerge to address unexpected trial witness unavailability: the de bene esse deposition. A Latin legal term literally translated to “of well being,” the phrase refers to various acts which are conditional, provisional or anticipatory. De bene esse proceedings have been used in traditional English law (and in the London market) for hundreds of years; as far back as in the 1744 publication Equity Cases Abridged, the phrase was used to describe the deposition of a witness before trial in the Court of Chancery. In the context of American law, a proceeding de bene esse is one "which [is] taken ex parte or provisionally and [is] allowed to stand as well done for the present." See Black's Law Dictionary, 5th edition.

Traditionally, the de bene esse deposition was reserved for situations where live testimony would be impossible due to some unforeseen circumstance just before trial, such as terminal illness of a witness. In more a modern context, however, the de bene esse deposition is now surfacing as a protective measure to ensure the ability to present expert testimony at trial where a witness was otherwise unavailable (due to scheduling or other travel constraints). Few attorneys utilized the process historically, however, now that trials are resuming in the wake of the COVID-19 court closures, litigators are finding themselves faced with the need for a de facto insurance policy for their evidentiary presentations at trial: Queue the de bene esse deposition.

Discovery Deposition v. De Bene Esse Deposition

While both types of depositions are taken pretrial, litigators should consider several key differences between the two:

1. Timing: A traditional discovery deposition is taken early in the case, often as a fact finding mission to tailor later dispositive motions, discovery requests, and ultimately, trial testimony. A de bene esse deposition, on the other hand, is often taken much closer to trial, once it becomes apparent that a witness will not be available for live testimony. Rather than a proactive tool, the de bene esse deposition is considered a reactive tool.
2. Protocol: Unlike discovery depositions, de bene esse depositions are almost always videotaped. Moreover, while counsel may limit organically their objections in a discovery deposition, or make general ongoing objections, a de bene esse deposition requires counsel to proactively and continuously object in “real time” as they would in open court – as the judge will be ruling on each objection prior to the streaming of the de bene esse deposition during trial.
3. Presentation: Discovery deposition testimony is often cherry picked to suit a moving party’s dispositive motions or trial testimony, as is permitted by the Federal Rule of Civil Procedure 32(a)(4). A de bene esse deposition, however, by its sole purpose of offering testimony in lieu of a live witness, is limited to the same rules of  “live” presentation; a party cannot pick and choose which portions of the deposition are played for the court – the parties must take the probative testimony and the prejudicial testimony alike as it is played for the judge or jury.

De Bene Esse Depositions and the Federal Rules

Of note, the process and procedures for taking a de bene esse deposition are not directly contemplated by the Federal Rules of Civil Procedure or the Federal Rules of Evidence, and few jurisdictions (such as the State of New Jersey and the District of North Carolina) have outlined procedures for noticing, taking, and presenting evidence from these types of proceedings. The term “de bene esse” does not appear anywhere in either statute.  However, Courts generally hold that de bene esse depositions are still subject to the rules of Federal Rule of Civil Procedure 32(a)(4), which provides procedures for testimony when a witness is deemed “unavailable”:

Fed. R. Civ. P. 32(a)(4)(B), (E).

Further, the procedures granted by the Federal Rules of Evidence address the Court’s ability to recognize that while witnesses are expected to be available, they are not expected to be at ready at the whim of a particular party, and judges routinely exercise their powers under Rule 611 to accommodate reasonable witness scheduling, such as the use of a de bene esse deposition at trial. See generally Estate of Thompson v. Kawasaki Heavy Indus., Ltd., 291 F.R.D. 297, 312-13 (N.D. Iowa 2013) (“This does not mean that Mr. Macklin must necessarily be available, as guaranteed by Kawasaki, whenever the Thompsons want to call him. Rule 611 of the Federal Rules of Evidence does grant me the authority to ‘exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.’ FED.R.EVID. 611(a).”).

Moreover, Courts have, in more recent years, upheld the use of discovery depositions as de bene esse depositions when a witness is simply unavailable as prescribed by the Federal Rules. As an example, in  Bouygues Telecom, S.A. v. Tekelec, Inc., 238 F.R.D. 413 (E.D.N.C. 2006),  the court held it was appropriate to treat deposition of foreign attorney noticed by defendant as a de bene esse deposition that was not barred by twenty-deposition limit in case management order, where defendant made clear its intention to take attorney's deposition to preserve her testimony if discovery deposition could not be effected, and attorney's trial testimony could be obtained only by means of deposition. In Bouygues, the court found several factors in favor of a de bene esse deposition designation:  First, the deponent was located in France and had demonstrated her unwillingness to submit voluntarily to examination. Second, the letter rogatory authorizing the deposition specified the topics to be covered at the deposition, the time allotted for the deposition was just a few hours, and the moving party ensured that a French judicial official would attend and control the proceeding. The Court found that these limitations would  help ensure that the focus of the deposition would be preservation of the testimony for trial. Essentially, Courts are leaning towards the idea that if good cause is established, the de bene esse deposition is a justifiable and appropriate means of evidence presentation at trial.

Ensuring the Availability of De Bene Esse Depositions at Trial

While a de bene esse deposition does encourage litigators to narrowly tailor their lines of direct and cross examination early on, the parties are limited in their ability to make further strategic decisions based upon a deponent’s testimony. However, the ability to have a backup plan in the face of unexpected unavailability of key, critical witness, and in order to preserve the right to utilize this powerful tool of evidence, litigators should consider the following steps in pre-trial practice:

1. Propose FRCP 32(a)(4) Motion Guidelines in a Joint Scheduling Order or initial Trial Order: To avoid any issues with taking de bene esse depositions outside the discovery period, or in excess to previously agreed upon deposition limitations, counsel should meet and confer early with all parties and encourage the inclusion of de bene esse deposition procedures in their pre-trial scheduling orders.
2. Consider Stipulations on the Record in Discovery Depositions for use as De Bene Esse: To the extent possible, counsel should propose stipulations prior to, or consider language in their deposition notices citing to the intention to designate a certain deposition de bene esse in the event necessary, including any requirements for a noticed motion to the court to designate a discovery deposition as de bene esse pursuant to FRCP 32(a)(4) and FRE 611.
3. Evaluate whether your case type necessitates de bene esse testimony: beyond the likely probative use of de bene esse depositions in litigation involving aging witnesses or those in poor health (e.g. trust and states litigation or conservatorship proceedings, as well as long-tail class action claims), litigants should consider whether or not the trial court has ultimate subpoena power to compel certain individuals to testify in a matter (whether they are out of state or out of the country). To the extent that these key witnesses can be identified early in the case, counsel should proactively seek to include provisions both in their scheduling orders and in their deposition stipulations to designate the proceedings as de bene esse.

In Sum: A Helpful Tool Under the Right Circumstances

Despite several procedural limitations and relatively limited use, the de bene esse deposition continues to serve as an important insurance policy for the unexpected availability pitfalls of trial. While certain unavailability issues may be ameliorated with remote video testimony, some circumstances still call for the traditional tools used by litigators for hundreds of years.