The California Supreme Court issued new guidance to courts on when to admit deposition testimony from prior cases.
California’s hearsay rule states that evidence of a statement not made by a witness at a hearing is generally inadmissible.
One exception to the rule, Evidence Code Section 1291(a)(2), states that former testimony can be admitted if the same litigant is in both the old and new litigation, and if the litigant has the opportunity to cross-examine the witness.
The Supreme Court’s new ruling clarifies a different application for testimony offered in depositions, which were previously determined by the same rule as testimony during trials.
The decision emerged from a lawsuit against Ford Motor Co. for an allegedly defective product.
Trial testimony, or discovery?
Courts should first determine whether the litigating parties intended at the outset for the deposition to serve as trial testimony, the court ruled. If that were the case, then both counsels would have had the right and opportunity to examine the defendant, the section 1291(a)(2) exception to the hearsay rule would apply and the deposition could be admitted.
Courts should then determine whether the parties later reached agreement about how the deposition would be used at the prior trial, or in future trials. If the parties decided to use the deposition testimony in other litigation at the end of the testimony, the trial court should consider whether the now-objecting party implied at the time that it did have a right to examine the declarant. If the party did not imply that, then the exception would apply, and the deposition could be admitted.
Wahlgren precedent
In situations in which neither of those decisions could be proven, the deposition would generally follow the same rule as court testimony, which was established in the 1984 case Wahlgren v. Coleco Industries, Inc.
Deposition testimony would not be admitted unless proposing to introduce the testimony carries its burden that the opposing party had the required interest and motive, through a described manner. If the deposition is too early for the parties to conduct cross-examination, if the party has an aligned relationship with the deponent, if the deponent would not be available at trial, if the deposition was done to preserve testimony, or if the two cases are substantially parallel and share many facts, the deposition could be used in the later trial.
Legislative intent
The court made its decision based on the recorded legislative intent of the law as made in 1965. The legislators indicated that depositions were intended to exist by a different set of rules, the court found.
“For example, testimony 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 because he sought to avoid a premature revelation of the weakness in the testimony of the witness or in the adverse party’s case,” the court quoted the California Law Revision Commission as saying.
Parties
Chief Justice Tani Cantil-Sakauye wrote the unanimous opinion.
Steve B. Mikhov and Lauren A. Ungs of Knight Law Group; Bryan C. Altman and Christopher J. Urner of The Altman Law Group; and Edward L. Xanders, Cynthia E. Tobisman and Nadia A. Sarkis of Greines, Martin, Stein & Richland represented the Petitioner.
Frederic D. Cohen, Lisa Perrochet and Allison W. Meredith of Horvitz & Levy LLP; and Justin H. Sanders, Darth K. Vaughn and Sabrina C. Narain of Sanders Roberts LLP represented the Real Party in Interest.
Read the ruling here.
