Washington and Lee Law Review
Volume 41 | Issue 1

Article 8

Winter 1-1-1984

Admissibility of Prior-Action Depositions and
FormerTestimony Under Fed. R. Civ. P. 32(a)(4)
andFed. R. Evid. 804(b)(1): Courts
DifferingInterpretations
J. Randall Coffey
Washington and Lee University School of Law

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Recommended Citation
J. Randall Coffey, Admissibility of Prior-Action Depositions and FormerTestimony Under Fed. R. Civ. P.
32(a)(4) andFed. R. Evid. 804(b)(1): Courts DifferingInterpretations, 41 Wash. & Lee L. Rev. 155
(1984), https://scholarlycommons.law.wlu.edu/wlulr/vol41/iss1/8
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ADMISSIBILITY OF PRIOR-ACTION DEPOSITIONS
AND FORMER TESTIMONY UNDER FED. R. CIV. P.
32(a)(4) AND FED. R. EVID. 804(b)(l): COURTS
DIFFERING INTERPRETATIONS
The common-law hearsay rule excludes from evidence out-of-court
statements offered to prove the truth of the facts asserted therein. 1 The Federal
l. See C. McCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 244 (2d ed. 1972); 5 J.
WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1364 (rev. ed. Chadbourn 1974); see also
Tappan v. Beardsley, 77 U.S. (10 Wall.) 427,435 (1870) (depositions incorporated into trial record
not admissible in subsequent suit when witness is competent and party can procure witness); Rutherford v. Geddes, 71 U.S. (4 Wall.) 220, 224 (1866) (court properly excluded deposition as hearsay
when party had shown no reason for failing to produce witness).
The rationale for the exclusion of certain statements as hearsay rests upon the conviction
that such testimony is less reliable than a witness' testimony under oath in the presence of the
trier of fact and subject to cross-examination. See C. McCORMICK, supra§ 245, at 581; Martin,
The Former Testimony Exception in the Proposed Federal Rules of Evidence, 51 IowA L. REV.
547, 550 (1972) [hereinafter cited as Former Testimony Exception] (oath, physical presence, and
opportunity to cross-examine are traditionally indications of reliability); Strahorn, A Reconsideration
of the Hearsay Rule and Admissions, 85 U. PA. L. REv. 484, 484 (1937) (oath, perjury penalty,
sequestration, discovery, publicity, confrontation, and cross-examination are conditioning devices
that improve trustworthiness of witness' testimony). The purpose of the oath is to impress upon
the witness the solemnity of the occasion and the importance of testifying truthfully. See Morgan,
Hearsay Dangers and the Application of the Hearsay Concept, 62 HARV. L. REV. 177, 182 (1948)
(purpose of oath is to produce what witness believes is exact truth); White, Oaths in Judicial
Proceedings and Their Effect Upon the Competency of Witnesses, 42 AM. L. REG. (N.S.) 373,
374-85 (1903) (religious implications of oaths). The oath is important both as an indication of
the religious obligation to speak truthfully and in order to indicate to the witness the possibility
of criminal punishment for perjury. C. McCORMICK, supra, § 245, at 582. The presence of the
witness at trial provides an opportunity for the trier of fact to observe the demeanor of the witness
and to judge the witness' veracity. See FED. R. EVID. 804 advisory committee note (demeanor
confers depth and meaning upon oath and cross-examination); 5 J. WIGMORE, supra, § 1395(2)
(presence of witness allows judge and jury to observe witness' deportment while testifying and
has subjective moral effect upon witness); Morgan, supra, at 179 (witness' presence at trial allows
trier of fact to judge trustworthiness of witness); see also Universal Camera Corp. v. NLRB,
340 U.S. 474, 495-96 (1951) (demeanor of witness furnishes valuable clues to trier of fact and
opponent). In addition, cross-examination permits the adversary to expose deficiencies in the
witness' sincerity, memory, perception, and choice of language. See FED. R. Evm. 804 advisory
committee note (opportunity to observe demeanor confers depth on oath and cross-examination);
Morgan, supra, at 179 (same); see also Ohio v. Roberts, 448 U.S. 56, 73 (1980) (opportunity
to cross-examine is indication of reliability); In re Paducah Towing Co., 692 F.2d 412, 418 (6th
Cir. 1982) (same); United States v. Amaya, 533 F.2d 188, 191 (5th Cir. 1976) (opportunity to
cross-examine renders former testimony admissible in criminal proceeding), cert. denied, 429 U.S.
1101 (1977); United States v. Wingate, 520 F.2d 309, 316 (2d Cir. 1975) (prior testimony is not
admissible against government when government lacked meaningful opportunity to cross-examine),
cert. denied, 423 U.S. 1074 (1976). Dean Wigmore referred to cross-examination as both "a distinctive and vital feature of our law" and as "the greatest legal engine ever invented for the discovery
of truth." 5 J. WIGMORE, supra,§ 1367, at 32. Consequently, Wigmore viewed the hearsay rules
as a means of requiring cross-examination of testimonial assertions, with the attendant requirements
of oath and physical presence as merely incidental. Id. § 1362, at 10.

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Rules of Evidence likewise exclude hearsay statements unless those statements
satisfy one of the exceptions to the hearsay rule that the common-law recognized
and that the Federal Rules of Evidence adopted. 2 For example, former
testimony, in the form of statements that a witness made at a deposition or
previous hearing, is one of the exceptions to the hearsay rule that the Federal
Rules of Evidence incorporated from the common law. 3 Rule 804(b)(l) of the
Federal Rules of Evidence4 currently governs the conditions under which former
testimony is admissible into evidence in a subsequent action. In addition to
rule 804(b)(l), rule 32(a)(4) of the Federal Rules of Civil Procedure 5 permits
2. See FED. R. Evm. 802 (hearsay inadmissible except as provided under Federal Rules
of Evidence); see also FED. R. Evm. 802 advisory committee note (Federal Rules of Evidence
follow common-law approach to hearsay and hearsay exceptions); FED. R. Evm., Introductory
Note: The Hearsay Problem (same); Former Testimony Exception, supra note 1, at 550 (Federal
Rules of Evidence retain common-law tradition of excluding hearsay evidence unless evidence
falls within exception to hearsay rule). The Federal Rules of Evidence defme hearsay as a "statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence
to prove the truth of the matter asserted." FED. R. EVID. 80l(c). Professor McCormick observed
that the value of hearsay rests upon the credibility of the out-of-court declarant. C. McCORMICK,
supra note 1, § 246, at 584.
Absent the qualifications of oath, physical presence of the witness, and opportunity to crossexamine, statements of a witness are hearsay and are inadmissible unless the evidence is either
necessary or has other circumstantial guarantees of trustworthiness that establish the reliability
of the evidence. See C. McCORMICK, supra note 1, § 253; 5 J. WIGMORE, supra note 1, §§ 1420-23;
Former Testimony Exception, supra note 1, at 550. Using the requirements of necessity and trustworthiness, common law developed several exceptions to the hearsay rule to allow the admission
of reliable evidence. See C. McCORMICK, supra note 1, § 253. The hearsay exceptions that developed
at common law generally require the "unavailability" of the declarant before evidence otherwise
qualifying under one of the hearsay exceptions is admissible. See Comment, Hearsay Under the
Proposed Federal Rules: A Discretionary Approach, 15 WAYNE L. REv. 1079, 1201 (1969)
(unavailability of declarant creates necessity for hearsay exception for former testimony); see
also infra notes 20-29, & 36-40 and accompanying text (unavailability requirements under modem
practice). Historically, the unavailability requirements developed in connection with each of the
specific exceptions to the hearsay rule. See FED. R. Evm. 804 advisory committee note; C. McCORMICK, supra, § 253, at 608. The common law recognized death, absence, physical or mental disability,
failure of memory, exercise of privilege, refusal to testify, and supervening disqualification of
the declarant as forms of unavailability. See C. McCORMICK, supra note 1, § 253, at 609-12.
The exceptions to the hearsay rule at common law included declarations against interest,
dying declarations, statements of pedigree and family history, and former testimony. C. McCORMICK, supra note 1, § 253, at 608 n.20. These hearsay exceptions satisfy the evidentiary requirement of reliability since such evidence either is necessary, in the sense that a failure of justice
may result from loss of the testimony, or is trustworthy. See 5 J. WIGMORE, supra note 1, §§
1421-22. Thus, when a declarant was "unavailable" and the testimony qualified under one of
the exceptions to the hearsay rule, the declarant's hearsay statement was admissible into evidence.
See C. McCORMICK, supra note 1, § 253, at 608-13.
3. See FED. R. EVID, 804(b)(l) (hearsay exception for former testimony); C. McCORMICK,
supra note 1, § 255 (conditions for admission of former testimony into evidence); Note, Former
Testimony: A Comparison of the California and Federal Rules of Evidence, 9 U.C.D. L. REv.
167, 167-69 (1976) (same); supra note 2 (common-law hearsay exceptions).
4. FED. R. EVID. 804(b)(l); see infra notes 47-74 and accompanying test (discussing provisions of FED. R. EVID. 804).
5. FED. R. CIV. P. 32(a)(4); see infra notes 7-35 and accompanying text (discussing provisions of FED. R. C!v. P. 32(a)). The Supreme Court amended rule 32 of the Federal Rules of

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the admission of prior action depositions 6 into evidence in a subsequent action
under certain circumstances.
Rule 32(a)(4) provides for the use of depositions from a prior action when
the subsequent action involves the "same subject matter"' and the "same parties or their representatives or successors in interest. " 8 If a subsequent action
Civil Procedure in 1970 when the Court reorganized the discovery rules. See 4A J. MooRE, MOORE'S
FEDERAL PRACTICE 1 32.01[3], at 32-5 (2d ed. 1981). The reorganization of the discovery rules
shifted subdivisions (d), (e), and (f) of rule 26 of the Federal Rules of Civil Procedure to rule
32. Id. The text of rule 32(a)(4), previously rule 26(d)(4), remains substantially the same as rule
26(d)(4) prior to the reorganization of the Federal Rules of Civil Procedure. Id. at 32-36.
6. See FED. R. Crv. P. 32. Rule 32 provides only for the use of depositions in court proceedings but the courts have treated the term "deposition" as including both deposition testimony
and testimony from a former hearing since, in principle, no distinction between the two forms
of testimony exists. See 5 J. WIGMORE, supra note 1, § 1401, at 201-202; 552 F.2d 711, 713 (6th
Cir. 1977) (trial transcript admissible as deposition under rule 32); Castilleja v. Southern Pac.
Co., 445 F.2d 183, 186 (5th Cir. 1971) (trial transcript admitted under rule 26(d) [now rule 32(a)J
since trial transcript is equivalent to deposition for purposes of Federal Rules of Civil Procedure).
7. FED. R. Crv. P. 32(a)(4); see infra notes 75-89 and accompanying text (analysis of what
constitutes "same subject matter" under rule 32). Although rule 32(a)(4) of the Federal Rules
of Civil Procedure limits the use of prior action depositions to situations in which an earlier
action involved the "same subject matter" as a later action, courts will look to the issues in
each case rather than strictly to the subject matter to determine whether a prior action deposition
is admissible in a subsequent action. See 8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2150, at 468 (1970). Most courts require only a substantial identity of issues to
satisfy rule 32(a)(4). See, e.g., Rule v. International Ass'n of Bridge, Structural and Ornamental
Ironworkers, Local Union No. 396, 568 F.2d 558, 568 (8th Cir. 1977) (substantial identity of
parties and issues is required for use of deposition from prior action); Batelli v. Kagan & Gaines
Co., 236 F.2d 167, 169 (9th Cir. 1956) (same); Fullerform Continuous Pipe Corp. v. American
Pipe & Constr. Co., 44 F.R.D. 453, 455 (D. Ariz. 1968) (same); Hertz v. Graham, 23 F.R.D.
17, 22 (S.D.N.Y. 1958) (same), afj'd 292 F.2d 443, 447 (2d Cir.), cert. denied, 368 U.S. 929
(1961); cf. Baldwin-Montrose Chem. Co. v. Rothberg, 37 F.R.D. 354,356 (S.D.N.Y. 1964) (prior
action depositions are admissible when both prior and subsequent actions contain common questions of law or fact and substantial identity of issues). Generally, courts have not provided a
fixed standard for determining whether an action satisfies the substantial identity of issue(s) requirement under rule 32(a)(4). See infra notes 75-76 & 88-108 and accompanying text.
8. FED. R. Crv. P. 32(a)(4); see infra notes 75-108 and accompanying text. The "parties"
requirement for the admission of prior action depositions under rule 32(a)(4) has received broad
interpretation from most courts. See Rule v. International Ass'n of Bridge, Structural and
Ornamental Ironworkers, Local Union No. 396, 568 F.2d 558, 568-69 (8th Cir. 1977) (prior opponents with interest to cross-examine as thoroughly as present opponent satisfies "same parties" requirement of rule 32(a)(4)); Ikerd v. Lapworth, 435 F.2d 192, 205 (7th Cir. 1970) (presence
of adversary in prior action with same motive to cross-examine required to admit prior action
deposition in subsequent action); Hertz v. Graham, 23 F.R.D. 17, 22 (S.D.N.Y. 1958) (identity
of interest rather than identity of parties necessary to admit prior action deposition under rule
32(a)(4)), aff'd, 292 F.2d 443, 447 (2d Cir. 1961). But see Alamo v. Pueblo Int'!. Inc., 58 F.R.D.
193, 195 (D.P.R. 1972) (court interpreted rule 32(a)(4) strictly to require complete identity of
issues and parties).
At common law, the parties who offered a prior action deposition into evidence must have
been the same as the parties in the litigation in which the declarant gave the testimony or a party
in the subsequent action must have been in narrowly construed privity with an earlier party.
See 5 J. WIGMORE, supra note 1, § 1388, at Ill. "Privity" at common law concerns "mutual
or successive relationships" to the same property rights. Metropolitan St. Ry. v. Gumby, 99 F.
192, 198 (2d Cir. 1900); see National Lead Co. v. Nulsen, 131 F.2d 51, 56 (3d Cir. 1942) (privily

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meets the requirements of rule 32(a)(4), a party may use depositions from
the former action as provided under rule 32(a)(l)-(3) or as permitted by the
Federal Rules of Evidence. 9
As a threshold requirement, the introductory paragraph of rule 32(a) of
the Federal Rules of Civil Procedure states that a party may use a deposition
only against a party who was present or represented at the taking of the
testimony or who had reasonable notice thereof. 10 Rule 32(a) further provides
that the rules of evidence apply to statements in depositions that a party uses
pursuant to rule 32(a) as though the witness were present and testifying at
the subsequent proceeding. 11
The provisions of rule 32(a)(1) 12 authorize the use of a witness' deposition
by any party for the limited purpose of contradicting or impeaching the subsequent testimony of that witness 13 or for any other purpose that the Federal
Rules of Evidence permit. 14 In contrast, under rule 32(a)(2), 15 a party may
means mutual or successive relationship to same rights of property as "testator and executor,
ancestor and heir, assignor and assignee, grantor and grantee, lessor and lessee"). When a party
was not present in a prior suit or was not in privity with a party in the prior suit, the former
testimony of a witness, in a deposition or otherwise, was inadmissible at common law in the
subsequent action. See Metropolitan St. Ry. v. Gumby, 99 F. 192, 198 (2d Cir. 1900) (prior
action depositions inadmissible unless all parties same in both actions); see also Rumford Chem.
Works v. Hygienic Chem. Co., 215 U.S. 156, 159-60 (1909) (prior action deposition is inadmissible in subsequent action unless parties or privies are present in previous proceeding); Tappan
v. Beardsley, 77 U.S. (IO Wall.) 427, 435 (1870) (depositions from previous suit inadmissible
against one who was neither party nor in privity with party in former action); Rutherford v.
Geddes, 71 U.S. (4 Wall.) 220, 224 (1866) (depositions party took in another suit involving same
subject matter inadmissible if parties were not present or in privity with party to previous suit).
9. FED. R. CIV. P. 32(a)(4); see FED. R. Evm. 802; id. advisory committee note (advisory
committee cites rule 32 as example of hearsay exception under rule 802 of the Federal Rules
of Evidence).
10. FED. R. CIV. P. 32(a); see Klein v. Tabatchnick, 459 F. Supp. 707, 712 (S.D.N.Y.
1978) (waiver of opportunity to cross-examine does not affect admissibility of deposition under
rule 32(a)); Hewitt v. Hutter, 432 F. Supp. 795, 799 (W.D. Va. 1977) (depositions inadmissible
when party-opponent received no notice nor any opportunity to cross-examine), aff'd, 568 F.2d
773 (4th Cir. 1978).
The Supreme Court substituted the phrase "reasonable notice" for "due notice" when the
Court amended rule 32 in 1970. See FED. R. CIV. P. 32; see also 8 C. WRIGHT & A. MILLER,
supra note 7, § 211, at 400-01 nn. 60-62; id. § 2142, at 450 & n.14 (discussing what constitutes
"reasonable notice").
II. FED. R. Crv. P. 32(a); see SEC v. American Realty Trust, 429 F. Supp. 1148, 1178
(E.D. Va. 1977) (even if depositions are admissible under rule 32, statement contained therein
must be admissible under Federal Rules of Evidence); see also S. SALTZBURG & K. REDDEN, FEDERAL
RULES OF EVIDENCE MANUAL 659 (1982 ed.) (sound logic dictates that testimony admitted pursuant to rule 32 also satisfy evidentiary rules as to statements contained therein).
12. FED. R. CIV. P. 32(a)(l).
13. See FED. R. Evm. 80l(d) (permitting use of prior inconsistent statement of witness
as substantive evidence); 4A J. MOORE, supra note 5, 132.03, at 32-16 ("contradicting" in rule
32(a)(l) is synonymous with "impeaching" in rule 32(aXl)).
14. See FED. R. Evm. 801 advisory committee note (1980 amendments) (adding phrase
"or for any other purpose permitted by the Federal Rules of Evidence" intended to reflect broader
use of former testimony permitted by evidence rules).
15. FED. R. CIV. P. 32(a)(2).

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use the deposition of an adverse party for any purpose, even though that
adverse party is present at a subsequent trial. 16 Thus, depositions are admissible under the provisions of rule 32{a)(l) or rule 32(a)(2) irrespective of whether
a court finds that the declarant is available. 17
While rule 32(a){2) allows a party to use substantively an adverse party's
deposition, 18 rule 32(a){3) 19 permits any party to use the deposition of a witness,
whether or not that witness is a party, for any purpose if the party asserting
use of the deposition demonstrates to the court the witness' unavailability within
the meaning of rule 32(a)(3). 20 Unavailability under rule 32(a)(3) includes death
of a witness, 21 absence of more than 100 miles from the trial or hearing 22
age, illness, infirmity or imprisonment, 23 inability to procure attendance of
a witness by subpoena, 24 and other "exceptional circumstances. " 25 By requiring the satisfaction of one of the conditions in rule 32(a)(3) to admit the deposi16. Id.; See Coughlin v. Capitol Cement Co., 571 F.2d 290, 308 (5th Cir. 1978) (refusal
to allow introduction of corporate officers deposition as substantive evidence under rule 32(a)(2)
error but harmless when jury received substance of testimony from another source); Zimmerman
v. Safeway Stores, Inc., 410 F.2d 1041, 1044-45 n.5 (D.C. Cir. 1969) (party may introduce deposition
of opposing party as substantive evidence under rule 32(a)(2) subject to exclusion of irrelevant
or repetitious parts); Community Counseling Serv., Inc. v. Reilly, 317 F.2d 239, 243 (4th Cir.
1963) (deposition of adversary admissible as substantive proof under rule 26(d) [now rule 32(a))
regardless of availability of adversary). Rule 32(a)(2) also permits the use of a deposition of an
officer, director, or managing agent of a public or private corporation for any purpose by an
adverse party. See FED. R. C!v. P. 32(a)(2).
17. See 4A J. MooRE, supra note 5, 1 32.05; at 32-25 (declarant need not be available
for court to allow use of deposition under rule 32(a)(l) or rule 32(a)(2)).
18. See supra notes 16-17 and accompanying text (court allowed substantive use of adverse
party's deposition under rule 32(a)(2)).
19. FED. R. CIV. P. 32(a)(3).
20. Id. A party may use former testimony in a subsequent action for any purpose, as a
matter of right, if the court finds the existence of any one of the five unavailability criteria in
rule 32(a)(3) of the Federal Rules of Civil Procedure. See Wright Root Beer Co. of New Orleans
v. Dr. Pepper Co., 414 F.2d 887, 889 (5th Cir. 1969). The court in Wright Root Beer Co. of
New Orleans v. Dr. Pepper Co. indicated that a trail court has no discretion to admit depositions
conditionally once a party makes a showing of unavailability under rule 32(a)(3)(A). Id. The
Wright Root Beer court's rationale admitting depositions as a matter of right once a party
demonstrates a witness' unavailability presumably would apply to the other provisions under rule
32(a)(3). See Derewecki v. Pennsylvania R.R., 353 F.2d 436, 441 n.7 (3d Cir. 1965) (deposition
freely admissible when party satisfies any unavailability provision of rule 26(d) [now rule 32(a))).
21. FED. R. C!v. P. 32(a)(3)(A).
22. Id. 32(a)(3)(B).
23. Id. 32(a)(3)(C).
24. Id. 32(a)(3)(D).
25. Id. 32(a)(3)(E). Rule 32(a)(3)(E) of the Federal Rules of Civil Procedure requires a party
to apply to the court and give notice to other parties to use a deposition when "exceptional
circumstances" exist. Id. The phrase "with due regard to the importance of presenting the testimony
of witnesses orally in open court" in rule 32(a)(3)(E) serves as a warning that rule 32 does not
condone the practice of trying cases on depositions, such as under the former equity practice.
Id. advisory committee note; see 4A J. MOORE, supra note 5, 1 32.05, at 32-30. Courts of law
and of equity merged when the Supreme Court adopted the Federal Rules of Civil Procedure
in 1938. See FED. R. CIV. P. 1.

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tion of a witness in a subsequent action, 26 rule 32(a)(3) retains the commonlaw requirement of unavailability of a witness as a prerequisite for the substantive use of hearsay testimony. 21 Furthermore, courts consistently have held
that a party may not use a declarant's deposition as substantive evidence unden
rule 32(a)(3) if the witness is available to testify in person. 28 Accordingly, the
unavailability requirement of rule 32(a)(3) is merely a means of implementing
the court's preference for live testimony. 29
The Supreme Court amended rule 32 in 1980 to clarify that depositions
also are admissible under any provision of the Federal Rules of Evidence. 30
The Advisory Committee Notes to the 1980 amendments of rule 32 indicate
that the Committee found that rule 32 needed additional language clarifying
the relationship between rule 32 and the Federal Rules of Evidence. 31 The
Advisory Committee stated that the Court amended rule 32 to reflect the
broader use of depositions that the Federal Rules of Evidence permit under
certain circumstances and to indicate that the Federal Rules of Evidence are
not limitations on the admissibility of depositions under rule 32 of the Federal
Rules of Civil Procedure. 32 Since rule 804 of the Federal Rules of Evidence
also creates a hearsay exception for former testimony, the provisions of rule
32 and rule 804 are therefore cumulative. 33 Thus, former testimony, including
depositions, is admissible as an exception to the hearsay rule if the testimony
satisfies rule 804, even though such testimony falls outside the ambit of rule
32. 34 Concomitantly, deposition testimony also is admissible if that testimony
meets the provisions of rule 32 but not the provisions of rule 804. 35
26. See supra note 20 and accompanying text (former testimony admissible for any purpose
when party satisfies rule 32(a)(3)).
27. See C. McCORMICK, supra note 1, § 253, at 608 n.20.
28. See, e.g., G.E.J. Corp. v. Uranium Aire, Inc., 311 F.2d 749, 755 (9th Cir. 1962) (depositions only admissible under rule 26(d) [currently rule 32(a)] when witness is unavailable or under
"exceptional circumstances"); Hertz v. Graham, 292 F.2d 443, 447-48 (2d Cir.) (prior action
depositions admissible upon showing of unavailability), cert. denied, 368 U.S. 929 (1961); In
re Gilchrist Co., 410 F. Supp. 1070, 1073 (E.D. Pa. 1976) (court properly excluded deposition
absent showing of unavailability); United States v. Empire Gas Corp., 393 F. Supp. 902, 912
(W.D. Md. 1975) (no attempt to make appropriate showing concerning lack of availability); see
also United States v. International Business Mach. Corp., 90 F.R.D. 377, 383 (S.D.N.Y. 1981)
(court determines availability at time of trial rather than at time declarant gave testimony) 8
C. WRIGHT & A. MILLER, supra note 10, § 2146, at 458 n.50 (court decides unavailability at
time party offers testimony into evidence).
29. See FED. R. Evm. 804(b) advisory committee note; see also Salsman v. Witt, 466 F.2d
76, 79 (10th Cir. 1972) (deposition testimony less desirable than oral testimony); Arnstein v. Porter,
154 F.2d 464, 470 (2d Cir. 1946) (courts favor presence of witness if available rather than use
of depositions); Napier v. Bossard, 102 F.2d 467, 469 (2d Cir. 1939) (deposition is second-best
when live testimony is available).
30. See FED. R. CIV. P. 32(a)(l), (4); id. advisory committee note.
31. FED. R. C1v. P. 32 advisory committee note.
32. Id.
33. See 4A J. MOORE, supra note 5, 1 32.02[1], at 32-11 (provisions of rule 32 and rule
804 are independent bases for admission of depositions or former testimony).
34. Id.
35. Id.

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Rule 804 of the Federal Rules of Evidence applies only when the witness
is "unavailable" within the meaning of rule 804(a). 36 Rule 804(a) defines
unavailability as, in addition to death and absence in rule 32(a)(3), claim of
privilege, 37 refusal to testify, 38 and lack of memory, 39 although rule 804(a)
contains no "exceptional circumstances" provision such as that of rule
32(a)(3). 40 Rule 803 of the Federal Rules of Evidence, however, provides for
the admissibility of hearsay statements, irrespective of the availability of the
witness, on the basis of the statements' circumstantial guarantees of
trustworthiness. 41 On the other hand, rule 804 allows admission of certain
hearsay statements that are not of equal quality as the live testimony of a
declarant when the witness is unavailable and his statement satisfies one of
the provisions of rule 804(b). 42
Since former testimony fulfills both the oath and opportunity for crossexamination criteria of the three ideal testimonial conditions, 43 the reliability
36. FED. R. Evm. 804(a).
37. Id. 804(a)(l).
38. Id. 804(a)(2).
39. Id. 804(a)(3). The House Judiciary Committee Report on the Federal Rules of Evidence
stated that the Committee intended no change in existing federal law under rule 804(a)(3), but
instead, intended to continue the practice of allowing a court to believe or disbelieve a declarant's
testimony regarding his lack of memory. See United States v. Insana, 423 F.2d 1165, 1169-70
(2d Cir.), cert. denied, 400 U.S. 841 (1970) (court has "discretionary latitude" to admit or deny
prior statements when witness claims lack of memory); H.R. REP. No. 650, 93d Cong., 1st Sess.
13, reprinted in 1974 U.S. CODE CONG. & AD. NEWS 7075, 7089 [hereinafter cited as H.R. REP.
No. 650).
40. FED. R. Evm. 804(a); see FED. R. Crv. P. 32(a)(3)(E) ("exceptional circumstances"
provision). But see FED. R. Evm. 804(b)(5). Rule 804(bX5) of the Federal Rules of Evidence
allows admission of a hearsay statement into evidence that the specific exceptions to the hearsay
rule under rule 804(b) do not cover when a statement has "equivalent circumstantial guarantees
of trustworthiness." Id. Congress amended the Supreme Court's proposed version of rule 804(b)(5)
by adding a notice requirement to allow a party adequate time before trial to prepare objections
to the use of hearsay statements that a party offers under the residual exception in rule 804(b)(5).
See ABA Section of Litigation,Emer,ging Problems Under the Federal Rules of Evidence 291
& n.226 (1983); see also H.R. REP. No. 1597, 93d Cong., 2d Sess. 11-12, 13 (1974). Congress
also was concerned that some courts might use the residual exception under rule 804(b)(5) to
admit hearsay that falls under one of the specific hearsay exceptions but that does not meet the
requirements for admission under rule 804(b). See 120 Cong. Rec. Hl2255-57 (Dec. 18, 1974);
see also Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1262-63 (E.D.
Pa. 1980). In Zenith, the United States District Court for the Eastern District of Pennsylvania
determined that Congress intended the residual exception in rule 804(b)(5) to apply only to hearsay that did not fall within a type of hearsay for which the Federal Rules of Evidence provided
a specific exception under rule 804(b). 505 F. Supp. at 1262-63. The court in Zer.ith found that
a court should not admit evidence that falls within one of the specific rule 804(b) exceptions
but fails to satisfy the requirements of a specific exception. Id. at 1263. But see In re Screws
Antitrust Litig., 526 F. Supp. 1316, 1319 (D. Mass. 1981) (court admitted former testimony under
rule 804(b)(5) because testimony inadmissible under rule 804(b)(l)); see also Rossi, The Silent
Revolution, 9 l.JnGATION 13, 17 (Winter 1983) (courts routinely admit hearsay under rule 804(b)(5)
when not within other rule 804(b) exceptions).
41. FED. R. Evm. 803.
42. See id. 804 advisory committee note.
43. See supra note 1 (ideal testimonial conditions of oath, opportunity to cross-examine,
and presence of witness).

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of former testimony would suggest inclusion of a hearsay exception for former
testimony under rule 803 rather than under rule 804. 44 The Advisory Committee Note to rule 804, however, stated that because the opportunity to observe
the demeanor of the witness is a significant aspect of assessing the reliability
of testimony and because demeanor evidence is less important under the hearsay exceptions in rule 803 than under the hearsay exceptions in rule 804, rule
804 should include any exception to the hearsay rule for former testimony. 45
The inclusion of former testimony under rule 804 serves to perpetuate the
common-law requirement of unavailability of a witness as a prerequisite for
the admission into evidence of such testimony under the Federal Rules of
Evidence. 46
Unlike rule 32, rule 804(b){(l) requires that the party against whom the
former testimony now is offered, or a "predecessor in interest" 47 to that party,
had an "opportunity and similar motive" 48 to develop the previous testimony
by examination of the witness. 49 Direct, cross, or redirect examination satisfies
rule 804(b)(l). so The Advisory Committee Note to rule 804(b)(l) adopted the
view that direct or redirect examination of a witness is the equivalent of
cross-examination. 51 The Committee justified this view on the ground that
the Federal Rules of Evidence allow a party to develop adequately the prior
testimony of a witness on direct or redirect examination, even if the witness
is "hostile, double-crossing, forgetful, [or] mentally deficient. " 52 Therefore,
according to rule 804(b)(l), if a party or a predecessor in interest fails to develop
a witness' testimony by deliberate choice that party's interests will have been
protected. 53
The version of rule 804(b){l) that Congress passed differs from the ver44. See FED. R. Evw. 804 advisory committee note.
45. Id.
46. Id.
47. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1253 n.79
(E.D.Pa. 1980) (courts traditionally define "predecessor," as correlative of "successor," in terms
of privity); see also infra notes 110-137 and accompanying text (discussing meaning of term
"predecessor in interest" in rule 804(b}(l)}.
48. See infra notes 138-195 and accompanying text (discussing what constitutes "opportunity and similar motive" to develop previous testimony under rule 804(b)(l}).
49. FED. R. EVID. 804(b)(l).
50. See id. C. McCORMICK, supra note 1, § 255, at 617 (sensible to include direct examination as equivalent of cross-examination); Falknor, Former Testimony and the Uniform Rules:
A Comment, 38 N.Y.U. L. REv. 651 & n.l (1963) (direct examination equivalent of crossexamination as adequate satisfication of hearsay rule).
51. See FED. R. Evw. 804(b)(l} advisory committee note; see also supra note 50. The Advisory Committee to the Federal Rules of Evidence considered the treatment of direct or redirect
examination as the equivalent of cross-examination by reasoning that the primary purpose of
cross-examination is to allow a party to question the statements of an opponent's witness. FED.
R. Evw. 804(b)(l) advisory committee note; see 5 J. WIGMORE, supra note 1, § 1389, at 121.
If a party calls and examines a witness, that party's interest already has received adequate protection for the purposes of the hearsay rule and therefore the witness' deposition is admissible against
that party. 5 J. WIGMORE, supra note 1, at 121; see FED. R. EVID. 804 advisory committee note.
52. FED. R. Evw. 804(b}(l} advisory committee note.
53. Id.

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sion of the rule that the Supreme Court originally submitted to Congress. 54
The Court's version of rule 804(b)(l) relaxed the common-law requirement
of complete identity of issues and parties, 55 and required that the witness have
given the testimony under oath and subject to cross-examination. 56 The Court's
version of rule 804(b)(l) expanded the common-law definition of an opportunity for cross-examination to include the direct or redirect examination of
a witness by a party against whom that witness' testimony now is offered. 57
The Court's proposed version of rule 804(b)(l) also rejected strict identity,
or privity,5 8 as a prerequisite to the use of prior action testimony against that
party, 59 and allowed instead the use of former testimony against a party when
another party in the previous action had a "similar motive and interest" to
develop the testimony of the declarant. 60 The "similar motive and interest"
language in the Court's proposed version of rule 804(b)(l) comports with the
modern interpretation many courts have given to rule 32(a)(4), which allows
the use of prior-action depositions against a party who was neither present
in the previous action nor a "successor in interest" in the strict meaning of
the term. 61
54. See 11 J. MOORE, supra note 5, § 804.01[7]-[9], at VIII-223-27. The Supreme Court's
proposed version of rule 804(b)(l) of the Federal Rules of Evidence allowed the use of former
testimony against a party if a previous party had an opportunity to develop the testimony with
motive and interest similar to those of the present party. See id. § 804.01[1.-l], at VIII-216.
Under the Rules Enabling Act, the Supreme Court has the power to "prescribe by general
rules ... the practice and procedure of the district courts and courts of appeals of the Untied
States in civil actions ... " subject to congressional approval within 90 days. 28 U.S.C. § 2072
(1976). Pursuant to the Rules Enabling Act, the Supreme Court in 1973 submitted a proposed
version of the Federal Rules of Evidence to Congress over the dissent of Justice Douglas. See
10 J. MOORE, supra note 5, Introduction § 40[1], at 63-6. Congress, however, opposed the proposed Federal Rules of Evidence on the ground that the Court did not have the power to prescribe
such rules under the terms of the Act. Id. § 46, at 77. Consequently, Congress passed and the
President signed an act requiring affirmative congressional approval of the Federal Rules of
Evidence. Act of Mar. 30, 1973, Pub. L. No. 93-12, 87 Stat. 9 (1973). After significant debate
and revision of the Supreme Court's proposed version of the Federal Rules of Evidence, Congress enacted the Federal Rules of Evidence and the President signed the Act into law on January
2, 1975. Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926 (1975); see 10 J. MooRE, supra
note 5, Introduction § 45, at 74-5.
55. See Rumford Chem. Works v. Hygienic Chem. Co., 215 U.S. 156, 159 (1909) (privily
is required for parties or predecessor in interest); C. McCORMICK, supra note 1, §§ 256, 257
(identity of parties and issues requirement); 11 J. MooRE, supra note 5, § 804.04[2], at VIII-264.65
(Court relaxed common-law identity of parties requirement under proposed version of rule 804(b)(l)).
56. See Tappan v. Beardsley, 77 U.S. (10 Wall.) 427, 435 (1870) (use of former testimony
requires that testimony was under oath and subject to cross-examination in addition to privily
of parties).
57. See FED. R. Evm. 804(b)(l); supra notes 50-51 and accompanying text (direct and crossexamination are equivalent under rule 804(b)(l)).
58. See supra note 8 (discussion of privity).
59. See FED. R. Evm. 804(b)(l) advisory committee note.
60. Id. 804(b)(l); see id. advisory committee note; infra notes 228-232 and accompanying
text (commentary on "similar motive and interest" language in rule 804(b)(l)). The satisfaction
of "similar motive and interest" under rule 804(b)(l) of the Federal Rules of Evidence is dependent upon whether fairness allows imposing the earlier handling of the witness upon the party
against whom that testimony now is offered. See FED. R. Evm. 804 advisory committee note.

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Although Congress adopted the Supreme Court's broader definition of
cross-examination to include the direct or redirect examination of a witness
by a party, 62 Congress rejected the Court's expansion of the identity of parties requirement. 63 In addressing the identity of parties issue, the House
Judiciary Committee determined that it would be unfair to impose responsibility for the manner in which another party handled a witness in a previous
setting upon the party against whom the hearsay evidence now is being
offered. 64
Although the House Judiciary Committee determined that allowing the
admission of prior testimony in a subsequent action when another party with
a similar motive and interest was present in the earlier action was too broad
in scope, 65 the Committee relaxed the common-law requirement of complete
identity between parties to allow introduction of deposition testimony provided
that the party against whom the testimony is being offered had a predecessor
in interest who had an opportunity and similar motive to examine the witness
in the earlier proceeding. 66 Accordingly, the version of rule 804(b)(1) that Congress adopted includes an identity of parties requirement under which a party
may assert the use of former testimony only against a party, or a successor
in interest to a party, in the proceeding in which the declarant gave the
testimony. 67 Rule 804(b)(l),however, imposes no limitation on who may offer
the previous testimony. 68 In this respect, rule 804(b)(l) is substantially more
liberal than rule 32(a)(4), which purports to require the "same parties" or
their representatives or successors in interest in the second action as were in
the previous action. 69 The "same parties" language of rule 32(a)(4) thus apparently should prohibit the use of a deposition from an earlier action by
one who was not a party to the earlier action, 70 whereas rule 804(b)(l) permits
61. See Rule v. International Ass'n of Bridge, Structural and Ornamental Ironworkers,
Local Union No. 396, 568 F.2d 558, 569 (8th Cir. 1977) (prior opponent with interest to crossexamine as thoroughly as present opponent satisfies rule 32(a)(4)); Fullerform Continuous Pipe
Corp. v. American Pipe & Constr. Co., 44 F.R.D. 453, 455-56 (D. Ariz. 1968) (substantial identity of issues and common questions of law or fact allow use of prior action depositions in subsequent action under rule 32(a)(4) when defendants, common to both actions, adequately represented
interests of defendant not a party to first action).
62. See supra note 51 (equivalence of direct and cross-examination).
63. See H.R. REP. No. 650, supra note 39, at 7088 (congressional rejection of Supreme
Court's proposed version of rule 804(b)(l) "similar interest and motive" language).
64. Id.
65. Id.
66. Id. In addressing the "similar interest and motive" language in rule 804(b)(l) of the
Federal Rules of Evidence, the Senate concurred in the change the House made to the identity
of parties requirement in rule 804(b)(l). Sees. REP. No. 1277, 93d Cong., 2d Sess. 28, reprinted
in 1974 U.S. CoDE CoNG. & AD. NEWS 7051, 7074 [hereinafter cited as S. REP. No. 1277]. The
Senate Judiciary Committee determined that the difference between the House and Supreme Court
versions of rule 804(b)(l) "was not great." Id.
67. See 11 J. MOORE, supra note 5, § 804.4[2], at VIII-265.
68. Id.
69. Compare FED. R. CIV. P. 32(a)(4) with FED. R. Evm. 804(b)(I) ("same parties" standard of rule 32 is stricter than rule 804(b)(l) with respect to who may offer previous testimony).
70. FED. R. CIV. P. 32(a)(4).

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a party not present in the prior action to assert the use of testimony from
the prior action against a party who was present or who had a predecessor
in interest that was present at the earlier action. 11 Nevertheless, several courts
have permitted parties not present in the earlier action to use prior action
depositions in the subsequent action under a liberal interpretation of rule
32(a)(4). 72
Rule 804(b)(l) also differs from rule 32(a)(4) to the extent that rule 804(b)(l)
does not include specifically a substantial identity of issues or subject matter
requirement for the admissibility of former testimony. 73 Courts interpreting
rule 804(b)(l), however, have indicated that the appropriate inquiry concerning whether a party or his predecessor in interest had an "opportunity and
similar motive" to develop the testimony of the witness depends upon whether
the issues in the prior action, from which the testimony derives, are sufficiently similar to the issues in the subsequent action to protect the interest of the
later party. 74
Although rule 32(a)(4) requires that the previous and subsequent actions
involve "the same subject matter" and the "same parties or their representatives or successors in interest" for a party to use prior action depositions,
the courts have interpreted this language in different ways. 75 Several courts
71. FED. R. Evro. 804(b)(l).
72. See Rule v. International Ass'n of Bridge, Structural and Ornamental Ironworkers,
Local Union No. 396, 568 F.2d 558, 569 (8th Cir. 1977) (class action plaintiffs not parties to
prior government action); Hertz v. Graham, 292 F.2d 443, 447 (2d Cir.) (new plaintiff in subse•
quent action arising out of same accident), cert. denied, 368 U.S. 929 (1961); Fullerform Continuous Pipe Corp. v. American Pipe & Constr. Co., 44 F.R.D. 453, 455 (D. Ariz. 1968) (new
plaintiffs in second antitrust suit arising out of same conspiracy).
73. See FED. R. Evm. 804(b)(l).
74. See Oberlin v. Marlin Am. Corp., 596 F.2d 1322, 1329 (7th Cir. 1979) (court held prior
action deposition inadmissible under rule 804(b)(l) since main issues in two actions were different
in nature and thus prior party did not have similar motive to cross-examine); Zenith Radio Corp.
v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1252 (E.D.Pa. 1980) (court noted that similar
motive requirement under rule 804(b)(l) is predicated at least in part upon substantial similarity
of issues between prior and subsequent actions); 11 J. MooRE, supra note 5, § 804.04(3], at
VIII-266-67 (court should focus on issues in two proceedings to determine if party had similar
motive to cross-examine in prior action); see also C. McCoRMICK, supra note 1, § 257, at 622
(issues in prior action must have been sufficiently similar to issues in subsequent proceeding to
insure adequate motive for cross-examination).
75. See Rule v. International Ass'n of Bridge, Structural and Ornamental Ironworkers,
Local Union No. 396, 568 F.2d 558, 568-69 (8th Cir. 1977) (substantial identity of issues and
prior opponent with interest to cross-examine as thoroughly as present opponent required to admit
prior action deposition); Ikerd v. Lapworth, 435 F.2d 197,205 (7th Cir. 1970) (presence of adversary with same motive to cross-examine and substantial identity of issues in previous case required to admit deposition in subsequent action); Insul-Wool Insulation Corp. v. Home Insulation, Inc., 176 F.2d 502, 504 (10th Cir. 1949) (party asserting use of former testimony not required as party to previous suit when issues identical); George R. Whitten, Jr., Inc. v. State
Univ. Constr. Fund, 359 F. Supp. 1037, 1039 (D. Mass. 1973) (only substantial identity of issues
and same motive to cross-examine necessary to use prior-action testimony), aff'd, 493 F.2d 177
(1st Cir. 1974); Fullerform Continuous Pipe Corp. v. American Pipe & Constr. Co., 44 F.R.D.
453, 455-56 (D. Ariz. 1968) (same); Baldwin-Montrose Chem. Co. v. Rothberg, 37 F.R.D. 354,
356 (S.D.N.Y. 1964) (common question of law or fact and substantial identity of issues); Copeland

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have interpreted the language in rule 32(a)(4) requiring identity of issues and
parties strictly and have denied the admissibility of earlier depositions in a
subsequent action if the issues were neither identical nor substantially identical and if the parties were not the same in both actions. 76 For example, in
Fouke Fur Co. v. Bookwalter, 11 the plaintiff company instituted a suit for
a refund of income taxes that the plaintiff paid as a result of a deficiency
assessment after the Internal Revenue Service (IRS) disallowed an amount the
plaintiff previously had deducted as a business expense.7 8 In 1956, the plaintiff paid $25,000 to the widow of a deceased president and director of the
plaintiff company in consideration of her husband's service to the company. 79
The IRS made an additional income tax assessment in 1961 against the widow
for a part of the $25,000 payment and after disallowance of the widow's refund claim, the widow filed suit against the IRS. 80 The widow contended that
the $25,000 payment was a gift from the company and that therefore the payment was not taxable income. 81
The IRS did not assess the plaintiff company in Fouke Fur for additional
taxes until after the widow successfully had settled her refund suit against
the Service. 82 During the course of the widow's suit contesting the validity
of the disallowance, the Service deposed three directors of the plaintiff company and subsequently sought to admit these depositions into evidence in the
action the plaintiff brought for an income tax refund. 83 The United States
District Court for the Eastern District of Missouri noted several jurisdictions
that would admit the depositions in the current case into evidence84 but stated
v. Petroleum Transit Co., 32 F.R.D. 445, 447 (E.D.S.C. 1963) (same); Hertz v. Graham, 23
F.R.D. 17, 22 (S.D.N.Y. 1958) (identity of interest rather than identity of parties), aff'd, 292
F.2d 443, 447 (2d Cir.), cert. denied, 368 U.S. 929 (1961); First Nat'! Bank in Greenwich v.
National Airlines, 22 F.R.D. 46, 51 (S.D.N.Y. 1958) (same); Rivera v. American Export Lines,
13 F.R.D. 27, 28 (S.D.N.Y. 1952) (same); Mid-City Bank & Trust Co. v. Reading Co., 3 F.R.D.
320, 323 (D.N.J. 1944) (same). But see Alamo v. Pueblo Int'!, Inc., 58 F.R.D. 193, 194 (D.P.R.
1972) (use of former testimony requires same parties and substantially same issues); Fouke Fur
Co. v. Bookwalter, 261 F. Supp. 367, 370 (E.D.Mo. 1966) (unless previous action involved same
parties, lack of notice of deposition taking prevents use of deposition in subsequent action); Wolf
v. United Air Lines, 12 F.R.D. 1, 4 (M.D. Pa. 1951) (issues and parties not identical to previous
action and therefore depositions not admissible).
76. Alamo v. Pueblo Int'!. Inc., 58 F.R.D. 193, 194 (D.P .R. 1972) (use of former testimony
requires same parties and substantially same issues); Fouke Fur Co. v. Bookwalter, 261 F. Supp.
367, 370 (E.D. Mo. 1966) (unless previous action involved same parties, lack of notice of deposition taking prevents use of deposition in subsequent action); Wolf v. United Air Lines, 12 F.R.D.
1, 4 (M.D.Pa. 1951) (issues and parties not identical to previous action and therefore depositions
not admissible).
77. 261 F. Supp. 367 (E.D. Mo. 1966).
78. Id.
79. Id. at 368. The plaintiff company in Fouke Fur Co. v. Bookwalter listed its payment
to the widow of a deceased president under "other expenses" rather than as a salary or pension
payment. Id.
80. Id. at 369.
81. Id.
82. Id.
83. Id.
84. See id. at 369-70.

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that it would not permit the introduction of the depositions unless the plaintiff met the requirements of rule 26(d), the predecessor to rule 32(a). 85 The
court found that the depositions were not admissible because the plaintiff was
not a party to the widow's suit, and neither received notice of, nor was present or represented at, the taking of the depositions in the earlier action. 86
Although a strict interpretation of rule 32(a)(4) allowing the use of a prior
action deposition only against a party who was present or represented in the
previous action seems to comport with the language contained therein, the
objectives of fairness and efficiency embodied in the Federal Rules of Civil
Procedure raise questions regarding the desirability of such a strict approach. 87
The predominant view among federal courts requires only a substantial identity of issues and the presence of an adversary with the same or a similar
motive to cross-examine the witness in order to admit prior action depositions
in a subsequent action. 88 The identity of issues in the context of prior action
depositions is important only to determine whether the party-opponent in the
previous case had the same interest and motive to cross-examine the witness
as the party-opponent in the subsequent case. 89
In Hertz v. Graham, 90 the United States District Court for the Southern
85. Id. at 370.
86. Id.; see Alamo v. Pueblo Int'!, Inc., 58 F.R.D. 193, 194 (D.P.R. 1972) (use of depositions from former action requires same parties and substantially same issues in subsequent action);
Wolf v. United Air Lines, 12 F.R.D. 1, 3-4 (M.D. Pa. 1951) (court found that issues arising
from cross-claim in previous action "infected" atmosphere of depositions from that action to
preclude admission in subsequent action).
87. See FED. R. CIV. P. l; Rivera v. American Export Lines, 13 F.R.D. 27, 29 (S.D.N.Y.
1952) (many courts have held that courts must construe Federal Rules of Civil Procedure liberally).
88. See Rule v. International Ass'n of Bridge, Structural and Ornamental Ironworkers,
Local Union No. 396, 568 F.2d 558, 568-69 (8th Cir. 1977) (court requires presence of adversary
with same motive to cross-examine and substantial identity of issues in previous case to admit
deposition in subsequent action); Ikerd v. Lapworth, 435 F.2d 197, 205 (7th Cir. 1970) (same);
Insul-Wool Insulation Corp. v. Home Insulation, Inc., 176 F.2d 502, 504 (10th Cir. 1949) (party
asserting use of former testimony is not required as party to previous suit when issues are identical); George R. Whitten, Jr., Inc. v. State Univ. Constr. Fund, 359 F. Supp. 1037, 1039 (D.
Mass. 1973)(court requires only substantial identity of issues and same motive to cross-examine
to use prior-action testimony), aff'd, 493 F.2d 177 (1st Cir. 1974); Fullerform Continuous Pipe
Co. v. American Pipe & Constr. Co., 44 F.R.D. 453, 455-56 (D. Ariz. 1968) (same); BaldwinMontrose Chem. Co. v. Rothberg, 37 F.R.D. 354, 356 (S.D.N.Y. 1964) (common question of
law or fact and substantial identity of issue); Copeland v. Petroleum Transit Co., 32 F.R.D.
445, 447 (E.D.S.C. 1963) (same); Hertz v. Graham, 23 F.R.D. 17, 22 (S.D.N.Y. 1958) (identity
of interest rather than identity of parties), aff'd, 292 F.2d 443, 447 (2d Cir.), cert. denied, 368
U.S. 929 (1961); First Nat'! Bank in Greenwich v. National Airlines, 22 F.R.D. 46, 51 (S.D.N.Y.
1958) (same); Rivera v. American Export Lines, 13 F.R.D. 27, 28 (S.D.N.Y. 1952) (same); MidCity Bank & Trust Co. v. Reading Co., 3 F.R.D. 320, 323 (D.N.J. 1944) (same); see also 5
J. WIOMORE, supra note 1, §1388 (admission of former testimony requires prior party-opponent
with same interest and motive to cross-examine).
89. See First Nat'! Bank in Greenwich v. National Airlines, 22 F.R.D. 46, 51 (S.D.N.Y.
1958) (identity of issues important only as it bears on identify of interest); see also 5 J. WIGMORE,
supra note 1, § 1388, at 91 (substantial identity of issues requirement insures testing of statements
on cross-examination). But see Hub v. Sun Valley Co., 682 F.2d 776, 778* (9th Cir. 1982) (questioning "same interest and motive" test).
90. 23 F.R.D. 17 (S.D.N.Y. 1958), aff'd, 292 F.2d 443 (2d Cir.), cert. denied, 368 U.S.
929 (1961).

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District of New York held that depositions from a prior action were admissible in a subsequent action under the language of rule 26(d)(4) (now rule
32(a)(4)), despite the fact that the parties in a previous action were not the
same. 91 Both actions in Hertz arose out of a collision between the plaintiff's
and the defendant's race horses on a training track, resulting in the loss of
both horses and serious injury to the plaintiff's jockey. 92 The jockey brought
the first action against the defendant for injuries that he sustained in the
collision. 93 The horse owner brought the second action against the defendant
for the loss of her race horse. 94 The district court held that depositions from
the jockey's suit against the defendant were admissible in the horse owner's
subsequent action against the defendant because the issues were substantially
the same. 95 Furthermore, the Hertz court found that the defendant's interest
in the prior action induced a cross-examination of the witnesses that was equally
as thorough as any cross-examination that the defendant's interest would have
induced in the later action. 96
In contrast, the Ninth Circuit in Hub v. Sun Valley Co. 91 expressed reservations about the "same motive to cross-examine" test the Hertz court used
to admit prior action depositions under rule 32(a)(4). 98 The plaintiff in Hub
filed suit against the defendant company, alleging that the defendant
discriminated against him on the basis of his national origin and retaliated
against him because of a complaint the plaintiff filed with the Equal Employment Opportunity Commission (EEOC). 99 The plaintiff contended that the
United States District Court for the District of Idaho erred in excluding a
deposition from a prior state action involving the plaintiff and the defendant
company's predecessor in interest. 100 Although the Hub court stated that two
lawsuits need not have identical issues and parties for the admission of a prior
action deposition under rule 32(a)(4), the court found no similarity of issues
between the two cases because the prior action did not involve the issue of
retaliation against the plaintiff for filing the EEOC complaint. 101 The court
in Hub, therefore, affirmed the trial court decision excluding the prior action
deposition. 102
In considering whether the presence of an adversary in the previous action with the "same motive" to cross-examine was sufficient to admit a deposition from that action under rule 32(a)(4), the Ninth Circuit in Hub noted that
the focus of a court on similarity of "interest" between a previous and a cur91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.

Id. at 22-23.
Id. at 19.
Id.
Id.
Id. at 22.
Id.
682 F.2d 776 (9th Cir. 1982).
Id. at 778.
Id. at 777.
Id.
Id. at 778.
Id.

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rent party disregards the "same parties" requirement in rule 32(a) and also
fails to account for the possibility that the prior opponent mishandled the
cross-examination. 103 The Hub court questioned whether testimony in which
a previous party mishandled the cross-examination of a witness should be admissible against a party who was not present at the prior proceedings. 104
In addressing the subsequent action admissibility of depositions from a
previous action under rule 32(a)(4), the approach of the Hertz court rests on
sound logic, particularly when a party asserts use of testimony against a party
who was also a party to the former action or proceedings. 105 By placing reliance
on the similarity of motive and interest between a party in a prior action and
a party in a subsequent action to cross-examine a witness, courts serve the
purpose of efficiency embodied in the Federal Rules of Civil Procedure by
saving the time, effort and money of litigants and by expediting trials. 106 As
the Hub court observed, however, the potential for unfairness exists when
a party asserts the use of a prior action deposition against a party not present
in the previous action if the previous party mishandled the cross-examination
of the declarant. 107 In such a case, the courts should exclude prior action depositions to prevent any prejudice to the party in the later action. 108 The exclusion
of prior action depositions when a previous party has mishandled a witness
also serves the interest of the Federal Rules of Civil Procedure by promoting
fairness to all parties. 109
As in the case of rule 32(a)(4), courts have interpreted rule 804(b)(l) in
an inconsistent manner. 11 ° For example, some courts have given an expansive
reading to the term "predecessor in interest" under rule 804(b)(l), 111 whereas
other courts have adhered to a narrower interpretation of the term. 112 In Lloyd
103. Id. at 778*.
104. Id.
105. See infra notes 196-226 and accompanying text (posture of parties may affect fairness
of allowing use of prior action depositions).
106. See Baldwin-Montrose Chem. Co. v. Rothberg, 37 F.R.D. 354, 356 (S.D.N.Y. 1964)
(courts avoid needless waste of time, money, and effort and expedite litigation by focusing on
similarity of interest between prior and subsequent party under rule 32(a)(4)).
107. See 682 F.2d 776, 778* (9th Cir. 1982).
108. See infra notes 215-222 & 224 and accompanying text (court should exclude prior action
depositions to prevent prejudice to subsequent party).
109. See FED. R. Crv. P. 1 (courts should construe Federal Rules of Civil Procedure to
secure just determination of every action).
110. See infra notes 111-112 and accompanying text.
111. See, e.g., Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1185-86 (3d Cir.) (court
determined that Coast Guard was predecessor in interest of subsequent private plaintiff), cert.
denied, 439 U.S. 969 (1978); In re Johns-Manville/Asbestosis Cases, 93 F.R.D. 853, 856 (N.D.
Ill. 1982) (subsidiaries in previous case were predecessors in interest of primary building products
manufacturer in subsequent case); Standard Oil Co. v. Montedison, 494 F. Supp. 370, 421 n.462
(D. Del. 1980) (subsidiary was predecessor in interest of primary corporation even though corporation did not participate in previous litigation), aff'd, 664 F.2d 356 (3d Cir. 1981); In re Master
Key Antitrust Litig., 72 F.R.D. 108, 109 (D. Conn.) (United States was predecessor in interest
of subsequent plaintiffs in private antitrust enforcement suit), aff'd, 551 F.2d 300 (2d Cir. 1976).
112. See Government of Canal Zone v. Pinto, 590 F.2d 1344, 1354 (5th Cir. 1979) (crossexamination in prior proceeding by party with similar motive and interest was insufficient under

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v. American Export Lines, 113 a plaintiff seaman brought a personal injury
action in the United States District Court for the Eastern District of Pennsylvania against American Export Lines after sustaining injuries in a violent
encounter with another seaman, Roland Alvarez. 114 The plaintiff alleged that
the ship's owner was negligent under the Jones Act 115 and that the vessel was'
unseaworthy. 116 American Export Lines impleaded Alvarez as a third-party
defendant and thereafter Alvarez counterclaimed against American Export
Lines, alleging negligence and unseaworthiness of American Export Lines'
vessel. 117 The Coast Guard conducted a hearing, prior to the federal trial,
during which both the plaintiff and Alvarez testified under oath. 118 At the
Coast Guard hearing both the plaintiff and Alvarez were subject to direct
and cross-examination. 119 At trial, only Alvarez testified because the plaintiff
failed to appear. 120 The trial judge refused to admit a transcript of the plaintiff's testimony at the Coast Guard hearing and the jury awarded Alvarez
damages against American Export Lines on the basis of negligence. 121 American
Export Lines appealed, arguing that excerpts of the plaintiffs' testimony from
the prior Coast Guard hearing were admissible under rule 804(b)(l).' 22
The Third Circuit in Lloyd reversed the trial court and held the plaintiff's
prior testimony admissible under rule 804(b)(l) by determining that Alvarez
and the Coast Guard shared a "sufficient community of interest" to justify
considering the Coast Guard as Alvarez's predecessor in interest. 123 The Lloyd
rule 804(b)(l)); Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1190-91 (3d Cir.) (Stern,
J ., concurring) (court precluded from finding Coast Guard was later private plaintifrs "predecessor
in interest" by legislative history of rule 804(b)(l), cert. denied, 439 U.S. 969 (1978); In re Screws
Antitrust Litig., 526 F. Supp. 1316, 1318-19 (D. Mass. 1981) (defendants in criminal proceeding
were not "predecessors in interest" to unrelated defendants in subsequent civil action arising
out of same occurrence); In re IBM Peripheral EDP Devices Antitrust Litig., 444 F. Supp. 110,
113 (N.D. Cal. 1978) (plaintiff from previous antitrust case was not "predecessor in interest"
of plaintiff in subsequent action despite having a similar motive to examine witnesses in prior
action); see also Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1254
(E.D. Pa. 1980) (discussing Lloyd, court considered it significant that "predecessor in interest"
in Lloyd was government investigator who was presumably impartial and had no role in subsequent legal action).
113. 580 F.2d 1179 (3d Cir.), cert. denied, 439 U.S. 969 (1978).
114. Id. at 1181.
115. 46 U.S.C. § 688 (1976). The Jones Act provides a cause of action for any seaman injured in the course of his employment. See id.
116. 580 F.2d at 1181.
117. Id.
118. Id. at 1182.
119. Id. at 1182-83.
120. Id. at 1181. In Lloyd v. American Export Lines, the United States District Court for
the Eastern District of Pennsylvania dismissed the plaintiff's negligence and unseaworthiness claim
for failure to prosecute and the court held trial only on Alvarez's counterclaim against the shipping line. Id.
121. Id. at 1181-82.
122. Id. at 1182.
123. Id. at 1185-86; see In re Master Key Antitrust Litig., 72 F.R.D. 108, 109-10 (D. Conn.),
afj'd, 551 F.2d 300 (2d Cir. 1976). In In re Master Key Antitrust Litig., the United States District
Court for the District of Connecticut found that the United States was the "predecessor in interest" under rule 804(b)(l) of a later private plaintiff in an antitrust action. Id. at 109. The

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court reasoned that both Alvarez and the Coast Guard's investigating officer
were attempting to determine culpability and exact a penalty for the same
proscribed behavior and therefore had similar motives for developing the
testimony concerning the same material facts. 124 The Third Circuit relied on
the Senate Judiciary Committee's report on rule 804, 125 in which the Committee acquiesced to the House of Representatives' amendment to the Supreme
Court's version of rule 804(b)(l). 126 The House version reinstated the traditional identity of parties requirement in place of the Court's proposed rule
allowing a party to introduce former testimony provided a party in the previous
action had a "similar motive and interest" to develop that testimony. 121 The
Senate Committee report stated, however, that the difference between the Court
and House versions of rule 804(b)(l) "was not great." 128 By removing the
language of the Committee report from context, the Lloyd court determined
that a party to a previous proceeding was a predecessor in interest to a subsequent party when there was an adequate opportunity and similar motive to
develop the unavailable witness' testimony. 129 The Lloyd court's interpretation of "predecessor in interest" effectively rendered the congressional
modification of rule 804(b)(l) nugatory by abrogating the House reinstatement of the identity of parties requirement with respect to whom a party may
assert former testimony against. 130
district court, relying on the Senate Report to rule 804(b)(l), determined that a unique relationship exists between federal antitrust enforcement suits and subsequent private antitrust actions.
Id.; see infra notes 125-128 and accompanying text (Senate determined that difference between
House and Court versions of rule 804(b)(l) "was not great"). The Master Key court concluded
that it was not unfair to allow the defendants in a private antitrust enforcement suit to use the
testimony from the prior federal antitrust action of unavailable witnesses in the subsequent private
proceeding because of the special relationship between federal and private antitrust actions. 72
F.R.D. at 109-10. But see In re IBM Peripheral EDP Devices Antitrust Litig., 444 F. Supp. 110,
113 (N.D. Cal. 1978) (courts should limit Master Key opinion to antitrust area because such
broad interpretation of "predecessor in interest" gen.:rally is inconsistent with legislative history
of rule 804(b)(l)); cf. Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1191 (3d Cir.) (Stern,
J ., concurring) (Congress intended "predecessor in interest" in narrow, substantive law sense
of privity relationship), cert. denied, 439 U.S. 969 (1978).
124. 580 F.2d 1179, 1186 (3d Cir.), cert. denied, 439 U.S. 969 (1978). In comparing the
interests of Alvarez and the Coast Guard to determine whether the Coast Guard was Alvarez'
"predecessor in interest" under rule 804(b)(l), the Lloyd court asserted that one significant similarity
was Alvarez' desire "to vindicate his individual interest in recovering for his injuries" while the
Coast Guard wanted "to vindicate the public interest in safe and unimpeded merchant marine
service." Id.
125. See id.; see also In re Johns-Manville/Asbestosis Cases, 93 F.R.D. 853, 856 (N.D. Ill.
1982) (Congress did not intend to use "predecessor in interest" in strict sense of corporate privty); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1253 (E.D. Pa. 1980)
(Senate and House of Representatives had different meanings for term "predecessor in interest").
126. See supra notes 54-68 & 125 and accompanying text (legislative history of rule 804(b)(l));
infra notes 127-28 and accompanying text (same).
127. See id.
128. See S. REP. No. 1277, supra note 66, at 7074.
129. 580 F.2d 1179, 1186-87 (3d Cir.), cert. denied, 439 U.S. 969 (1978).
130. See H.R. REP. No. 650, supra note 39, at 7088; 4 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE§ 804(b)(1)[03], at 804-64 (1982) (prior action testimony unlikely to satisfy rule
804(b)(l) unless offering party's opponent was party to previous action).

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Although the concurring opinion agreed with the result in Lloyd, the concurrence did not approve of the basis for the majority's decision. 131 More
specifically, the concurrence considered that the legislative history of rule 804
precluded the Lloyd court's interpretation of the term "predecessor in
interest.'' 132 The concurrence determined that Congress used the term
"predecessor in interest" in the narrow, substantive law sense of a privity
relationship. 133 The Lloyd court's concept of "community of interest," the
•concurrence noted, is nothing more than "similar motive." 134 The concurrence observed that similar motive is a distinct requirement under rule 804(b)(l)
and that the majority's construction of the term "predecessor in interest" as
nothing more than "similar motive" effectively eliminated the predecessor in
interest requirement. 135 Instead, the concurrence would have allowed admission of the prior testimony in Lloyd under rule 804(b)(5), 136 governing residual
exceptions to the hearsay rule, because of concern about the scope and potential unfairness of the Lloyd court's ruling. 137
Even when a party or a predecessor in interest was present in a previous
action, the court also must find that the party in the previous action had an
"opportunity and similar motive" to examine a declarant to satisfy rule
804(b)(l). 138 The determination of whether a party had an opportunity and
similar motive to examine a witness in a prior action depends largely upon
the nature of the proceeding in which the witness gave the testimony and the
similarity of the issues in the prior and subsequent actions.1 39 For example,
in In re Paducah Towing,1 40 the United States and several barge owners sued
Paducah Towing Company (Company) for damages to a dam on the Ohio
131. 580 F.2d 1179, 1190 (3d Cir.) (Stem, J., concurring), cert. denied, 439 U.S. 969 (1978).
132. Id. at 1190-91. Court should construe a statute to give effect to each provision of that
statute and not to render any word or phrase superfluous. E. CRAWFORD, THE CONSTRUCTION
OF STATUTES§ 165, at 260-61 (1940); 2A J. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 46.06, at 63 (4th ed. 1973). Since rule 804(b)(l) does not define the term "predecessor
in interest," however, the ju.dicial definition of predecessor in interest in previous cases is relevant. See 11 J. MooRE, supra note 5, § 804.04[2], at VIII-265. Predecessor in interest is defined
at common law in the narrow, substantive law sense of privity. See supra note 8 (privity at common law).
133. Id. at 1191; see 4 J. WEINSTEIN & M. BERGER, supra note 130, § 804(b)(l)[04], at 804-65-66
(Congress necessarily used "predecessor in interest" in its narrow, substantive law sense of privity);
supra note 8 (discussion of privity at common law).
134. 580 F.2d 1179, 1191 (3d Cir.) (Stern, J., concurring), cert. denied, 439 U.S. 969 (1978).
135. Id.
136. Id. at 1192; see supra note 40 (residual exception for hearsay under rule 804(b)(5)).
137. See S. SALTZBURG & K. REDDEN, supra note 11, at 659 (legislative history of rule 804(b)(l)
indicates that Lloyd concurrence represents sound thinking).
138. FED. R. Evm. 804(b)(l).
139. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1252 (E.D.
Pa. 1980) (similar motive depends, at least in part, upon substantial similarity of issues); S.
SALTZBURG & K. REDDEN, supra note 11, at 652 (determination of similar motive based upon
similarity of issues and context in which opportunity to examine .witness previously arose); 4
J. WEINSTEIN & M. BERGER supra note 130, § 804(b)(l)[04], at 804-66 (all issues in previous
and subsequent proceeding need not be same but additional issues may affect motive to examine).
140. 692 F.2d 412 (6th Cir. 1982).

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River and to barges attached to the Company's tow boat. 141 ·The Company's
tow boat broke loose from its mooring and went over the dam, causing the
damages to the dam and barges. 142 The Company petitioned the United States
District Court for the Western District of Kentucky for limitation of or
exoneration from liability for the damages resulting from the accident and
impleaded the Exxon Corporation, alleging that because an Exxon tug boat
had caused the accident, Exxon should indemnify the Company for any
damages that the Company might have to pay. 143
Before the trial, the Coast Guard investigated the circumstances surrounding the accident and brought license revocation proceedings against the captain of the Company's vessel before an administrative law judge. 144 At the
subsequent trial, the Company offered the testimony of a pilot of another
vessel, who was an eyewitness to the accident and who previously had testified
at the license revocation proceeding. 14 s Although the Coast Guard called the
pilot as a witness during the license revocation proceeding, the captain's counsel
treated the pilot as an expert witness during cross-examination and asked
hypothetical questions concerning the reasonableness of the captain's actions. 146
The administrative law judge refused to allow the Coast Guard representative
to impeach the pilot's credibility with the result that the testimony was very
favorable to the captain of the Company's vessel. 147 Nevertheless, the district
court admitted the pilot's testimony in the subsequent trial. 148
The Sixth Circuit held that the trial court erred in admitting the pilot's
testimony pursuant to rule 804(b)(l). 149 The Paducah court determined that
the Coast Guard, as Exxon's predecessor in interest, ,so did not have an adequate opportunity to examine the witness because the Coast Guard representative at the license revocation proceeding was not an attorney and because
the administrative law judge refused to allow the Coast Guard to impeach
the pilot's testimony on redirect examination. 1 s1 The Sixth Circuit concluded
that under these circumstances, the Coast Guard did not have a "meaningful
opportunity" to examine the witness and therefore the reliability of the witness'
testimony was insufficient under rule 804(b)(l). 152
The Paducah court's analysis provides a sound framework for determin141. Id. at 417.
142. Id. at 416-17.
143. Id. at 417.
144. Id.
145. Id.
146. Id.
147. Id.
148. Id.
149. Id. at 418.
150. See id. For purposes of determining whether the pilot's testimony from the Coast Guard
hearing was admissible under rule 804(b)(l) in the subsequent action, the In re Paducah Towing
Co. court treated the Coast Guard as the Exxon Corporation's predecessor in interest. Id.
151. Id. at 419.
152. Id.; see C. McCORMICK, supra note 1, § 255, at 616 (opportunity to examine witness
must have been meaningful in light of conditions existing when witness gave former testimony).

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ing whether a party or a predecessor in interest of that party had an adequate
opportunity to examine a witness. Since rule 804(b)(l) requires only that a
party have an opportunity to examine a witness, a court may admit former
testimony when a party to a previous proceeding had an opportunity to examine
a witness but did not exercise that right. 153 However, if the nature of the proceeding at which a witness gave testimony was such that no meaningful opportunity to examine that witness existed, a court should exclude the former
testimony under rule 804(b)(l). 154 As the Paducah court correctly observed,
the purpose of the rule 804(b){l) requirement that a party or his predecessor
have had an opportunity to examine a witness is to provide adequate assurances
of the reliability of that witness' testimony. 155
The question of whether a party had an adequate opportunity to examine
a witness necessarily is intertwined with the question of whether that party
or his predecessor in interest had a similar motive to develop the testimony
of the witness as required by rule 804(b)(l). 156 In examining whether a similar
motive to develop the testimony of a witness existed in a previous proceeding,
a court should focus on the issues to which the witness testified. 157 While additional or slightly different issues in either the prior or subsequent proceeding
will not disqualify a witness' testimony under rule 804(b)(l), the presence of
additional or different issues may affect the motive of a party or a predecessor
in interest to conduct an examination of a witness, particularly when an addi153. FED. R. Evm. 804(b)(l); see DeLuryea v. Winthrop Laboratories, 697 F.2d 222, 226
(8th Cir. 1983) (trial court improperly excluded deposition from previous action even though
party asked only one question on cross-examination because opportunity was present to examine
witness); 5 J. WIGMORE, supra note 1, § 1371, at 55 (opportunity to cross-examine is equivalent
of actual cross-examination because failure to exercise opportunity to cross-examine indicates
party could not or did not need to dispute witness' testimony).
154. See In re Sterling Navigation Co., 444 F. Supp. 1043, 1046 (S.D.N.Y. 1977) (testimony
from bankruptcy proceeding inadmissible under rule 804(b)(l) since hearings under local bankruptcy
rules were non-adversarial); 4 J. WEINSTEIN & M. BERGER, supra note 130, § 804(b)(1)[02), at
804-57-8 (court must exclude former testimony under rule 804(b)(l) if opportunity to cross-examine
is absent); Note, Affidavits, Depositions and Prior Testimony, 46 IowA L. REv. 356, 358 (1961)
(former testimony inadmissible in subsequent_action unless previous tribunal had power to compel cross-examination); see also Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp.
1190, 1252 (E.D. Pa. 1980) (type of proceeding, trial strategy, potential penalties or monetary
stakes, and number of issues and parties may influence motive to develop testimony); 4 J. WEINSTEIN & M. BERGER, supra note 130, § 804(b)(l)[02], at 804-58-9 (if opportunity to cross-examine
would not have resulted in testing reliability of witness' statement, court should exclude prior
testimony).
155. 692 F.2d 412, 419 (6th Cir. 1982). In addressing the admissibility of testimony from
a prior Coast Guard hearing, the Paducah court noted that the examination of the witness was
inadequate to assure reliability of the testimony both because an attorney did not conduct the
examination and because of an erroneous evidentiary ruling by the administrative law judge. Id.
156. See 4 J. WEINSTEIN & M. BERGER, supra note 130, § 804(b) (1)[02], at 804-62 (whether
party had adequate opportunity for cross-examination depends at least in part on interwined
question of motive and interest and is matter for court's discretion).
157. See 11 J. MooRE, supra note 5, § 804.04[3], at VIII-267 (ultimate issues may be different but if issue to which witness testified is substantially same, similar motive test is satisfied);
4 J. WEINSTEIN & M. BERGER, supra note 130, § 804(b)(l)[04], at 804-66 (additional issues in
either prior or subsequent case are permissible as long as motive to examine witness is similar).

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tional party or parties also were present in the previous action or when an
additional party or parties are present in the subsequent action. 158 If the issues
to which a witness testified in a prior action are substantially the same as
the issues in the subsequent action, "similar motive" to develop the testimony
under rule 804(b)(l) probably exists.1 59 For instance, in Bailey v. Southern
Pacific Transportation, 160 the plaintiffs filed a wrongful death action in the
United States District Court for the Eastern District of Texas after the defendant's train hit and killed the plaintiffs' decedent at a railroad crossing. 161
The plaintiffs claimed that as a result of the defendant's negligence the warning signal at the railroad crossing did not function at the time of the accident. 162
The trial judge admitted into evidence testimony from a previous trial concerning a collision at the same crossing to the effect that the warning devices
at the crossing were not operational at the time of the previous accident. 163
The defendant appealed, claiming that the admission of the prior testimony
under rule 804(b)(l) was erroneous because the defendant had a different motive
to examine the witness in the previous case, apparently on the basis that the
two accidents occurred on different dates and involved different parties. 164
The Fifth Circuit, in affirming the trial court, reasoned that because the
dispute in both cases involved whether the warning signals operated properly,
the defendant would have virtually the same motive to examine a witness in
both actions, namely, to show that the witnesses were mistaken that the signals
did not work. 165 Thus, the Bailey court concluded that the witness' former
testimony satisfied the "similar motive" requirement of rule 804(b)(l). 166
Although the Bailey court did not state explicitly the basis for its finding of
similar motive, the court's assertion that the defendant's natural interest was
to examine the witness as to the operation of the signal indicates that the court
found the issues in the two cases substantially the same. 167
In DeLuryea v. Winthrop Laboratories, 168 the Eighth Circuit also found
a similar motive to examine a witness between a previous and subsequent
action. 169 In DeLuryea, the plaintiff sued the defendant on the basis of strict
liability, negligence and breach of express warranty for damages resulting from

158. See 4 J. WEINSTEIN & M. BERGER supra note 130, § 804(b}(l}[04], at 804-66 (presence
of additional issues may affect motive to cross-examine, especially when additional parties also
are present).
159. 11 J. MooRE, supra note 5, § 804.04(03], at VIII-267.
160. 613 F.2d 1385 (5th Cir.), cert. denie'd, 449 U.S. 836 (1980).
161. Id. at 1387.
162. Id.
163. Id. at 1389.
164. Id. at 1390.
165. Id.
166. Id. at 1390 & n.4; see also Murray v. Toyota Motor Distrib., 664 F.2d 1377, 1379
(9th Cir.) (similar and not identical motive required under rule 804(b)(l)), cert. denied, 457 U.S.
1106 (1982).
167. See 613 F.2d 1385, 1390 (5th Cir.), cert. denied, 449 U.S. 836 (1980).
168. 697 F.2d 222 (8th Cir. 1983).
169. Id. at 223.

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drug dependence on a product the defendant manufactured. 110 The trial court
excluded the deposition testimony from a previous workers' compensation proceeding of a physician who had treated the plaintiff after the plaintiff's injury
in an industrial accident. 171 The physician testified that he withdrew the drug
that the defendant manufactured from the plaintiff and advised the plaintiff
to stop taking the drug because she was abusing the drug. 172 The plaintiff's
counsel in the prior proceeding only asked the physician whether the plaintiff's problem with drug abuse was a result of her accident. 173 Consequently,
the plaintiff contended that she restricted her cross-examination of the physician because the only issue in the workers' compensation case was whether
her condition was a result of a job-related injury. 174
The Eighth Circuit, however, reversed the trial court after determining that
the phyliician's testimony was relevant to the issue of misuse of the drug in
both the prior and subsequent actions. 115 The court reasoned, therefore, that
the plaintiff had a similar motive in both actions to disprove the allegations
of her misuse of the drug. 176 The DeLuryea court concluded that because the
issues and parties in both actions were substantially the same, the deposition
testimony was admissible against the plaintiff under rule 804(b)(l). 177
Although the court in DeLuryea admitted the physician's deposition under
rule 804(b)(l), the court also observed that the physician was dead and that
the physician's testimony in the deposition directly impeached the testimony
of the plaintiff in the subsequent trial. 118 Thus, the Eight Circuit might have
concluded more appropriately that the doctor's deposition from the prior action
was admissible under the provisions of rule 32(a). 179 Since the DeLuryea court
chose to admit the deposition from the previous action under rule 804(b){l),
however, the court should have considered several factors, including the type
of proceeding in the prior action, the parties to the previous action, trial strategy
and the financial stakes, in determining whether the plaintiff had a similar
motive to examine the witness in the prior action. 180 While the plaintiff clearly
170. Id.
171. Id. at 226.
172. Id.
173. Id.
174. Id.
175. Id.
176. Id.
177. Id. at 227.
178. Id. The court in DeLuryea v. Winthrop Laboratories stated that the doctor's prior
testimony contained direct impeachment of the plaintiff's testimony that the doctor had not instructed the plaintiff to discontinue the use of the drug. Id. The DeLuryea court reasoned that
the trial court's exclusion of the physician's prior action deposition was prejudicial to the defendant
and therefore constituted an abuse of the trial court's discretion. Id.
179. See FED. R. CIV. P. 32(a)(3) (party may use witness' deposition for any purpose if
witness is dead).
180. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1252 (E.D.
Pa. 1980) (court should evaluate opportunity to cross-examine witness in light of type of proceeding, trial strategy, potential stakes, and number of issues and parties); S. SALTZBURG & K.
REDDEN, supra note 11, at 652 (context in which opportunity to examine witness arose may affect

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had ample opportunity to cross-examine the doctor, the presence of additional
issues in the subsequent action and the nature of the prior proceeding were
factors the court should have considered but which do not appear in the text
of the opinion. 181 For example, the tenuous relation of the physician's testimony
to the issue of strict liability and the relatively nonadversarial setting of a
workers' compensation proceeding would suggest that the DeLuryea court
might have held the deposition inadmissible under rule 804(b)(l), despite the
common issue of whether the plaintiff abused the drug that the defendant
manufactured. 182 In particular, the nature of the prior proceeding and the
potential effect of that proceeding on trial strategy indicates that the court
might have found that the plaintiff did not have the requisite "similar motive"
to cross-examine the witness in the prior action. 183
In Hewitt v. Hutter, 184 the United States District Court for the Western
District of Virginia denied the admission of a deposition from another action
pending in California. 185 The plaintiff vendors brought a specific performance
action on a contract for the sale of land in Virginia while the defendant buyers
sought recission of the contract on the contention that the plaintiff fraudulently
had misrepresented the earnings and profitability of the farming operation
on the land. 186 The defendants' claim of fraud rested almost entirely upon
the testimony of their agent who had negotiated the farm purchase. 187 The
defendants offered into evidence a deposition of their buying agent that the
defendants had taken in connection with the defendants' state court action
against the agent for fraud. 188 In his deposition, the agent supported the buyers'
claim that the vendors had made misleading statements about the value of
the farm.1 89 Statements in this deposition, however, were inconsistent with
an earlier deposition of the agent taken in the Hewitt action. 190 The plaintiffs
in Hewitt objected to the admission of the agent's deposition on the grounds
that they were not parties to the state court action in which the agent gave
his deposition and therefore were not present at the deposition and did not
receive notice thereof. 191 The Hewitt court found that the requisite similar
motive to examine the witness did not exist under rule 804(b)(l) because only
the defendants' attorney in the current action questioned the agent on the
motive of party to develop witness' testimony); 4 J. WEINSTEIN & M. BERGER, supra note 130,
§ 804(b)(l)[02], at 804-62 (trial judge should evaluate adequacy of cross-examination in prior
proceeding in determining admissibility of former testimony under rule 804(b)(l)).
181. See 691 F.2d 222 (8th Cir. 1983); supra note 180.
182. Cf. supra note 180 and accompanying text (considerations affecting "similar motive"
under rule 804(b)(l)).
183. Id.
184. 432 F. Supp. 795 (W.D. Va. 1977), aff'd, 568 F.2d 773 (4th Cir. 1978).
185. Id. at 799.
186. Id. at 796.
187. Id. at 798.
188. Id. at 797.
189. Id. at 798.
190. Id. at 799.
191. Id. at 797.

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fraud issue during the deposition from the other proceeding. 192 The Hewitt
court observed that the interests of the plaintiffs and the defend ants in the
present action could not be more dissimilar. 193 Furthermore, the court noted
that neither the plaintiffs nor a predecessor in interest had questioned the
agent. 194 Thus, although both actions involved the issue of fraud, the parties
to the actions and the context in which the opportunity to examine the witness
arose precluded the admission of the testimony under rule 804(b)(l). 195
The cases under both rule 32(a)(4) and rule 804(b)(l) exhibit several patterns regarding the posture of the parties asserting use of depositions or other
former testimony and that of the parties against whom the depositions or
testimony are being asserted. Frequently, a plaintiff who was not a party to
a prior action (Pi) attempts to assert the use of depositions from a previous
action against a defend ant in a subsequent action who was present or who
is a successor in interest to a party that was present in the previous action
(D1), 196 Assuming a substantial identity of issues exists between a former and
a subsequent action, no unfairness is apparent in allowing P2 to use the former
testimony against D1, 197 Either D1 or his predecessor in interest was present
in the prior action and therefore D1 had an opportunity to examine the witness
whose testimony now is offered. 198 Similarly, when a defendant who was not
192. Id. at 799. The court in Hewitt v. Hutter, in addition to analyzing the admissibility
of the agent's deposition under rule 804(b)(l), also analyzed the admissibility of the deposition
under rule 32(a)(4). Id. While the Hewitt court stated that the presence of an adversary at a
prior deposition with the same motive to cross-examine the witness as the subsequent party and
a substantial identity of issues would allow the use of the deposition, the court found that these
conditions did not exist in the case before the court. Id. The Hewitt court also noted that the
defendants failed to give the plaintiffs notice of the deposition taking in the other action. Id.
193. Id.; cf. Oberlin v. Marlin Am. Corp., 516 F.2d 1322, 1329 (7th Cir. 1979) (different
theories of recovery in prior and subsequent action render prior action depositions inadmissible
under rule 804(b)(l) because of lack of motivation to cross-examine witness when issues are
different).
194. 432 F. Supp. 795, 799 (W.D. Va. 1977), aff'd, 568 F.2d 773 (4th Cir. 1978).
195. Id. at 799; see S. SALTZBURG & K. REDDEN, supra note 11, at 652 (similarity of issues
and context of opportunity to examine witness determine admissibility of former testimony under
rule 804(b)(l)).
196. See, e.g., Murray v. Toyota Motor Distrib., 664 F.2d 1377 (9th Cir.), cert. denied,
457 U.S. 1106 (1982); Bailey v. Southern Pac. Transp. Co., 613 F.2d 1385 (5th Cir.), cert. denied,
449 U.S. 836 (1980); Lloyd v. American Export Lines, 580 F.2d 1179 (3d Cir.), cert. denied,
439 U.S. 969 (1978); Rule v. International Ass'n of Bridge, Structural and Ornamental Ironworkers, Local Union No. 396, 568 F.2d 558 (8th Cir. 1977); Zenith Radio Corp. v. Matsushita
Elec. Indus. Co., 505 F. Supp. 1190 (E.D. Pa. 1980); Alamo v. Pueblo Int'!., Inc., 58 F.R.D.
193 (D.P.R. 1972); Fullerform Continuous Pipe Corp. v. American Pipe &Constr. Co., 44 F.R.D.
453 (D. Ariz. 1968); Hertz v. Graham, 23 F.R.D. 17 (S.D.N.Y. 1958), aff'd, 292 F.2d 443 (2d
Cir.), cert. denied, 368 U.S. 929 (1961); Rivera v. American Export Lines, 12 F.R.D. 1 (M.D.
Pa. 1951); Mid-City Bank & Trust Co. v. Reading Co., 3 F.R.D. 320 (D.N.J. 1944).
197. See FED. R. Evm. 804 advisory committee note (not unfair to require party to accept
his own prior conduct of cross-examination or direct examination); see also 5 J. WIGMORE, supra
note 1, § 1389, at 121 (same); Former Testimony Exception, supra note 1, at 651 n.l (same);
supra notes 50-53 and accompanying text (direct and redirect examination equivalent to crossexamination under Federal Rules of Evidence).
198. See 5 J. WIGMORE, supra note 1, § 1388, at 111 (party's interest is protected if party
or predecessor in interest had opportunity to examine witness).

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a party to a prior action (Dz) attempts to enter into evidence a deposition
or other former testimony from a prior action against a plaintiff in a subsequent action who was present or whose predecessor in interest was present
in the previous suit (P1), the interest of P1 in the prior action would appear
to prevent any undue prejudice or unfairness in allowing the admission of
such evidence. 199 Courts have admitted almost uniformly depositions or other
former testimony into evidence under rule 32{a)(4) and rule 804(b)(l) when
the parties are situated in either a Pz against D1 or Dz against Pl posture,
and the issues between the former and subsequent actions are substantially
the same. 200
The question of whether to admit depositions or other former testimony
from a previous action becomes more difficult conceptually when additional
issues or parties are present in either the former or subsequent action. 201 For
example, in First National Bank in Greenwich v. National Airlines, 202 the plaintiffs sued National Airlines and Douglas Aircraft Company on behalf of four
passengers who died in the crash of a National Airlines passenger plane. 203
The plaintiffs moved for an order admitting into evidence depositions from
another case involving the same accident and to which National Airlines was
a party. 204 Thus, the posture of the parties regarding the depositions was a
Pz against D1 configuration. The United States District Court for the Southern
District of New York, however, denied the admission of the depositions pursuant to rule 26(d)(4), the predecessor to rule 32(a)(4). 205 The National Airlines
court observed that Douglas was not a party to the previous action and did
not receive notice of the taking of the depositions. 206 In addition, the court
noted that the subsequent case also involved a theory of liability which the
prior action did not contain and therefore excluded the depositions to prevent
any possible prejudice to Douglas. 207
The court in National Airlines cited with approval the same standard that
the Hertz court adopted for the admission of prior action depositions, requiring a substantial identity of issues between the two actions and a party-opponent
199. See DeLuryea v. Winthrop Labs., Inc., 697 F.2d 222 (8th Cir. 1983); In re Master
Key Antitrust Litig., 72 F.R.D. 108 (D. Conn.), aff'd, 551 F.2d 300 (2d Cir. 1976). But see
American Photocopy Equip. Co. v. Rovico, Inc., 384 F.2d 813, 816 (7th Cir.) (court refused
to permit defendant to introduce depositions against plaintiff who was defendant in earlier action
because plaintiff's interest was reverse of what it had been in first action), cert. denied, 390 U.S.
945 (1967).
200. See supra notes 196 & 199 (courts usually admit prior action depositions that party
asserts against party to previous action).
201. See 4 J. WEINSTEIN & M. BERGER, supra note 130, § 804(b)(l)[04], at 804-66 (additional
issues may affect motive to cross-examine, particularly when additional parties also are present).
202. 22 F.R.D. 46 (S.D.N.Y. 1958).
203. Id. at 47.
204. Id.
205. Id. at 49.
206. Id. at 48.
207. Id.; cf. FED. R. Evm. 403 (court may exclude relevant evidence if probative value "is
substantially outweighed" by possible prejudice, confusion of issues, potential of misleading jury,
or considerations of efficiency).

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in the previous case with the same interest and motive to cross-examine the
witness as the present opponent. 20 * Despite the court's approval in National
Airlines of the liberal standard that the Hertz court set forth, the court's analysis
follows to a significant degree the restrictive interpretation of Woljv. United
Airlines, 209 a Middle District of Pennsylvania holding that preceded Hertz,
and which required exactly the same issues and the same parties in both
actions. 210 The National Airlines court, rather than focusing on whether National Airlines had the same interest and motive to cross-examine the witnesses
in the previous action, noted that even if the additional issue in the subsequent action was not significant, the lack of identity of parties between the
two actions would create a problem with respect to the admissibility of the
depositions under rule 26(d). 211 If the National Airlines court had followed
the Hertz standard, the court should have evaluated whether National Airlines
had a similar motive to cross examine the witnesses in the previous action
to that which Douglas would have had in the subsequent action. 212 Similarly,
rather than analyzing whether the issues between the two actions were substantially the same, the National Airlines court only stated that the subsequent
action contained an additional issue. 213 Since both actions involved the alleged
negligence of the defendants, the mere addition of an issue is not necessarily
sufficient to justify the exclusion of the prior action deposition absent some
indication that the additional issue would have affected the manner in which
National Airlines conducted the previous cross-examination. 214
When a party present in both the former and subsequent actions asserts
the use of a prior action deposition or other former testimony against a party
present only in the subsequent action, a greater potential for unfairness arises
with respect to the party who was not present when the witness gave his
testimony than in the situation in which the party was present in the prior
action. 215 Questions concerning the interest and motive of the adversary to
examine a witness in the prior action and the adequacy of that examination

208. 22 F.R.D. 46, 51-52 (S.D.N.Y. 1958).
209. 12 F.R.D. I (M.D. Pa. 1951).
210. See id. at 48, 51-52.
21 I. Id. at 48.
212. See Hertz v. Graham, 23 F.R.D. 17, 20 (S.D.N.Y. 1958) (court should determine whether
previous opponent had same interest and motive in cross-examination), aff'd, 292 F.2d 443, 447-48
(2d Cir.), cert. denied, 368 U.S. 929 (1961).
213. 22 F.R.D. 46, 48, 51 (S.D.N.Y. 1958).
214. See supra note 157 (additional issue(s) in prior or subsequent case permissible if motive
to examine witness similar in both actions).
215. CJ. DeLuryea v. Winthrop Laboratories, Inc., 697 F.2d 222,226 (8th Cir. 1983) (plaintiff present in both actions); Hub v. Sun Valley Co., 682 F.2d 776, 778 (9th Cir. 1982) (defendant
not present in previous action); Insul-Wool Insulation Corp. v. Home Insulation, Inc., 176 F.2d
502, 503 (10th Cir. 1949) (plaintiff was party in both actions); Hewitt v. Hutter, 432 F. Supp.
795, 799 (W.D. Va. 1977) (plaintiff not present in action by defendant against defendant's agent),
afj'd, 568 F2d 773 (4th Cir. 1978); In re Master Key Antitrust Litig., 72 F.R.D. 108, 109 (D.
Conn.) (plaintiff not present in government's antitrust action against same defendant), aff'd,
551 F.2d 300 (2d Cir. 1976).

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are particularly relevant in determining whether a court may justify admitting
the former depositions or testimony when a party asserts the use of such depositions or testimony against a party who was not present in the previous action. 216
For instance, in Ikerd v. Lapworth, 211 the plaintiff, a passenger in Richard
Knoblett's car, filed suit in the United States District Court for the Southern
District of Indiana against the defendant automobile dealer for injuries she
sustained when the car allegedly crashed because of a stuck accelerator. 218
Subsequently, Knoblett filed a similar suit against the same defendant. 219 The
defendant offered the deposition testimony of two individuals that the defendant deposed after the plaintiff filed her suit but prior to the filing of Knoblett's
suit. 220 The Seventh Circuit held that identity of issues and "the presence of
an adversary with the same motive" to examine the witnesses was sufficient
to admit prior action depositions in a subsequent suit under the language currently in rule 32(a). 221 The Ikerd court indicated that Knoblett did not suffer
any prejudice by not having his own counsel present at the deposition or that
he would have asked any different questions of the deponents. 222
Although both the National Airlines court and the Ikerd court focused
on possible prejudice to a party against whom a deposition is asserted under
rule 32(a)(4), the Ikerd court's analysis more accurately achieves the purpose
of the rule in admitting only reliable evidence. 223 By using the concept of prejudice to exclude a prior action deposition without analyzing whether the additional issue and party in the subsequent action affected the motive of the
prior party-opponent to cross-examine the witness, the National Airlines court
seemed to equate prejudice with evidence not favorable to a party. The Ikerd
court's inquiry, focusing on whether the party in the subsequent action would
have asked different questions of the witness if that party had been present
in the prior proceeding because of different issues or parties in the subsequent
proceeding, relates to the adequacy of the examination of the witness and
thus helps to assure the reliability of the testimony. 224 The approach of the
Ikerd court under rµle 32(a)(4) is in accord with the Paducah court's analysis
under rule 804(b)(l), requiring that a party's opportunity to examine a witness
was meaningful. m By assuring that a previous party had a meaningful oppor-

216. See4 J. WEINSTEIN & M. BERGER, supra note 130, § 804(b)(l)[04], at 804-66 (additional
or different parties may affect motive to cross-examine witness).
217. 435 F.2d 197 (7th Cir. 1970).
218. Id. at 199.
219. Id. at 200.
220. Id. at 205.
221. Id.
222. Id. at 206.
223. See Hertz v. Graham, 23 F.R.D. 17, 22 (S.D.N.Y. 1958) (same motive and interest
requirement is intended to ensure adequacy of cross-examination), aff'd, 292 F.2d 443, 447 (2d
Cir.), cert. denied, 368 U.S. 929 (1961); supra note 1 (cross-examination provides assurance of
trustworthy and reliable testimony).
224. See supra note 223.
225. See supra notes 138-152 and accompanying text (analysis of "opportunity" to examine
witness under rule 804(b)(l)).

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tunity to examine a witness, a court attempts to insure that the witness'
testimony is thoroughly tested and therefore is reliable. 226
By preventing the admission of prior action depositions when a party would
be prejudiced or when a meaningful opportunity to examine the witness did
not exist in the previous action, courts are able to protect both the interests
of the judicial system and the interests of all parties in fairness and efficiency
while retaining sufficient flexibility to admit reliable evidence. 227 The ability
of the courts to meet these goals suggests the adoption of the more liberal
language contained in the Supreme Court's proposed version of rule 804(b)(l),
allowing the admission of former testimony when a party-opponent in the
previous action had a "motive and interest similar to" the party-opponent
in the subsequent suit. 228 Although Congress rejected the "motive and interest
similar to" language when it adopted the Federal Rules of Evidence in 1975, 229
the courts have continued to use the similar motive and interest test both under
rule 32(a)(4) and, to a more limited extent, under rule 804(b)(1). 230 The similar
motive and interest test has been the majority approach under rule 32(a)(4)
both before and after the adoption of the Federal Rules of Evidence. 231 Since
rule 802 of the Federal Rules of Evidence allows for the admission of hearsay
when the Federal Rules of Civil Procedure so provide, the goals of the Federal
Rules of Evidence, to obtain uniformity in the law of evidence and the elimina226. See supra note 152 and accompanying text (opportunity to cross-examine witness provides assurances of reliability of witness' testimony).
227. Cf. FED. R. CIV. P. 1 (courts should construe Federal Rules of Civil Procedure to
achieve just, speedy, and inexpensive determination of all actions); FED. R. Evm. 102 (Federal
Rules of Evidence designed to achieve fairness and efficiency); see also 4 J. WEINSTEIN & M.
BERGER, supra note 130, § 804(b)(l)[03], at 804-63 (trial judge may exclude prejudicial evidence
under rule 403 of the Federal Rules of Evidence although otherwise admissible pursuant to rule
804(b)(l)).
228. See FED. R. Evm. 804(b)(l) advisory committee note (relaxation of "parties" requirement under proposed version of rule 804(b)(l)).
229. See 11 J. MooRE, supra note 5, § 804.04[1], at VIII-261 (Congress rejected liberal parties
requirement in Supreme Court's proposed version of rule 804(bX1)).
230. See, e.g., Rule v. International Ass'n of Bridge, Structural and Ornamental lronworkers,
Local Union No. 396, 568 F.2d 558, 569 (8th Cir. 1977) (prior opponent with interest to crossexamine as thoroughly as present opponent satisfies rule 32(a)(4)); Lloyd v. American Export
Lines, Inc., 580 F.2d 1179, 1185-86 (3d Cir.) (former testimony admissible against party in subsequent suit under rule 804(b)(l) when party in previous action had "opportunity and similar motive"
to examine witness), cert. denied, 439 U.S. 969 (1978); Ikerd v. Lapworth, 435 F.2d 192, 205
(7th Cir. 1970) (prior action deposition admissible under rule 32(a)(4) if prior opponent had same
motive and interest to cross-examine witness and issues in both actions substantially same); In
re Johns-Manville/Asbestosis Cases, 93 F.R.D. 853, 856 (N.D. Ill. 1982) (former testimony is
admissible under rule 804(b)(l) when previous party had "like motive" for cross-examination);
Fullerform Continuous Pipe Corp. v. American Pipe & Constr. Co., 44 F.R.D. 453, 456 (D.
Ariz. 1968) (depositions are admissible under rule 26(d) [currently rule 32(a)] against defendant
who was not present in prior action because defendant in earlier action shared same interest as
defendant in subsequent action).
231. See supra note 88 and accompanying text (presence of adversary with same or similar
motive to cross-examine witness and substantial identity of issues is predominant view of federal
courts under rule 32(a)(4)).

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tion of unjustifiable expense, would be furthered by amending both rule 32(a)(4)
and rule 804(b){l) to reflect the similar motive and interest test for admissibility
of depositions or other former testimony. 232
Alternatively, the Supreme Court should amend the language of rule
32(a)(4) to conform to the language in rule 804(b)(l), thus allowing the admission of former testimony only against a party who was present or had a
predecessor in interest in a previous action when an "opportunity and similar
motive" to develop that testimony existed. 233 An amendment of rule 32(a)(4)
to mirror the language in rule 804(b)(l) would have the effect of creating a
more uniform standard for the treatment of prior action depositions among
the federal courts. 234
J.

RANDALL COFFEY

232. See FED. R. Evm. 802 (hearsay evidence is admissible under Federal Rules of Evidence
when Federal Rules of Civil Procedure so permit); FED. R. Evm. 102 (purposes of Federal Rules
of Evidence).
233. See H.R. REP. No. 650, supra note 39, at 7088 (congressional amendment of rule 804(b)(l)
allowing admission of former testimony when party or his predecessor in interest had an "opportunity and similar motive" to develop witness' testimony).
234. See supra notes 61-64 (contrasting "similar motive and interest" test under rule 32(a)(4)
with language of rule 804(b)(l)). While an admendment of rule 32(a)(4) to reflect the language
of rule 804(b)(l) would suffer from the lack of a clear definition for the term "predecessor in
interest," one commentary has suggested that the decisions interpreting the term "do not appear
to present major problems." ABA Section of Litigation, Emerging Problems Under the Federal
Rules of Evidence 302 (1983).