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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!

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.

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

thank you - that helps a lot!

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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.

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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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.