Questioning your own witness while defending a deposition is a rare practice. A recent decision out of California’s Second Appellate District will require attorneys to consider doing so more often, especially in repeat cases involving warranty issues or toxic torts.

On October 29, 2019, the California Court of Appeal in the Second Appellate District decided Raul Berroteran II v. Ford Motor Company, No. B296639, 2019 WL 5558830, holding that the trial court abused its discretion in excluding videotaped deposition testimony of the defendant’s witnesses during trial. The testimony at issue, which had been given for other cases involving the defendant, involved the same type of diesel engine in the same model vehicle as the one at issue before the court. The court held that the trial court should have admitted the former deposition testimony because the defendant had the same motive and opportunity to examine its witnesses in a deposition as it would have at trial. The court further stated that the test for admissibility is not whether the party opposing the testimony actually cross-examined the witness, but rather only whether the party “had a motive and opportunity for such cross-examination.” Berroteran, 2019 WL 5558830 at *22. The Second District determined that deposition testimony may be used at trial if the questioner had a “similar motive” during both proceedings. It determined that the defendant in Berroteran had a similar – if not identical – motive to defend itself against the allegations of misconduct and knowledge regarding functionality of the 6.0-liter diesel engine at the heart of all deposition testimonies and of the Berroteran trial.

In determining that there is no categorical bar to admitting deposition testimony at trial, the Second District directly conflicted with the Fourth Appellate District’s decision in Wahlgren v. Coleco Industries, Inc., 151 Cal. App. 3d 543 (1984). In Wahlgren, the court reasoned that “a deposition hearing normally functions as a discovery device” and that it has a “limited purpose and utility” that discourages examination of one’s own witness. Id. at 546-47. And while the Wahlgren court stated that “[a]ll respected authorities” agreed that discovery depositions and trials to resolve issues of liability served separate purposes, it did not cite any authority to back up its proposition. Id.

Berroteran, on the other hand, looked to the plain language of California Evidence Code Section 1291, which does not distinguish between discovery depositions and depositions that may, in fact, be used to resolve issues of liability. In Berroteran, the Second District reasoned that Federal Rule of Evidence 804 and California Rule of Evidence 1291 include similar language regarding the introduction of out-of-court testimony in trial. And since federal courts have not imposed a categorical bar on admitting deposition testimony at trial, the Second District stated that its decision in Berroteran was in line with federal law and that Wahlgren was therefore the anomaly.

California Evidence Code Section 1291 states that former deposition testimony is admissible in the event the party against whom it is offered “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (Cal. Evid. Code § 1291(a)(2).) But Berroteran acknowledged that Section 1291 does not provide a “magic test” to determine whether a party’s interest and motive to cross-examine a declarant during a deposition is similar to such interest and motive the party would have at a hearing. Berroteran, 2019 WL 5558830 at *21 (quoting People v. Ogen, 168 Cal. App. 3d 611, 617 (1985) (internal quotation marks omitted)). The fact that parties and issues are the same does not automatically deem a deposition transcript admissible. Berroteran lifted the test for admissibility from Ogen, stating that “[f]actors to be considered are matters such as the similarity of the party’s position in the two cases, the purpose sought to be accomplished in the cross-examination, and whether under the circumstances a thorough cross-examination of declarant by the party would have been reasonably expected in the former proceeding.” Id. (quoting Ogen, 168 Cal. App. 3d at 617 (internal quotation marks omitted)). Applying these factors to the former deposition testimony in Berroteran, the Second District ran through the facts of each case from which the videotaped deposition testimony came and concluded that the testimony “was on the same issues Berroteran raises in his current lawsuit,” which would give the defendant “a similar motive to disprove the allegations of misconduct, and knowledge, all of which centered around the” same model of at-issue engine. Id. at *25.

Conflicts among California’s district courts are rare. The Second District acknowledged as much in the first paragraph of its opinion, stating that this case “puts us in the unenviable position of disagreeing with our sister court.” 2019 WL 5558830 at *2. The Second District covers four Southern California counties: Los Angeles, Ventura, Santa Barbara, and San Luis Obispo. The Fourth District covers six counties, also in Southern California: San Diego, Imperial, Orange, San Bernardino, Riverside, and Inyo. The California Supreme Court typically resolves conflicts that arise between district courts. While this conflict has not yet been taken up by the Supreme Court, it would be safer to bet that it would uphold Berroteran – as opposed to Wahlgren – if it did decide the issue, since Berroteran’s reasoning is more closely aligned with the language of the Federal Rules of Evidence.

The potential implications of the Berroteran decision are widespread, specifically in cases involving parties and witnesses who may be unavailable by the time trial begins, such as asbestos and talc litigation. In a single case, defendants will often know whether a deponent will be available for trial. But that is more difficult to predict if deposition testimony can be admitted in multiple, and future, cases against that same defendant. The Berroteran decision may also disproportionately impact warranty and lemon law cases such as the one at issue in Berroteran itself, where plaintiffs may assert similar allegations regarding the same vehicles against the same manufacturer. While the practical impact of Berroteran is not yet known, one thing is clear: defendants across California will no longer be able to rely on Wahlgren to categorically exclude prior deposition testimony at trial under Section 1291.

In the wake of Berroteran, attorneys may want to consider whether to question their own witnesses while defending depositions beyond the normal practice of correcting for factual errors in testimony. This will require advance preparation – both on the attorney’s part and on the witness’s part – to ensure the transcript will advance the present case, and potential future similar cases against the same defendant, if and when read during trial. Defendants may consider making limited points at depositions that they would normally save for trial.

And what will happen to deposition testimony taken in reliance on Wahlgren, prior to the decision in Berroteran? As with all legal shifts, only time will tell.