A deposition taken for the sole purpose of preserving a witness’s testimony for use at trial when counsel anticipates that the witness will be unavailable for trial (for more information, see Practice Note, Preparing for Trial (Federal): Determine if a Witness is Unavailable). De bene esse depositions usually occur after discovery has closed. They are not used for discovery purposes. (For resources on discovery in federal litigation, see Document Discovery Toolkit and Discovery Motions in Federal Court Toolkit.)

For example, counsel may request a de bene esse deposition where a witness is terminally ill and may not survive to testify at trial.

De bene esse depositions are generally videotaped and follow the format of trial testimony. Although exact procedure varies among courts, typically, the proponent must present the videotape to opposing counsel and the judge before showing the videotape to the jury. Opposing counsel may then make real-time objections to the videotape as though it were trial testimony. The trial judge then rules on any objections. If required based on the judge's rulings, the proponent edits the videotape, after which it is shown to the jury at trial (for more information on jury trials, see Practice Note, Civil Jury Trials (Federal)).

Before requesting a de bene esse deposition, counsel should check whether the local rules and the presiding judge's rules permit it.

For more information on de bene esse depositions, see Practice Note, Preparing for Trial (Federal): De Bene Esse Depositions.