My soon to be ex-husband (we are separated but divorce is not final) was just subpeonaed by his former employer because his former employee is suing a company (california based) for wrongful termination (she was let go in April '12, he left the company in Dec '11). When she was being deposed, she was questioned about the affair she and my husband had for 3 years of their employment. He would be asked to testify to the same thing. Can I use their depositions as evidence to file a fault divorce (in VA)?
Yes and no, is the answer. First, I do not believe you will be successful on with a subpoena to acquire the depositions from another civil matter and even if you did acquire them, you must still
subpoena the woman that you husband an affair with to Court. The depositions may only used to impeach her if she denies the affair. So really what is the point. Adultery is a grounds for divorce but what are you fighting for. Kids property, support. Many times client get so focused on proving how bad the other party was not on custody or equitable division of assets. You really need to sit down with a family law attorney to discuss what is best for you and how to best use the fact that your husband cheated on you.
For starters, a deposition can ONLY be used in the actual court proceeding IF you can prove that the witness is "unavailable" as that terms is defined under the rules of evidence. While there are some circumstances in which a deposition may be taken in lieu of live testimony (known as de bene esse depositions), depositions are really just one form of discovery -- a tool that is used to discover and develop the facts of the case in preparation for trial and so that you can nail a witness down under oath as to what it is that they will testify to IN COURT. If the witness testifies to different facts at trial, then their deposition testimony can come in as impeachment evidence. You can't just simply hand the deposition to the judge and not call the witness!
Now, IF the witness is outside the subpoena power of the court (say the woman lives in CA and has NO ties to VA), then that may be sufficient "unavailability" for the court to allow the admission of deposition testimony. HOWEVER, you would need to take the deposition as part of your case. So, what would normally happen is that your lawyer would need to hire special counsel in CA (likely together with the filing of an ancillary proceeding with a CA court to compel the witness' appearance and testimony at the deposition) and the deposition would be conducted in CA. If the witness is willing to voluntarily appear for a deposition in their home state and both parties in the pending action agree to it, then the deposition may be conducted by telephone even.
As regards your husband's deposition, if it is reasonably calculated to lead to admissible evidence in the subsequent divorce case between the two of you, then you may be able to subpoena his deposition testimony from the other lawsuit (via issuance of a subpoena duces tecum to the court reporting agency that transcribed the deposition). Again, you would do this as part of the discovery process in your case -- for example, at a new deposition in your divorce case you could ask him some of the same types of questions re: the affair that were asked in the previous deposition and questioning concerning any inconsistencies in answers, etc. BUT, unless your husband is "unavailable" trial, you could not substitute the deposition for trial testimony and except under the most exceptional of circumstance, you could not use a deposition from a different court proceeding involving different parties.
Rules of evidence and proper discovery are very complex and you really should retain an experience divorce attorney to assist you with your case.
