COURT OF CHANCERY
OF THE
STATE OF DELAWARE

J. TRAVIS LASTER Leonard L. Williams Justice Center

VICE CHANCELLOR 500 N. King Street, Suite 114()0
Wilmington, Delaware 19801-3734

January 9, 2017

Stephen E. Jenl1992 WL 390617, at *2
(Del. Super. Ct. Oct. 26, 1992). Therefore, its proponent must identify a basis for using the
transcript in lieu of live testimony. Unlike in the situations contemplated by Rule 32, which
dispense with this step by contemplating that the rules of admissibility are “applied as
though the witness were then present and testifying,” a party using a deposition outside of

Rule 32 must first address the use of the transcript One means is if testimony meets an

January 9, 2017
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exception under Rules of Evidence 803 or 804. Another means is if the testimony falls
within an exclusion from the hearsay rule under Rule of Evidence 801(d).
Rule of Evidence 801(d) identifies two situations that are classified as “not hearsay.”
The first is a prior statement by the witness Under this exception, a statement is “not
hearsay” if
[t]he declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is (A) inconsistent
with his testimony, or (B) consistent with this testimony and is offered to

rebut an express or implied charge against him of recent fabrication or
improper influence or motive, or (C) one of identification of a person.

D.R.E. 801(d)(l). The defendants can use the deposition transcripts of the Disputed
Witnesses if their use falls within this rule, but there are few instances in their opening brief
where the testimony meets this exception. This is not surprising. The defendants are not in
the business of citing inconsistencies in their own witnesses’ testimony, nor in their
opening brief are they frequently seeking to “rebut an express or implied charge . . . of
recent fabrication or improper influence or motive.” The identification of a person was not
generally at issue.

The second exception under Rule 801(d) is an admission of a party-opponent. The
defendants cannot invoke this rule because the testimony of their witnesses is not an
admission of a party-opponent.

The plaintiffs are therefore entitled to an order striking references in the defendants’
pretrial brief to the deposition testimony of the Disputed Witnesses. Within five days of

this ruling, the defendants shall file a revised brief retaining only those citations that they

January 9, 2017

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believe fall within Court of Chancery Rule 32(a) or Rules of Evidence 801(d)(1), 803, or
804. The defendants shall provide the plaintiffs with a blacklined version and a table that
identifies each citation that has been retained and which provides a specific explanation as
to why the defendants can rely on the testimony. To make sure the plaintiffs are not short-
changed on time, the date for their answering brief shall be pushed back by the number of
days the defendants use, with the days coming out of the time allotted to the defendants for
their reply.

This ruling does not limit the plaintiffs’ ability to use the deposition transcripts to
the extent consistent with Rule 32, Rule 801(d), or other evidentiary rules Nor does it limit
the defendants’ ability, once the plaintiffs have relied on particular testimony, to respond.
At that point, Rule 801(d)(1)(B) may apply more clearly. Or other doctrines may come into

play, such as the rule of completeness See Ch. Ct. R. 32(a)(4); D.R.E. 106.

Sincerely yours,
/S/ J. Travis Laster

J. Travis Laster
Vice Chancellor

JTL/krw