When defending litigation in one state, mass tort defendants must consider other jurisdictions’ rules.  For example, while some states generally prohibit a plaintiff from using a defendant’s discovery deposition as part of the plaintiff’s case in chief, others do not; a discovery deposition may resurface on a plaintiff’s case in chief in another jurisdiction, sometimes years or decades later. California, classified as the No. 1 judicial “hellhole” in America for 2021-2022 by the American Tort Reform Foundation, is among the states whose rules loom large when litigating elsewhere, and a 2019 appellate ruling made it much easier for California plaintiffs to use a defendant’s previous discovery deposition at trial.  The recent California Supreme Court decision in Berroteran v. Superior Court,  41 Cal.App.5th 518 (2022), overturns that ruling, makes it more difficult for California plaintiffs to use a defendant’s prior depositions for their case in chief, and clarifies the showing that a plaintiff must make in order to do so.

California Evidence Code section 1291(a)(2) provides an exception to the hearsay rule for prior testimony if, among other things (e.g., witness unavailability), the objecting party had “the right and opportunity to cross-examine the declarant with an interest and motive similar to that which” the same party will have “at the [present] hearing.”  In Wahlgren v. Coleco Industries, Inc., 151 Cal.App.3d 543 (1984), the Fourth Appellate District, interpreting this provision and associated legislative commentary, excluded prior deposition testimony because a party at a deposition does not have the same interest and motive to cross-examine as at trial.  In its 2019 decision in Berroteran, the Second Appellate District, encompassing Los Angeles, disagreed with Wahlgren to the extent Wahlgren espoused a blanket rule. See Berroteran v. Superior Court, 41 Cal.App.5th 518, 534 (2019).

However, the California Supreme Court in Berroteran (2022) overturned the Second Appellate District. The Court noted that for strategic reasons counsel are discouraged against, and generally do not, cross-examine their own witness at a discovery deposition. For this and other reasons, a party at a deposition generally does not have the same interest and motive to cross-examine.  The Court criticized the lower court’s focus on the similarity between the defendant’s substantive position in the proceeding in which the deposition was taken, instead of such practical concerns.

The Court held it is the proponent’s burden to show that this prohibition does not apply.  The Court outlined circumstances that, if shown, would warrant an exception. If the parties manifested an intent that the deposition would serve as trial testimony, it creates a rebuttable presumption that the interest/motive was similar; likewise, if the parties subsequently agreed that the testimony could be used at other trials, the interest/motive was similar (but the Court noted that agreeing to use deposition testimony at trial in another case did not necessarily constitute agreeing to use it at trial in the case at hand). 

In less clear-cut circumstances, the Court listed six “practical considerations” for determining if the opposing party’s interest/motive to cross-examine at the deposition was similar:

  1. Timing – such as a deposition after the parties have been educated by earlier, similar lawsuits, or a deposition in anticipation of a mediation or settlement conference
  2. Relationship to the deponent – the interest in cross-examining increases as the relationship diminishes (the Court hypothesized that if a party is unlikely to cross-examine a witness at trial, lack of cross-examination at the deposition might still constitute “similar” circumstances)
  3. Availability of the deponent – when the deposition was taken, was the deponent in poor health or not amenable to subpoena?
  4. Conduct at the deposition – references to “testimony for the jury” (especially by opposing counsel) and the degree of cross-examination engaged in
  5. The specific testimony – especially testimony that is confusing or adverse (this should not be considered in isolation, since there may still be reasons not to cross-examine); and
  6. Similarity of the party’s substantive positions – while relevant, the Court emphasized that this cannot establish similarity of interest/motive in isolation

The Court stated that this analysis should be applied to each deposition from which the plaintiff seeks to introduce testimony.

Mass tort defendants in California, or whose testimony may later resurface in cases pending in California, may be able to capitalize on Berroteran and reduce the likelihood of a discovery deposition’s being used on a plaintiff’s case in chief. When agreeing that a deposition may be used at trial, the risk of opening this door should be considered and where possible expressly addressed.  Avoiding phrasing like “please tell the jury …” will diminish the argument that the party knew testimony would be used at trial.  It may be advisable to state on the record that the deposition is for discovery.  Where possible, avoiding extensive cross-examination may reduce the likelihood of a determination that there was similar interest/motive.  In the case of pre-existing testimony, it may be advisable to move in limine to exclude any transcripts plaintiff intends to use on plaintiff’s case in chief, and use the existing record to develop evidence that the deposition was conducted for discovery purposes. If other counsel defended the deposition and stakeholders are amenable, a declaration that the deposition was for discovery purposes and addressing the above “considerations” could influence a court.

The California Supreme Court’s decision in Berroteran affirms the legislative intent behind California Evidence Code section 1291(a)(2). However, the ruling does not provide a categorical ban against the use of deposition testimony at trial, especially where the parties have agreed or seemed to agree to the contrary.  Practitioners should be guided by the above considerations if seeking to prevent present and past deposition transcripts from being used on a California plaintiff’s trial case in chief.

If you have any questions about the matters in this Legal Alert or any other legal issues, please contact Judi Abbott Curry, Abbie Eliasberg Fuchs, Daniel Strecker, Marcus Tobin or the Harris Beach attorney with whom you usually work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington, D.C., New Haven, Connecticut and Newark, New Jersey.