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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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Horvitz & Levy obtained a ruling from the Supreme Court that limits the circumstances under which deposition testimony obtained in one case can be introduced against a party in a later case, an issue institutionally important to entities that must defend serial litigation.

Ford was the defendant in a nationwide putative class action filed in Illinois that involved alleged defects in a 6.0-liter diesel engine.  After plaintiffs deposed nine of Ford’s current and former employees, the class action settled, as usually occurs with class actions.  Berroteran, a member of the class, opted out of the class immediately prior to the settlement and several years later filed an individual claim against Ford in California, alleging that his vehicle suffered from defects that were at issue in the class action.  To support his claim, he proposed introducing selected hearsay portions of the depositions taken in the class action.

The trial court ruled the testimony was inadmissible hearsay, not subject to any exception.   The court relied on Evidence Code section 1291(a)(2), which provides that deposition testimony taken in one case is not admissible against a party to the earlier proceeding in subsequent litigation unless the party proffering the evidence shows that 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 later trial.  Berroteran petitioned for writ relief from the pretrial evidentiary ruling, and the Court of Appeal reversed, holding that Ford did not dispel a presumption that it had the same motive during the out-of-state class action depositions years earlier to disprove the class action plaintiffs’ allegations as it had to disprove Berroteran’s individual claims in the later California trial. 

Horvitz & Levy persuaded the California Supreme Court to review that opinion and reverse it.   The Court held that courts should assume a party does not have an interest and motive to cross-examine a witness at a deposition where the witness was an employee of or otherwise aligned with the objecting party.  Under those circumstances, section 1291(a)(2) creates a general rule against admitting testimony from a prior deposition.  The party seeking to introduce the deposition testimony bears the burden of establishing that the conditions exist for admissibility, and cannot satisfy its burden merely by demonstrating that the issues in the two proceedings are similar.