Discovery Depositions and Hearsay Evidence

The California Supreme Court recently issued an important ruling on the use of civil discovery depositions in lieu of trial testimony. The court’s opinion in Berroteran v. Los Angeles County Superior Court, No. S259522 (Calif. Sup. Ct., March 7, 2022), removed from the books an intermediate appellate court decision that it believed would have admitted at trial — over hearsay objections — too many civil depositions that had been taken merely for discovery purposes.

Along the way, the court had a lot to say about the civil discovery practice, the uses of depositions within the context of other pretrial discovery tools, trial strategy, and considerations that litigators should keep front of mind whenever they take or defend a civil discovery deposition.

“Practical Considerations”

The case involved litigation against Ford Motor Co. over alleged defects in diesel engines that had been used in some Ford vehicles in the early and mid-2000s. Nine out-of-state Ford employees gave depositions concerning the company’s knowledge of, and ability to address, alleged defects in those engines. That case settled, but others were subsequently filed against Ford alleging the same diesel engine defects. The plaintiff in one such lawsuit, Raul Berroteran, sought to use the depositions at trial in his case.

The trial court declined to admit the depositions, finding that they did not qualify for the hearsay exception set out in California Evidence Code Sec. 1291(a)(2). Under Sec. 1291(a)(2), testimony (e.g., prior deposition testimony of an unavailable witness) is admissible if the party against whom the testimony is offered “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the objecting party would have in the present trial.”

The intermediate appellate court reversed, finding that the prior depositions were admissible because, it said, Ford had an interest and motive to disprove the allegations regarding its knowledge of alleged defects in the diesel engines during the depositions of its employees. 

On March 7, the state supreme court reversed that ruling. The court said that, properly interpreted, Sec. 1291(a)(2) creates a general rule against admission at trial of prior testimony from a typical discovery deposition. This general rule can be overcome with strong evidence that the party opposing had an interest and motive for cross-examining the deponent. But here, the court said, the intermediate appellate court placed too much weight on the mere fact that Ford’s interest in the earlier case was the same as in the current litigation — and it placed too little weight on the fact that Ford, as a matter of litigation strategy, had little motive or interest in cross-examining its own witnesses during a discovery deposition.

Official legislative commentary accompanying Sec. 1291 notes that in determining similarity of interest and motive under the statute, inquiry should focus on practical factors, and not simply on any similarity regarding the position of the party in the two settings. “Properly understood, the official comment to section 1291 imposes no categorical bar to admission of deposition testimony from a prior proceeding,” the court wrote. “It simply recognizes that the circumstances surrounding a civil discovery deposition typically do not create an interest and motive for cross-examination by the party opponent similar to that existing at trial.”

The court quoted liberally from trial practice treatises expressing the view that, as a matter of trial strategy, litigators defending depositions of their own clients typically have little to gain from cross-examining their client during a discovery deposition:

“In which situations should you question your client deponent? The best question may be no question — the sooner the deposition is over, the better…. [T]he more questions you ask, the more information you provide the other side; the more questions you ask, the more time the other attorney has to think about what else to ask; the more questions you ask, the more chance the other attorney has to ask still more questions.”

Haydock & Herr, Discovery Practice (2021-1 supp.), Questioning the Deponent, Sec. 18.08.

“Generally, it is not a good idea to cross-examine one’s own client even though counsel has the right to do so. Through counsel’s cross-examination, counsel may give the examining attorney leads or ideas for further areas of inquiry, and damaging admissions may be made.”

Dunne on Depositions in California (2020-2021 ed.), Cross-examining own client, Sec. 7:40.

“Attorneys often decide not to ask questions at depositions of their own clients or witnesses favorable to their side. Since there is no judge or jury present, there is usually nothing to be gained by bringing out favorable testimony via “cross-examination.” Moreover, it may even do harm by “educating” opposing counsel, or by allowing them to ask questions about matters they had forgotten to inquire about.”

Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, Sec. 8:711.

“When determining whether questions of one’s own client should be asked, an attorney must exercise restraint. Any questions asked by the protecting attorney create a risk of additional disclosure. Furthermore, the deponent cannot be expected to respond in a desirable manner. The examiner therefore takes a risk as to what answers will be given. In general, the protecting attorney who asks questions sends signals to the examiner that further information is out there to be gathered.”

Lisnek & Kaufman, Depositions: Procedure, Strategy & Technique (2021-2022 ed.), Rehabilitation — Questioning the Deponent, Sec. 11-10.

The advice set out in these treatises is in line with the official commentary to Sec. 1291 and supports the view that, in the vast majority of cases, the attorney defending a civil discovery deposition will not have a strong interest or motive in cross-examining the deponent. There are too many “practical considerations” during a typical discovery deposition that call for defending counsel to refrain from cross-examination.

Why Are We Taking This Deposition?

The court’s opinion concluded with a lengthy discussion of how trial courts should decide whether to admit into evidence an unavailable witness’s prior deposition testimony under the exception to the hearsay rule set out in Section 1291(a)(2). The discussion is rich with tactical considerations for litigators, containing a number of pointers for steps that they can take to promote — or block — the admission of the deponent’s deposition testimony in subsequent different, but related, litigation:


  • Did the parties intend, at the time of the deposition, that it should serve as trial testimony? Depositions taken for the expressed purpose of preserving testimony for trial create a strong interest and motive for defending counsel to cross-examine the deponent.
  • Did the parties subsequently reach an agreement concerning the use of the deposition at trial in that case or other cases? If the attorney defending the deposition agreed, at the conclusion of the deposition, that it could be used in lieu of trial testimony in that particular case, then an inference arises that the attorney had a sufficient interest and motive to cross-examine the witness during the deposition.
  • What were the key “practical considerations” that likely guided defending counsel’s decision to forego cross-examination? Practical considerations for why defending counsel declined cross-examination are more important than the mere similarity of legal positions in related litigation. The court listed several:
  1. The timing of the deposition within the context of the litigation. A deposition taken late in litigation (e.g., in advance of a mediation or settlement conference) may create an incentive for defending counsel to cross-examine the deponent.
  2. The relationship of the deponent and the opposing party. How close is the relationship between the deponent and the defending attorney’s client? The defending attorney may have a relatively stronger interest to cross-examine a former employee or estranged relative of the client than, say, a corporate officer.
  3. The anticipated availability of the deponent at trial. If the deposition was taken because the deponent was in ill health or not subject to subpoena, or for some other reason not likely available at trial, then these circumstances would put defending counsel on notice that the deposition might serve as a proxy for substantive testimony at trial.
  4. Conduct at, and surrounding, the deposition — and the degree of any examination conducted by the opposing party. Statements during the deposition that the testimony was “for the jury” or actual cross-examination undertaken by defending counsel may create an inference that defending counsel had a strong interest and motive for cross-examination.
  5. The particular designated testimony. Counsel seeking to overcome a Sec. 1291(a)(2) hearsay objection may be able to demonstrate that defending counsel had an interest and motive to cross-examine the deponent with respect to certain critical parts of the deponent’s testimony.
  6. “Similarity of position.” The court said that this is a relevant — but weak — factor and that determining defending counsel’s motive in cross-examination should be heavily based on the practical considerations mentioned above.

Clearly, all of these factors are within the control of litigators at deposition time. In fact, it is fairly routine for counsel to state on the record the uses to which the deposition will — and will not — be put in the current litigation and in future cases.

At least one employment litigation firm believes that depositions taken for the purpose of preserving testimony — i.e., not strictly for discovery purposes — should be used more widely given the new realities of the “gig economy” and the increasing mobility of the current workforce. Attorneys at Epstein Becker Green, in their article Attorneys Need to Depose Like There’s No Tomorrow, predict that job-hopping Generation Z employees will be difficult to locate if they’re needed for workplace litigation. They argue that every deposition should be treated as if it’s for trial purposes. Employers should consider deposing potential witnesses as soon as possible, especially if their testimony is necessary to authenticate key documents or to establish a defense to legal claims. “It is all well and good to keep your strategy secret from opposing counsel, they write, “but it will do you little good if your critical witness becomes unavailable for trial.”

The Epstein Becker attorneys also suggested that employers maintain a list of key employee witnesses and request advance notice of termination or retirement to allow company attorneys time to schedule depositions prior to their departure.

Litigators Take Notice

The Berroteran case has attracted the attention of many law firm bloggers. Articles on Berroteran, written in reaction to the California Supreme Court and California Court of Appeals rulings, include: