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.


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.]

3 Responses

  1. If we are not a party-how did they originate? The investment pool is directly related to “our” payment stream. Without us, there would be nothing to invest in…these courts, judges and lawyers are complicit in the scheme and in my humble opinion, even though we may not be party to their [direct] contract, we are the entire basis for investments, bonds and certificates. “we are the structure” the entire reason they have anything to represent-sell. The very foundation of the entire Ponzi scheme….Grrrrrrrrr

  2. I tend to agree with you Bob G – as to not working in RMBS litigation. But my reason is different — it is that all is up to judge. In order for real precedent case law, it must be backed up in other courts. However, Bob G., I do not think these crisis RMBS trusts are “distinguishable entities.” They are NOT entities at all — if they were – the trustee is the legal holder. However, trustee is no where to be found. Also, please look at the structure of many of these so-called “trusts” — they were not in compliance with “pilot” Regulation AB rules as set forth by the government quite some time ago. And – that is the real reason that they did not survive.

    People have to read the prospectus, and rules and regulations – not just pooling and servicing agreements. But, of course, many courts still say – the borrower is not a party. Then, who the heck are we???

  3. I don’t think this will work in RMBS litigation. Ford’s diesel engines come off an assembly line. They are indistinguishable one from another. Each RMBS trust even with the same trustee, is still a distinguishable entity.

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