Subject: Depositions

The California Supreme Court Shrugs Off a Settlement to Provide Important Guidance on Admissibility of Former Deposition Testimony by Company Witnesses

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We reported back in December [California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions] on a case then pending before the California Supreme Court, Berroteran v. Superior Court. The case involves the former testimony exception to the hearsay rule, Evidence Code section 1291(a)(2), as applied to the deposition testimony of company witnesses taken in prior litigation. [Disclaimer: I wrote an amicus brief in support of the petition for review and another on the merits.]

Oral argument did not go well for the plaintiff. Consequently, it was not surprising that within a few days the parties notified the Court that they had reached a settlement. The Supreme Court could have dismissed the appeal at that point and left the issue unresolved. But because its core mission is “to secure uniformity of decision” and to settle important questions of law, Cal. Rule of Court 8.500(b), the Court went ahead and decided the appeal. 2022 WL 664719 (Cal. Mar. 7, 2022). And, as Larry David might say, the decision is pretty, pretty good.

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Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers

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For many litigators, sworn testimony today looks much different than it did two years ago. As the COVID-19 pandemic has required parties to limit travel and in-person proceedings, remote testimony for depositions, arbitrations and even trials has become the rule rather than the exception. With this transition, litigators have been confronted with unique circumstances and felt compelled to ask questions to confirm that the witness’s testimony is that of the witness, and only the witness. For example, is anyone else present in the room with the witness? Does the witness have any unauthorized lines of communication that could be used while the sworn testimony is proceeding? It has now become critical to ask a witness to swear under oath that there is no one else in the room with the witness and that no person is authorized to communicate with the witness during her or his testimony. Several recent decisions solidify this practice point and illustrate the consequences to litigants and lawyers when a witness surreptitiously communicates with others during the course of remote testimony.

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California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions

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The California Supreme Court will soon decide an evidentiary issue that could significantly impact how company witnesses are defended at deposition.

The Court heard argument December 7 in Berroteran v. Ford Motor Co., No. S259522, a class action opt-out case alleging consumer fraud claims based on purported defects in a Ford truck engine. The appeal involves interpretation and operation of California Evidence Code section 1291 — an exception to the hearsay rule for former testimony — and specifically how it applies to the deposition testimony of company employees taken in prior cases.

Ford moved in limine to exclude as hearsay the deposition testimony of nine current and former Ford employees taken in similar cases. In response, Plaintiff relied on section 1291.

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Georgia Supreme Court Will Address the Problem of Abusive “Apex” Depositions

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A frequent and vexing issue for corporate defendants, in products liability and other cases, is the demand for a deposition of the company’s CEO or depositions of other senior executives. Even when these executives were not involved in the relevant events and have no relevant personal knowledge, plaintiffs push for their depositions to gain leverage for settlement or for other illegitimate reasons.

Many federal courts provide protection from these demands by applying the “apex doctrine,” a rule that usually shields high level officers if they have no unique personal knowledge or involvement and the relevant information is available from other sources.  These courts have recognized that corporations may be involved in many lawsuits and forcing busy executives to testify when they have no significant personal knowledge or involvement would impair their ability to manage the corporation’s business.

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