California Evidence Code § 1291(a)(2) creates a hearsay exception for prior testimony when a witness is unavailable and the party against whom the testimony is offered had the opportunity to cross-examine that witness with an “interest and motive similar” to that which the party has in the instant action. The trial court excluded the prior deposition testimony but was reversed on appeal. The intermediate appellate court concluded that the defendant had the same interest and motive to cross-examine its own witnesses during related discovery depositions as it had in defending the plaintiff’s claims at trial, based on a similarity of position.
The Supreme Court of California disagreed, reasoning that “a party would be unlikely to have a motive or reason at a deposition of its own witness to disprove anything…concluding otherwise would substantially expand and complicate deposition practice, forcing it to take on the character of a full-blown liability trial.”
Similarity of Motive and Interest
In reversing the appellate court, the court focused on what it considered to be “unusually specific guidance concerning section 1291, in the form of official commentary…” The court explained that the legislature had occasion to consider similar circumstances and cautioned “that a 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.”
Due to a split in the appellate circuits, the court then provided instructions to the state’s trial courts when evaluating whether to allow testimony under Section 1291(a)(2). The court explained that the general rule disfavors the admission of testimony from a prior civil discovery deposition unless certain “practical considerations” are present. The threshold inquiry is the intent of the parties and any agreements between them. Absent an agreement or mutual intent, the court explained that deposition testimony should not be admitted unless the party proposing its admission carries its burden of demonstrating that the opposing party had the required “similarity of motive and interest.”
The six practical considerations to be weighed when making this determination are: (1) the timing of the deposition in the context of the litigation, including any special circumstances that would incentivize cross-examination; (2) the relationship between the deponent and the opposing party; (3) the anticipated availability of the witness at the time the deposition was taken; (4) conduct at the deposition, including the extent of any actual cross-examination; (5) the specific testimony to be admitted; and (6) similarity of position.
The Berroteran court determined that the plaintiff could not show similarity of motive and interest on the part of the defendant with regard to discovery depositions of its employees in related civil matters.
Prioritizing Strategy Is King
Litigation Section leaders were not surprised by the court’s focus on the opposing party’s motive. “A party may well have no interest in cross-examining its own witness at deposition as opposed to at trial,” opines Sherilyn Pastor, Newark, NJ, cochair of the Section’s Trial Evidence Committee. “It is unusual for a party to question its own witness at a deposition, other than to correct or clarify answers. Doing so can educate an adversary and cause it to have more questions,” explains Pastor.
“Discovery depositions present counsel, using a card game analogy, with an opportunity to see the other party’s hand, not to necessarily show off one’s own cards,” adds John S. Austin, Raleigh, NC, cochair of the Section’s Trial Practice Committee. However, there might be instances where it makes sense from a strategic standpoint to cross-examine your own witness during a discovery deposition. “Obviously, certain cases may allow certain strategies in which counsel may go beyond any rehabilitation during a discovery deposition and ask the questions that will reveal the client's trump cards that will eventually win the case,” says Austin. “For example, such strategies may be employed for settlement or mediation purposes or for grounds for summary judgment,” Austin reasons.