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Counsel defending depositions have a decision to make – whether, after opponent’s the direct examination of the witness is complete, whether to “cross-examine” a witness aligned with our own client.  Usually, the answer will be “no,” because such questioning usually offers no advantages and could well undermine the witness (who may lose focus under friendly questioning) or provide clues as to the client’s trial strategy.  In Berroteran v. Superior Court, ___ P.3d ___, 2022 WL 664719 (Cal. March 7, 2022), the California Supreme Court unanimously held that these practical concerns defeated the “similar interest and motive” element required under Cal. Evid. C. §1291(a)(2) (the California equivalent of F.R. Evid. 804(b)(1)(B), although §1291 predates the Federal Rules) for an “unavailable” witness’ former testimony to be admissible at trial as substantive evidence.  Thus, in California, the testimony of corporate witnesses is no longer freely admissible, neither in the case where it was taken – nor, more importantly, in in future cases against the same party.  Since this ruling will have its greatest impact in mass tort litigation where the same defendant gets sued repeatedly about the same alleged product “defects,” we thought Berroteran was worth discussing.

The short answer is, if the deposing party wants a trial deposition, that party should take one, rather than try to repurpose a discovery deposition after the fact.

As might be expected, Berroteran was a mass tort case, only involving cars rather than prescription medical products.  The discovery depositions of a number of the defendant manufacturers’ non-California corporate witnesses occurred in a federal MDL, which (like many MDLs) later settled.  2022 WL 664719, at *1.  The plaintiff, who had declined to participate in that settlement, subsequently filed a substantively identical suit in California state court.  Id.  For trial – taking the easy/cheaper way − he designated testimony from nine of these “unavailable” (because they were not subject to California subpoena) witnesses.  Id.  The trial court excluded them all, because plaintiff did not establish the aforesaid “similar interest and motive” element, but the intermediate appellate court, on mandamus, reversed.  The defendant, of course, had not cross-examined any of its own witnesses.  Id. at *3.  The intermediate court held that a manufacturer defendant in a mass tort “has an interest and motive to examine its own witnesses during their depositions” because of its “interest and motive “to disprove” the [underlying] allegations . . . concerning the [product].  Id. at *1 (emphasis original with the California Supreme Court).  It imposed on the manufacturer “the burden to show that it lacked a similar interest and motive.”  Id.

Thus the intermediate court accepted, essentially, that as long as the defendant continued to defend itself against the “underlying” product liability claims (that is, doesn’t concede defeat), then that position on liability ipso facto satisfied the “interest and motive” prerequisite to use of prior deposition testimony.  That was contrary to the legislative commentary that accompanied §1921:

The determination of similarity of interest and motive in cross-examination should be based on practical considerations and not merely on the similarity of the party’s position in the two cases. . . .  [T]estimony contained in a deposition that was taken, but not offered in evidence at the trial, in a different action should be excluded if the judge determines that the deposition was taken for discovery purposes and that the party did not subject the witness to a thorough cross-examination.

Id. at *8 (quoting Comment − Assembly Committee on Judiciary) (emphasis omitted).

Fortunately, the California Supreme Court rejected this dumbed down approach to “interest and motive” that would have opened the door to use of almost any discovery deposition at any trial in a mass tort.  Rather than authorizing broad use of discovery depositions in mass tort cases, Berroteran held that California’s evidentiary statute “articulates a general rule (not a categorical bar) against admission at trial of prior testimony from a typical discovery deposition.”  2022 WL 664719, at *12.  Only prior trial testimony – not prior discovery depositions – is presumptively admissible.  Id.  The lower court’s contrary ruling flew in the face of the legislatively-approved comment that more than “merely . . . the similarity of the party’s position in the two cases” is necessary.  Id.  Discovery depositions were different than testimony taken for purposes of a trial:

Although depositions are sometimes conducted to preserve the testimony of a witness for trial, many are commonly conducted for the purpose of discovery.  The goal of discovery depositions is ordinarily twofold:  to obtain information from the witness and to provide a foundation for the witness’s impeachment, if necessary, at trial. . . .  A discovery deposition, in other words, is normally intended as a precursor to trial testimony − not as a substitute for such testimony.

Id. at *13 (citations omitted).

Given this difference between the ordinary reasons for seeking deposition, as opposed to trial, testimony, “the “‘interest and motive’ of the party opponent in cross-examination at a discovery deposition is generally not, as required by section 1291(a)(2), similar to that prevailing at trial.”  Id.  Discovery depositions have “no fact-finding audience.”  “[P]ersuasion is ordinarily a secondary consideration,” with the primary goal of a discovery deposition being to “get a ‘fix’ on” an adverse witness’ “expected” testimony.  Id.

In this context, cross-examination of the witness risks unintentionally educating and aiding the deposing party because questioning necessarily reveals information and commits the witness to particular testimony.  The interest and motive of an opposing party at a discovery deposition is therefore often against cross-examination of the witness.

Berroteran, 2022 WL 664719, at *13 (emphasis original).  Further, “[e]ffective cross-examination at a discovery deposition may be hindered by the absence” of “advance planning and a complete evidentiary record.”  Id.  For all of these reasons, “leading treatises are consistent in discouraging opposing parties from conducting cross-examination at a discovery deposition, at least when the witness being deposed is aligned in interest with the opposing party.  Id. at *14 (emphasis original).  “There was and remains overwhelming support for the proposition that defending counsel at a civil discovery deposition typically have strategic reasons to avoid questioning an aligned witness.”  Id. at *16

Thus, if a party wants to preserve testimony for trial, it should notice a trial deposition, with everything that entails, not a mere discovery deposition.

[D]epositions may preserve testimony when there is reason to believe the deponent will not later be called at trial − whether due to ill health or because of statutory provisions that allow for the use of deposition testimony at trial. . . .  [C]ross-examination may be appropriate when a deposition serves “to preserve the testimony of a deponent who either will not or may not be available at trial.”

Id. at *14 (citations and quotation marks omitted) (emphasis original).  Thus, to gain admission of a mere discovery deposition as trial evidence, the proponent “bears the burden of rebutting the general rule by submitting appropriate information justifying the admission of designated deposition testimony.”  Id.

Berroteran made a couple of other interesting observations.  First, cases involving admission of prior testimony in the criminal context are distinguishable because they “concern testimony arising in earlier adjudicative hearings” where a criminal defendant “often has an interest and motive to examine the witness in order to avoid being bound over for trial.”  Id. at *16 (emphasis original).  Second, “videotaping, in itself, does not affect the decision whether to examine an aligned witness at deposition.”  Id.  Third, §1291 places the burden of proving each if its prerequisites on the proponent of the prior deposition testimony – nothing is “presumed”:

[T]he appellate court implicitly presumed that because of the similarity of the suits and [the manufacturer’s] position in each, [that defendant] had an interest and motive to cross-examine each aligned witness during each deposition.  In so reasoning, the court appears to have discounted, if not ignored, the comment’s admonition that “mere[] … similarity of the party’s position in the two cases” is not dispositive, and instead must yield to other “practical considerations.”

Id. at 18 (citation to previously quoted legislative comment omitted) (emphasis original).  If a mass tort plaintiff does not want “to incur the expense of deposing each out-of-state witness in order to obtain and introduce that same testimony,” then the plaintiff should utilize other, available discovery tools, rather than rely on inadmissible hearsay.  Id. at *18.

Much of the discussion in Berroteran seems equally applicable to the analogous provisions of Federal Rule 804, even though California’s statute predated the Federal Rules of Evidence by about a decade.  While rejecting the intermediate appellate court’s argument that federal decisions applying Rule 804 were more liberal in admitting prior deposition testimony, 2022 WL 664719, at *15, the unanimous opinion directly dealt with federal Rule 804 cases only in footnotes:

We note that federal courts have denied motions to introduce deposition testimony at trials in subsequent cases even when the issues in the two cases were similar − suggesting that, consistent with our own understanding, similarity of the issues is not dispositive under the federal rule.

Id. at *15 n.22 (citations omitted).  See Id. at *15 n.23 (certain federal cases cited below did not “mean[] to suggest that a party’s reasons for limiting cross-examination in a deposition are categorically irrelevant to the similarity of interest inquiry”).

Finally, the court in Berroteran laid out a detailed process for evaluating claims that deposition testimony should be admissible, notwithstanding §1291(a)(2).  2022 WL 664719, at *19-21.  We won’t go into that in detail, but it should be required reading for counsel defending corporate witness depositions in mass tort cases.  Bottom line – to avoid having a discovery deposition become admissible, don’t do anything that makes it look like a trial deposition:

Conduct such as compelling out-of-state witnesses to appear for a videotaped deposition, and references made at the ensuing deposition to “testimony for the jury,” particularly by the party opposing admission, may contribute to a showing that testimony preservation was among the purposes of a deposition.  Relatedly, if the party opposing admission actually undertook an apparently searching examination of the deponent, the court may determine that such conduct suggests an interest and motive with respect to cross-examination similar to that which the party would have at trial in the present case.

Id. at *20 (emphasis original).  “Presumably, counsel for a party would not agree to a deposition’s use in any future different albeit related case unless counsel was satisfied that there had been, at that deposition, a right and opportunity to examine the declarant with an interest and motive similar to that which the party would have at trial in a future related case.”  Id. at 19 n.30 (emphasis original).

In sum, we find Berroteran remarkable in the degree of realism with which it viewed the motivations, strategies, and tactics of parties defending depositions.

And, geez, we also find the decision remarkable for the amount of emphasis the court used – another thing different about California.