Judge Kimbler Opinion on Use of Deposition on Motion for Summary Judgment

Below is the text of an opinion that concerns whether a trial court can consider a deposition filed after the day set for the hearing on the motion for summary judgment but prior to the trial court issuing its decision.
[One of the defendants] filed a motion for summary judgment pursuant to Civ. R. 56 on March 16, 2007. The motion was set for a non-oral hearing on April 19, 2007. The motion cites to the Plaintiff’s deposition in support of the motion. Unfortunately the Plaintiff’s deposition was not filed until May 23, 2007.

Pursuant to Civ. R. 31 (A) a deposition that is going to be as evidence in a trial or hearing must be filed one day in advance of such trial or hearing. This rule can be avoided if the trial court finds that there is good cause for the failure to file the deposition one day in advance of the hearing.

In this case, while the [defendant] did seek an order allowing the deposition to be filed under seal, it did not seek an order under Civ. R. 31 (A) allowing the deposition to be filed after the hearing date set on its motion for summary judgment.

Because of this Court’s trial schedule, however, this Court was not able to consider the [defendant's] motion for summary judgment until after the deposition was filed, but the motion was not set for a rehearing, that is, the motion has been pending before this Court since April 19, 2007. Therefore, the issue becomes whether a trial court can consider a deposition for purposes of a ruling on a motion for summary judgment that is filed after the hearing date but before the trial court issues its decision on the motion.

This Court believes that the language of Civ.R. 31 (A) prevents such a use of the Plaintiff’s deposition. This Court believes that in ruling on the motion for summary judgment filed by the [defendant], it has to consider all the evidence filed by the parties prior to April 19, 2007 and not after that date.

Examining the evidential material submitted by the [defendant] but excluding the Plaintiff’s deposition, this Court finds that the evidence submitted does not support the granting of a motion for summary judgment and the motion is therefore denied