Justin M. Forcier, an associate in the Delaware office of Eckert Seamans, prepared this overview.

This Court of Chancery opinion gives guidance to attorneys on the use of deposition transcripts as evidence in briefs. ACP Master Ltd., et al. v. Sprint Corp., et al., C.A. Nos. 8508-VCL and 9042-VCL (Del. Ch. Jan. 9, 2017).

Background: After the close of a complex trial, the Court of Chancery ordered the parties to provide post-trial briefing. Instead of the normal word limit, the defendants proposed that opening and answering briefs be extended to 42,000 words and reply briefs be limited to 25,000. The plaintiffs agreed, and the court reluctantly approved the expansion of the normal word-limits for briefs.
When the defendants submitted their opening brief, they included appendices. Those appendices included lawyer-drafted characterizations of documents and quotations for issue-specific timelines in the defendants’ fact argument. In total, the court calculated that due to the prolix descriptions in the appendices, the defendants submitted approximately 120,000 words in their opening brief (and appendices).
Second, in preparing for this trial, the parties took 26 depositions. In their brief, the defendants cited to the depositions of six deponents. The plaintiffs challenged the use of those deposition transcripts under Rule 32 and 801(d).

Analysis: After the plaintiffs objected, the court stated that the defendants’ attempt to further enlarge the word limit is not allowed under Rule 107(j). Rule 107(j) allows the parties to submit appendices, but “it is customary to provide a neutral table of contents,” which is not what defendants submitted.
Second, the court noted that Rule 32 allows for the use of deposition transcripts in lieu of testimony only in certain situations. Deposition transcripts may be used for any purpose if the deposition was of a party—but in the case of any entity, that means an officer, manager, director or agent, or a person designated under Rule 30(b)(6) when those transcripts are used by an adverse party. But when a transcript is used for a purpose other than those described in Rule 32(a), that testimony is hearsay.
The court also examined two exceptions to the prohibition on hearsay pursuant to Rule 801. The first exception the court examined was a prior statement by a witness. In order to invoke this exception, the defendants had to show that the statement is: (1) inconsistent with other witness testimony; (2) consistent with other testimony and used to rebut an express or implied charge of fabricating testimony; or (3) to identify a person. The second exception the court examined was admission by a party opponent.

Court’s Holding: First, the court stated that if the parties had not already agreed to greatly enlarge the word limits, it would have struck the appendices in their entirety. Instead, the court ordered that the plaintiffs may now submit annotated versions of the defendants’ appendices and plaintiffs’ own responsive citations. The defendants must also provide the plaintiffs with a Word version of the appendices. Finally, the defendants must bear the costs and expenses incurred by the plaintiffs in responding to the defendants’ appendices.
Second, the court held that the defendants were not “adverse” to the deponents; and therefore, could not use the transcripts of their witnesses pursuant to Rule 32.
The court also held that, to the extent possible, the defendants could use the deposition transcripts under the prior-statement-by-a-witness exception. The court noted that this use will be limited, however, because the parties don’t normally cite to the inconsistencies of their witnesses; this was an opening brief so there won’t likely be charges of fabrication; and identity was not at issue.
Finally, the court held that the defendants cannot rely on the admission-by-a-party-opponent exception to use the deposition, because the testimony of their witnesses cannot be an admission of a party opponent.