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Does the Berroteran II decision affect how we should notice depositions of parties to our case?

May 9, 2022 Blog

March 7, 2022, the California Supreme Court decided Berroteran II v. Superior Court, cited as 12 Cal.5th 867.

The holding is important, but particular as it relates to whether a party can use a deposition of a party who is unavailable for trial, per California Evidence Code 1291(a)(2). Prior deposition testimony would be hearsay, but hearsay exceptions and other rules may still permit use of the depo transcript.

So, starting with Evidence Code section 1291(a)(2). This code “makes former testimony hearsay evidence admissible upon three conditions: The declarant is unavailable; the opposing party was a party to prior litigation; and the opposing party had opportunity to cross-examine with a similar motive and interest.”

The general holding of Berroteran II, the Court “conclude[s] that the statute [California Evidence Code 1291(a)(2)] articulates a general rule (not a categorical bar) against admission at trial of prior testimony from a typical discovery deposition.”

However, the Court then gives factors to consider when serving the notice of deposition of a party to your case. Specifically, the question is whether your notice of deposition has given the proper “interest and motive” similar to what your interest and motive may be for this witness deponent at trial.

What factors did the Court give us here?

The factors per Berroteran II are:

  1. “whether the parties intended, at the outset, that the deposition serve as trial testimony.” “As an initial matter, the court should determine whether the parties manifested an intent to take the deposition for the purpose of preserving the witness’s testimony as a proxy for trial testimony.”
  2. “whether the parties subsequently reached agreement concerning use of the deposition at trial in that case, or in other cases. “

The Court then gives “key ‘practical considerations’”:

  1. “The timing of the deposition within the context of the litigation, and special circumstances creating an incentive for cross-examination.” “[P]arties may not be in a position to conduct cross-examination early in the discovery process.” The Court also states “[c]ross-examination at trial is typically undertaken only after discovery is complete, when documents and testimony available to the parties have become known. Such cross-examination is generally conducted using the documents produced in discovery, prior trial testimony, and deposition testimony of both the witness being examined and other deposed persons.”
  2. The relationship of the deponent and the opposing party.
  3. The anticipated availability of the deponent at trial in the proceeding in which the deposition was taken, and the statutory context.
  4. Conduct at, and surrounding, the deposition — and the degree of any examination conducted by the opposing party.
  5. The particular designated testimony.
  6. “Similarity of position” of other lawsuits.

I’ll leave you with one last query: can I just give notice the depo will be video-recorded?

I’m not here to give legal advice, but give ye olde reply: “it depends.” As the Court here says “[s]tanding alone, the videotaping of a deposition may not trigger a motive and interest to cross-examine, although it may be a relevant factor in combination with other circumstances.” Although per California Code of Civil Procedure 2025.220(a)(5), if you are video recording the depo, you must give proper notice.