Civ Pro Q - Affidavits

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highviolet
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Civ Pro Q - Affidavits

Postby highviolet » Thu Oct 27, 2011 10:02 am

What's the difference between affidavits and the other discovery documents available under Rules 30, 31, 33, and 36? Seems like they would be very similar to written depositions, but I can't seem to get a good definitive answer on this. Professor has never really defined an affidavit for us, but it keeps popping up in the Rules and the reading. Thanks!

random5483
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Re: Civ Pro Q - Affidavits

Postby random5483 » Thu Oct 27, 2011 1:43 pm

Affidavits are sworn statements of fact supporting one of the parties position. Affidavits are often used to survive the summary judgment process. They are not a discovery tool like depositions.

That is what I recall from Civ Pro. It has been a while.

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ggocat
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Re: Civ Pro Q - Affidavits

Postby ggocat » Thu Oct 27, 2011 1:48 pm

Affidavits are voluntary sworn statements usually from friendly witnesses/parties. Affiants do not respond to questions; they merely state whatever they want to state. Written depositions are usually taken from uninterested or hostile witnesses because (I think) they are enforceable with a subpoena. Written depositions are in the form of questions and answers.

see also en.wikipedia.org/wiki/Affidavit

highviolet
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Re: Civ Pro Q - Affidavits

Postby highviolet » Thu Oct 27, 2011 4:52 pm

thank you - that helps a lot!

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jessuf
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Re: Civ Pro Q - Affidavits

Postby jessuf » Sat Oct 29, 2011 2:12 pm

ggocat wrote:Affidavits are voluntary sworn statements usually from friendly witnesses/parties. Affiants do not respond to questions; they merely state whatever they want to state. Written depositions are usually taken from uninterested or hostile witnesses because (I think) they are enforceable with a subpoena. Written depositions are in the form of questions and answers.

see also en.wikipedia.org/wiki/Affidavit


FYI -you cannot subpoena a non-party to complete a written deposition. Written depositions are for parties only. Affidavits, however, can contain written statements from non-parties you intend to have testify at trial if they were disclosed per R26.

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Extension_Cord
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Re: Civ Pro Q - Affidavits

Postby Extension_Cord » Sat Oct 29, 2011 2:28 pm

Affidavits can be sworn to by your client (affidavit as to indebtedness), by yourself as counselor for your client (affidavit for attorney fees) and just any other witness. They are signed and notarized.

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vertex
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Re: Civ Pro Q - Affidavits

Postby vertex » Sat Oct 29, 2011 4:42 pm

Jessuf wrote:
FYI -you cannot subpoena a non-party to complete a written deposition. Written depositions are for parties only. Affidavits, however, can contain written statements from non-parties you intend to have testify at trial if they were disclosed per R26.


This is incorrect. You're mixing up Rule 33 Interrogatories, which are written questions posed to parties, with Rule 31 Written Depositions which can be posed to anyone with some exceptions. Both are statements under oath, but only the latter requires a subpoena (I think) since there's really no reason to subpoena parties.

You're right about the affidavits though. It's basically what the witness (or party) would testify to at trial so the judge can know whether or not to grant summary judgment.

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jessuf
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Re: Civ Pro Q - Affidavits

Postby jessuf » Sun Oct 30, 2011 12:36 am

vertex wrote:
Jessuf wrote:
FYI -you cannot subpoena a non-party to complete a written deposition. Written depositions are for parties only. Affidavits, however, can contain written statements from non-parties you intend to have testify at trial if they were disclosed per R26.


This is incorrect. You're mixing up Rule 33 Interrogatories, which are written questions posed to parties, with Rule 31 Written Depositions which can be posed to anyone with some exceptions. Both are statements under oath, but only the latter requires a subpoena (I think) since there's really no reason to subpoena parties.

You're right about the affidavits though. It's basically what the witness (or party) would testify to at trial so the judge can know whether or not to grant summary judgment.


You're right, my bad. My textbook has an error in it, which is kind of awkward to point out to the professor since he authored it.

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ggocat
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Re: Civ Pro Q - Affidavits

Postby ggocat » Sun Oct 30, 2011 9:46 am

vertex wrote:
Jessuf wrote:
FYI -you cannot subpoena a non-party to complete a written deposition. Written depositions are for parties only. Affidavits, however, can contain written statements from non-parties you intend to have testify at trial if they were disclosed per R26.


This is incorrect. You're mixing up Rule 33 Interrogatories, which are written questions posed to parties, with Rule 31 Written Depositions which can be posed to anyone with some exceptions. Both are statements under oath, but only the latter requires a subpoena (I think) since there's really no reason to subpoena parties.

Correct. Parties aren't subpoenaed because they are required to answer interrogatories and RFAs and to appear at depositions without further process.

FWIW, I've never seen anyone actually use written depositions--on parties or non-parties.




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