A deposition de bene esse, rooted in the Latin phrase meaning “well enough” or “of well being,” is a legal process for recording testimony provisionally—typically to preserve the statements of a witness who may not be available for trial due to illness, age, travel, or compelling circumstances. While the procedure traces back to English chancery practices in the 1700s, U.S. courts today recognize it as an essential mechanism to lock in testimony, especially for key participants in fraud and Ponzi litigation whose later availability is often unpredictable.
Historical Origin and Legal Standing
The term originated in English law, providing courts a practical way to admit evidence subject to later challenge when a witness’s availability was questionable. In the United States, the functional concept—though not always the name—is embodied in Federal Rule of Civil Procedure 32(a)(4), which authorizes use of deposition testimony at trial if a witness is unavailable.
Many state courts, including those in Florida and New York, have incorporated de bene esse protections into their general deposition rules, making it clear that trial testimony can be preserved outside of discovery deadlines when justice demands it. See, e.g., Florida Rule of Civil Procedure 1.310 and New York CPLR § 3106.
Fraud and Ponzi Scheme Applications
Civil actions targeting Ponzi scheme operators and fraudsters regularly involve de bene esse depositions. Imprisoned or international defendants may be unreachable, and courts routinely allow for video or transcript-based preservation of their testimony so both sides—plaintiff and defense—are on equal footing, even in logistically complex cases. These rules become critical in multi-defendant fraud cases with out-of-state or foreign witnesses.
Challenges of Deposing Incarcerated Individuals
Arranging depositions in jails or prisons introduces significant procedural and logistical difficulties. Corrections authorities may restrict access or communications, requiring judicial orders and careful advance planning. Cross-examination rights, authentication of transcripts or recordings, and accommodations for security must be coordinated closely to produce a record usable at trial.
Arranging a Deposition De Bene Esse
Securing a de bene esse deposition starts by showing “good cause”—the clear likelihood the witness may not be available at trial. Notice must be provided specifying the method, date, and location, with video or transcript options. Orders often require court involvement for incarcerated or international parties, with all procedural protections afforded to ordinary depositions, including the right of cross-examination and proper record-keeping.
Example 1: Neves v. Frieri
Neves v. Frieri (S.D. Fla. Bankr.) was a cross-border fraud case, in which the U.S Bankruptcy Court for the Southern District of Florida assessed and denied a motion for de bene esse deposition of a key witness in Italy due to inadequate planning and prejudice to the opposing parties.
In this case, plaintiffs sought to take a de bene esse deposition and allow trial testimony via video for Salvador Frieri, their principal witness, who was under house arrest in Italy. The court found that the plaintiffs had long known about Frieri’s travel restrictions—stemming from legal issues in Colombia and Italy—but failed to take timely steps to preserve his testimony or secure alternative arrangements. Despite multiple opportunities over nearly two years, they waited until just before the discovery cutoff and trial to request relief, which would have imposed logistical burdens and unfair prejudice on the defendant.
Citing Eleventh Circuit precedent and Federal Rule of Civil Procedure 43, the court concluded that the plaintiffs’ predicament was of their own making and did not meet the standards of good cause or compelling circumstances required for such accommodation. The court denied the plaintiffs’ motions to preserve and present testimony from their key witness, Frieri, due to their own prolonged inaction and tactical delays, which created avoidable prejudice to the defendant. A copy of Judge Isicoff’s memorandum opinion can be found here.
The opinion details logistical hurdles and court reasoning on balancing party interests—a candid look at the procedural limits when testimony must be secured under extraordinary circumstances.
Example 2: Dopson-Troutt v. Novartis Pharmaceuticals
Within the Eleventh Circuit, Dopson-Troutt v. Novartis Pharm. Corp., Case No. 8:06-CV-1708-T-24 (M.D. Fla. Feb. 3, 2014), offers a textbook case of a granted de bene esse deposition seven weeks before trial where efforts had been made to preserve testimony. The court found ample time for arrangement and explicitly authorized the trial-preserving deposition, demonstrating the Southern District of Florida’s practical approach for ensuring vital evidence enters the record—even when witnesses are likely unavailable for in-court testimony.
Takeaway
Depositions de bene esse remain indispensable for safeguarding trial testimony from witnesses at risk of being out of reach. As illustrated by these examples, courts in the federal system—including the Eleventh Circuit—balance party needs and case complexity, adapt procedures to fit modern realities, and rigorously protect the integrity of the trial process in business fraud and Ponzi scheme litigation. However, vigilant counsel should undertake steps to preserve testimony by seeking relief at the earliest opportunity.
Discover more from A Lawyer In Florida
Subscribe to get the latest posts sent to your email.
