Admission of Deposition Testimony from a Prior Action in Federal Court Proceedings

Discovery is an important and essential tool in civil litigation. "Depositions can save the time, effort and money of litigants and help expedite trials." Hub v. Sun Valley Co., 682 F.2d 776, 778 (9th Cir. 1982). Admitting deposition testimony from prior proceedings can help facilitate these goals. Moreover, the point of admitting deposition testimony from prior proceedings is to increase efficiency at trial, without jeopardizing accurate fact finding.Id.

Out of court statements offered for the truth of the matter asserted are prohibited, absent some exception. Fed. R. Evid. 801; Fed. R. Evid. 802. As a general matter, deposition testimony would be prohibited as hearsay. See e.g. Fed. R. Evid. 802. Under certain circumstances, however, a party will be permitted to enter into evidence deposition testimony from a prior proceeding. Rule 32(a)(8) of the Federal Rules of Civil Procedure governs admission of deposition testimony in federal proceedings. Fed. R. Civ. P. 32. Rule 32(a)(8) of the Federal Rules of Civil Procedure and Rule 804(b)(1) of the Federal Rules of Evidence set forth the conditions under which prior deposition testimony may be admitted into evidence in a subsequent action. Id.; Fed. R. Evid. 804(b)(1).

Rule 32 and Rule 804 provide alternative grounds for admissibility. 7, James Wm. Moore et Al., Moore's Federal Practice § 32.27 (2013); 5 B. Weinstein and M.A. Berger, Weinstein's Federal Evidence § 804.04[1][b] (2013); J. Randall Coffee, Admissibility of Prior-Action Depositions and Former Testimony Under Fed. R. Civ. P. 32(a)(4) and Fed. R. Evid. 803(b)(1): Courts Differing Interpretations , 41 Wash. & Lee. L. Rev. 155, 160 (1984). Both rules serve as independent exceptions to the rule against hearsay. SeeFed. R. Evid. 802 (citing Fed. R. Civ. P. 32 as an example of a statutory exception to the rule against hearsay); Fed. R. Evid. 804 (providing for exceptions to the rule against hearsay where witness is unavailable); Ureland v. U.S., 291 F.3d 993, 996 (7th Cir. 2002) (holding Rule 32 is an independent hearsay exception). A party does not have to satisfy both Rule 32 and Rule 804: a party only needs to satisfy either Rule 32 or Rule 804. Coffee, supra at 160. The provisions of Rule 32 and Rule 804 are cumulative. Id.

Federal Rule of Civil Procedure 32

Rule 32 provides one method by which a party may enter into evidence deposition testimony from a prior proceeding. Rule 32 provides: "[a]t a hearing or trial, all or part of a deposition may be used against a party on these conditions: (A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8)."

Fed. R. Civ. P. 32(a)(1). Pursuant to Rule 32(a)(1)(C), the provisions provided for in Rule 32(a)(2)-(8) must be satisfied. This article focuses on the requirements for admitting deposition testimony from a prior proceeding for substantive purposes.

Rule 32 provides a distinction based upon whether the deposition testimony is that of a party or non-party. Compare Fed. R. Civ. P. 32(a)(3) with Fed. R. Civ. P. 32(a)(4). The deposition of an adverse party may be used for any purpose, regardless of availability. Fed. R. Civ. P. 32(a)(3). However, if the deponent is a non-party, he must be unavailable in order for the deposition to be used for any purpose, other than impeachment or as otherwise provided in the Federal Rules of Evidence. Fed. R. Civ. P. 32(a)(4). This rule implements the court's preference for live testimony. Coffee, supra at 160. Rule 32(a)(4) provides the circumstances that will make a witness unavailable and states as follows: "[a] party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity or imprisonment; (D) that the party offering the deposition could not procure the witness's attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirable – in the interest of justice and with due regard to the importance of live testimony in open court – to permit the deposition to be used." Fed. R. Civ. P. 32(a)(4).

Rule 32(a)(8) addresses when deposition testimony from a prior proceeding will be admissible. Fed. R. Civ. P. 32(a)(8). It states as follows: "[a] deposition lawfully taken and, if required, filed in any federal – or state – court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence. Id. Under a literal interpretation of the rule, the actions must involve the same subject matter and be between the same parties. See id. However, not all courts have resolved to interpret the rule so strictly. What the rule requires has been a subject of much discussion. The "same subject matter" and "same parties" requirements have been subject to both narrow and expansive constructions by the courts.

The predominant approach among federal courts is to adopt a liberal interpretation. Hub, 682 F.2d at 778; Moore's Federal Practice § 32.63[1]; Coffee, supra at 167. "The accepted inquiry focuses on whether the prior cross-examination would satisfy a reasonable party who opposes admission in the present lawsuit." Acme Printing Ink Co. v. Menard, Inc., 812 F.Supp. 1498, 1523-24 (E.D. Wis. 1992) (citing Hub, 682 F.2d at 778). This line of authority requires a substantial identity of issues and the presence of an adversary with the same motive to cross-examine the deponent. Id.; Ikerd v. Lapworth, 435 F.2d 197, 205 (7th Cir. 1970); Acme Printing Ink Co., 812 F.Supp. at 1523-24 (citingHub, 682 F.2d at 778). Interpreting the rule liberally highlights the twin goals of fairness and efficiency. Hub, 682 F.2d at 778.

In Rule v. Int'l Ass'n of Bridge Structural & Ornamental Ironworkers, Local Union No. 396, the court held that substantial identity of issues and parties existed. 568 F.2d 558, 568 (8th Cir. 1977). The plaintiffs had sued three defendants (D1, D2, and D3) for racial discrimination in employment. Id. at 561. Previously, the U.S. Department of Justice had filed suit against D1 and D2 regarding racial discrimination. Id. at 563. The court found a substantial identity of issues existed, because the ultimate issue in both cases was whether the defendants had engaged in discriminatory employment practices. Id. at 568. Additionally, the court found substantial identity of the parties existed, because D3 was represented by the same attorney who represented D1 and D2 in the earlier case, the consent decree in the earlier case placed affirmative duties on D3, and there was a close interrelationship between D1, D2, and D3. Id. In In re Paramount Payphones, Inc., the court refused to find a substantial identity of issues, because when the depositions were taken in the earlier case, the case primarily involved fraud in the marketing and sale of investment units, whereas the later case dealt with preferential and fraudulent transfers after the companies were formed. 256 B.R. 341, 344-45 (Bankr. M.D. Fla. 2000). In Mid-West Nat. Life Ins. Co. of Tenn. v. Brenton, the plaintiff sought to introduce the deposition testimony of a defendant (D1), which was taken before the second defendant (D2) was brought into the case. 1999 F.R.D. 369, 370-72 (N.D. Fla. 2001). The court held that the deposition testimony was inadmissible, because D1 and D2 did not have the same motive to cross examine the deponent. Id. at 371. The deponent was D1, and the court held that an attorney does not have the same motive to cross-examine his client (D1) as a co-defendant (D2) would.Id. These cases reflect the court's liberal application of the "same subject matter" and "same parties" requirements.

Some courts interpret the rule more strictly. See e.g. Alamo v. Pueblo Int'l Inc., 58 F.R.D. 193 (D. P.R. 1972); Wolf v. United Airlines, Inc., 12 F.R.D. 1 (M.D. Penn. 1951). Those courts require strict identity of parties and issues. See Alamo, 58 F.R.D. at 195; Wolf, 12 F.R.D. at 3. The Ninth Circuit highlighted the reasoning behind a court's rejection of the more liberal approach stating, "[n]ot only does the test disregard the 'same parties' requirement in Rule 32(a), but it also fails to take into account the possibility that the prior opponent mishandled the cross-examination." Hub, 682 F.2d at 778 n.* In Wolf, the court refused to admit prior deposition testimony from an action arising out of the same accident, which was the subject of the current action because the parties and issues were not identical. 12 F.R.D. at 3.

Federal Rule of Evidence 804.

Rule 32 governs the admission of deposition testimony in trials and hearings. See Fed. R. Civ. P. 32. Rule 32(a)(8) explicitly provides that depositions from prior actions may be admissible as they are in the Federal Rules of Evidence. Fed. R. Civ. P. 32(a)(8). The legislative history indicates that Rule 804 was exactly what the drafters had in mind when adding that language to Rule 32. See Adv. Comm. Note, Fed. R. Civ. P. 32 ("The final sentence is added to reflect the fact that the Federal Rules of Evidence permit a broader use of depositions previously taken under certain circumstances."). Thus, Rule 804 functions as a second mechanism by which a party may enter deposition testimony from a prior proceeding.

In order for Rule 804 to apply, the declarant must be unavailable as provided for in Rule 804(a). Fed. R. Evid. 804(a). Rule 804(a) provides that a witness is considered to be unavailable if the witness: (1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means to procure (a) the declarant's attendance, in the case of a hearsay exception under Rule 805(b)(1) or (5); or (b) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 805(b)(2), (3), or (4). Fed. R. Civ. P. 804(a).

Once the declarant is shown to be unavailable, the following former testimony will be admissible: Testimony that (a) Was given as a witness at a trial, hearing or lawful deposition, whether given during the current proceeding or a different one; and (b) Is now offered against a party who had – or in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross-, or redirect examination. Fed. R. Evid. 804(b)(1). The relevant provisions to analyze are whether the testimony is being offered against a party or predecessor in interest to the relevant action and whether the party had an opportunity and similar motive to cross-examine the deponent.

First, it must be determined whether the party against whom the evidence is being offered is the same party or a predecessor in interest that was involved in the earlier deposition. Weinstein's Federal Evidence § 804.04[4][a]. The definition of "predecessor in interest" has been an important topic of discussion and resulted in a number of interpretations by various courts. 2 McCormick on Evidence § 303 (6th ed.).

One source of confusion is the legislative history behind the rule. McCormick on Evidence § 303. As sent to Congress by the Supreme Court, Rule 804(b)(1) would have explicitly permitted prior testimony if the party against whom that testimony was offered, or a party with similar motive and interest, had an opportunity to examine the witness. Adv. Comm. Note, Fed. R. Evid. 804(b)(1); McCormick on Evidence § 303. However, the Judiciary Committee rejected this formulation on the grounds of fairness and substituted a requirement that "the party against whom the testimony is now offered, or in a civil action or proceeding a predecessor in interest, [have] a similar motive" to examine the witness. House Comm. on Judiciary, H.R. Rep. No. 650, 93d Cong., 1st Sess. 15 (1973); McCormick on Evidence § 303.

A variety of approaches have been taken when analyzing who is a "predecessor in interest," under Rule 804(b)(1).See Mark Lawrence, The Admissibility of Former Testimony Under Rule 804(b)(1): Defining a Predecessor in Interest, 42 U. Miami L. Rev. 975, 987-1006 (1988) and McCormick on Evidence § 303 for a more thorough description of the approaches adopted. Some courts have adopted a narrow interpretation of the term, as evidenced by In re Screws Anti-Trust Litig., 526 F.Supp. 1316, 1318-19 (D. Mass 1981). There, the court rejected admission under 804(b)(1) of prior trial testimony from a criminal trial. Id. at 1319. The previous criminal trial and current civil trial involved the same circumstances. Id. at 1317-19. The court refused to admit the testimony, finding that the parties were not "predecessors in interest." Id. Specifically, the court rejected a similar motive test to define predecessor in interest. Id. at 1318. Another approach adopted by some courts is referred to as the "community of interest" approach. See Lloyd v. Am. Export Lines, Inc., 580 F.2d 1179 (3rd Cir. 1978). Under the "community of interest" approach, a party will be found to be a "predecessor in interest" where there was a sufficient community of interest shared between the two. Id. at 1186-87. In Lloyd, the court held that the third party defendant and the Coast Guard shared a sufficient community of interest where the Coast Guard disciplinary action and civil suit arose from the same incident. Id. at 1182-87. Some courts have adopted a more expansive approach that a party will be deemed to be a "predecessor in interest" if "it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination." Dykes v. Raymark Indus., Inc., 801 F.2d 810, 816 (6th Cir. 1986). In Dykes, prior deposition testimony was admitted against a defendant who was not a party to an earlier proceeding because the defendant to the earlier proceeding had a similar motive in cross-examining the expert. Id. at 817.

Next, the court must determine whether the party had a similar motive to develop the testimony by direct, cross-, or redirect examination. Weinstein's Federal Evidence § 804[5]. "Similar motive does not mean identical motive." United States v. Miles, 290 F.3d 1341, 1352-53 (11th Cir. 2002); see also U.S. v. Salerno, 505 U.S. 317, 326 (1992) (Blackmun, J. concurring). "This inquiry is inherently factual, depending in part on the similarity of the underlying issues and on the context of the questioning." United States v. Kennard, 472 F.3d 851, 855 (11th Cir. 2006); Weinstein's Federal Evidence § 804[5]. The test turns not only on whether the two questioners are on the same side, "but also on whether the questioner had a substantially similar interest in asserting that side of the issue." United States v. DiNapoli, 8 F.3d 909, 912-13 (2d Cir. 1993). Therefore, the questioner's degree of interest plays an important role. Id.Changing the theory of the case is unlikely to result in the court finding different motives exist. Miles, 290 F.3d at 1353 (holding that even though the government offered different theories of conspiracy in the trials, both cases offered conspiracy theories, and thus, the defendant's motive was the same). Similarly, an added issue in the case will not be material, so long as the deposition testimony relates only to the common issue. Weinstein's Federal Evidence § 804[5]. However, if a different cause of action is involved or there is a discrepancy in the financial stakes of the case, a court may find that similar motives do not exist. Id. In Hendrix v. Raybestos-Manhattan, Inc., a defendant in an earlier and later case sought to preclude the use of deposition testimony from the earlier case, because he claimed to not have had the same motive to cross-examine the witness in both cases. 776 F.2d 1492, 1506 (11th Cir. 1985). The court rejected the defendant's assertion, holding that because the claimants were both asbestosis victims seeking compensation for exposure to asbestos dust, the motive would have been the same and thus a similar motive existed. Id.

Conclusion

It is clear that deposition testimony from prior proceedings is admissible in certain circumstances. However, the circumstances for admissibility are still murky. The question is open of when exactly the "same parties" and "same subject matter" requirements will be met under Rule 32(a)(8). Similarly, courts have not reached a consensus on the meaning of a "predecessor in interest," under Rule 804(b)(1). Therefore, a party should be aware of the options for admissibility under both rules and the various interpretations the courts apply.

Republished with permission. This article first appeared in DRI Today on July 31, 2013.