Use of Depositions at Trial Might Shorten Process and Reduce Costs

While it is not certain, the Californian Decision in Raul Berroteran II v. Ford Motor Company, might be the harbinger that could change litigation forever. It basically stands for the proposition that if you had a chance to cross examine the witness and didn’t, you waived it and the deposition is admissible at trial.

Bill Paatalo brought this to my attention. He asks whether it is time  to dust off the depositions of rogue robo witnesses like Riley and DeMartini and I would add Reyes and others. My answer is necessarily vague as in “I don’t know.” But yes it is time to dust off those depositions and they might well be admissible in lieu of live testimony. This is an evolving area of the procedural law.

seehttps://www.natlawreview.com/article/deposition-testimony-takes-stand-california

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. [e.s.]

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