California Supreme Court Decision Gives Relief To Defendants Seeking To Prevent Their Prior Discovery Depositions From Being Used At Trial

• Published date: 17 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Harris Beach
• Author: Ms Judi Abbott Curry, Abbie Eliasberg Fuchs, Daniel R. Strecker and Marcus O. Tubin

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...