A comment to my earlier post, The Importance of Examinations Under Oath, asked me to differentiate between a deposition and an examination under oath. A deposition is a discovery tool used during litigation to take the sworn testimony of a witness. In Colorado, depositions are governed by Colorado Rule of Civil Procedure 30 that states that a party to a lawsuit may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except and that party’s attendance at the deposition may be compelled by subpoena as provided in Colorado Rule of Civil Procedure 45. A party may also serve upon the person to be deposed a subpoena duces tecum that designates materials to be produced at the deposition. In an Examination Under Oath, sworn testimony is also taken, but only of the policyholders or people over whom the policyholders exert control.

A deposition is usually taken by sound recording by a court reporter, but can also be taken by sound and visual recording or by any other stenographic means, whereas, in an Examination Under Oath the only requirement is that the testimony be recorded verbatim and transcribed to written form.

In a deposition, Colorado Rule of Evidence 103 governs the examination and cross-Examination of a witness and testimony at a deposition shall be taken subject to the objections. Depositions are also limited to one day of seven hours but the court may limit the time permitted for the conduct of a deposition to less than seven hours, or may allow additional time if needed for a fair examination of the deponent. In Examinations Under Oath, the time period is one that is reasonable and the policyholder may be asked anything the insurer wishes to ask. Additionally, objections may be utilized during a deposition as well as in an Examination Under Oath but failure to answer a question in an Examination Under Oath could lead to a coverage denial due to the cooperation clause of the insurance policy.

The deponent may waive the signature requirement and choose not to sign the deposition transcript, but a deponent is required to review and sign the transcript from an Examination Under Oath. A deponent must pay for a copy of the deposition transcript, but the policyholder and any other person examined in an Examination Under Oath is provided with a free copy of the transcript of the examination.

The important thing to take away from the above differences is that during a deposition there may be a reason why an attorney may advise a client not to answer a question. If the attorney advises a client incorrectly, the sanction may be that the client is deposed again and the question must be answer. Whereas in an Examination Under Oath, an attorney who advises a client not to answer a question may place the client in a circumstance where the insurer may deny coverage for the claim and will not be required to take another examination of the policyholder to obtain the answer to the question or questions that the policyholder did not answer. Therefore, it is vital that a client is expertly advised and completely prepared for the Examination Under Oath and understands the importance of cooperation during the process, as there is nobody standing between your client and the insurance company.