De Bene Esse Deposition

A deposition taken for the sole purpose of preserving a witness’s testimony for use at trial, instead of discovery. Parties frequently take de bene esse depositions:

• After discovery has closed.
• When they anticipate that a witness will be unavailable for trial.

For example, counsel may request a de bene esse deposition where a witness is terminally ill and may not survive to testify at trial.

De bene esse depositions are generally videotaped and follow the format of trial testimony. Counsel may make objections as though the deposition were a trial. The trial judge then rules on any objections. A party may edit the videotape based on the judge’s rulings and show it to the jury at trial.

Before requesting a de bene esse deposition, counsel should check whether the local rules and the presiding judge's rules permit it.

For more information on de bene esse deposition, see Practice Note, Preparing for Trial (Federal): De Bene Esse Depositions.