THOMAS FRIZZELL vs. WES PINE MILLWORK, INC. & another.

GOODMAN, J. This action arose out of a collision between two automobiles at an intersection in Pembroke. It is brought by Thomas Frizzell, a passenger in the automobile driven by one Ryder, against one Madore, the driver of the other vehicle, and Wes Pine Millwork, Inc., its owner. This action was tried together with five other actions, four against the same defendants by passengers in the automobile driven by Ryder, including an action brought by one Carfagna, and the fifth against Wes Pine Millwork, Inc. by the administratrix of the estate of a passenger in the vehicle driven by Madore. The jury found, in answer to a special question, that Madore was not negligent; judgment was entered for the defendants on December 16, 1974; Frizzell appealed from that judgment. His only contention, with which we need concern ourselves is

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that Ryder's deposition, taken by the defendants in the action brought by Carfagna, was erroneously admitted in evidence.

The deposition had been taken on November 5, 1974, in Oakland, California, by an attorney for the defendants. At the deposition there was no appearance for Carfagna, and neither Frizzell nor any of the other plaintiffs were represented in any way. The deposition was admitted against all the plaintiffs and without restriction [Note 1] on the ground that the cases had been consolidated for trial and that the plaintiffs, including Frizzell, had (as was conceded) received notice that the deposition was to be taken. In the circumstances of this case, neither of these reasons is a sufficient basis for the admission of the deposition.

The record does not disclose any order for consolidation pursuant to Mass.R.Civ.P. 42(a), 365 Mass. 805 (1974), and the trial judge's reference to a consolidation at a bench conference held just prior to the admission of the deposition on the third day of trial would seem to refer to the fact that the cases were actually being tried together. Since the joint trial had proceeded without objection it can be said that the cases were in fact consolidated for trial without a formal order of consolidation -- though the better practice would have been to enter a formal order. Kelly v. Greer, 295 F.2d 18, 19 (3d Cir. 1961). Johnson Builders, Inc. v. United Bhd. of Carpenters & Joiners, Local 1095, 422 F. 2d 137, 138 (10th Cir. 1970). However, the de facto consolidation at the commencement of the trial did not make Frizzell a "party . . . who had due notice [of the taking of the deposition]" within the meaning of Mass.R.Civ.P. 32(a), 365 Mass. 787 (1974), "Use of Depositions." It is true as the defendants point out, that "[a]ll errors and irregularities in the notice for taking a deposition [we]re waived", absent written objections promptly served. Mass.R.Civ.P. 32 (d) (1), 365 Mass. 789 (1974). However, this

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did not obviate the basic requirement that Frizzell be a party at the time the deposition was taken (or at least some time prior to trial; see discussion, infra) if it was to be used against him at trial upon the deponent's unavailability. Hoffler v. Wheeler, 179 A.2d 909, 910-911 (D.C. Mun. App. 1962). Brown v. Tanner, 164 So.2d 848, 850-852 (Fla. App. 1964). See Application of Royal Bank of Canada, 33 F.R.D. 296, 301-302 (S.D.N.Y. 1963). Such use at trial is premised on a prior right to cross-examine the deponent. But the rules gave Frizzell no right to cross-examine at the deposition in the Carfagna case; only parties are given that right under Mass.R.Civ.P. 30(c) and 43 (b), 365 Mass. 783 and 806 (1974). Rule 30 (c) provides that: "Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43 (b)," which provides for examination and cross-examination by a "party." The identity of the parties who have the right to cross-examine must ordinarily be determined as of the time the deposition is taken; that determination cannot be made retroactively through a subsequent consolidation if it is then too late for a party to avail itself of the opportunity to cross-examine. Cf. Fullerform Continuous Pipe Corp. v. American Pipe and Constr. Co. 44 F.R.D. 453, 456 (D. Ariz. 1968). Similarly, e.g., Rule 30 (d), 365 Mass. 783 (1974), which gives "any party" the right to move to terminate or limit the examination "[a]t any time during the taking of the deposition," must speak as of the time of the deposition. Hoffler v. Wheeler, 179 A.2d at 911.

However, Rule 32(a) of the Federal Rules of Civil Procedure (formerly Rule 26[d]), which our Rule 32(a) tracks, has been read to make admissible a deposition when the purpose of the rule -- "to ensure that the deposition is taken under adversarial circumstances" -- is substantially satisfied. Ikerd v. Lapworth, 435 F. 2d 197, 205-206 (7th Cir. 1970). See Rivera v. American Export Lines, Inc. 13 F.R.D. 27, 28-29 (S.D.N.Y. 1952); Hertz v. Graham, 23 F.R.D. 17, 20-23 (S.D.N.Y. 1958), cert. den. 368 U.S. 929 (1961); Fullerform Continuous Pipe Corp. v.

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American Pipe & Constr. Co. 44 F.R.D. at 456. Cf. George R. Whitten Jr. Inc. v. State Univ. Constr. Fund, 359 F. Supp. 1037, 1039 (D. Mass. 1973), aff'd 493 F. 2d 177 (1974). In the Ikerd case a passenger in an automobile and its driver both sued the seller of the vehicle in separate actions which were consolidated for trial; the court held admissible against the driver depositions taken by the defendant in the action by the passenger. The court pointed out that, though the action by the driver had not yet been brought when the depositions were taken in the passenger's case, counsel for the passenger was present at the taking of the depositions, and there was substantial identity of factual and legal issues. The court further pointed out that at the trial the passenger's counsel (with the driver's agreement) took the leading role for both plaintiffs. The court thus rejected the driver's argument that he was prejudiced because he had not had an opportunity to have his own counsel present at the deposition. In this case, unlike the Ikerd case and the other cases cited above, the circumstances are quite different. Here there was no cross-examination of the deponent at all; only counsel for the defendants was present. It is one thing to require a litigant, not a party when a deponent is examined, to rely on the cross-examination by a party with the same interest (but see Falknor, Former Testimony and the Uniform Rules: A Comment, 38 N.Y.U.L. Rev. 651, 655 [1963]); it is quite another matter to bind a litigant to the decision of such party not to attend at all. Carfagna's decision not to participate in California may have been based on considerations (e.g., the amount at stake, Carfagna's financial condition, access to California counsel) quite different from those which might have motivated Frizzell.

We have found no case in which a deposition has been held admissible against one who was not a party when the deposition was taken and the deponent had not been subjected to some cross-examination by another -- or where there had been no opportunity subsequent to the deposition for further examination of the deponent. See Fullerform Continuous Pipe Corp. v. American Pipe & Constr.

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Co. 44 F.R.D. at 456, and Hertz v. Graham, 23 F.R.D. at 23. In each of these cases an order was sought to use a deposition in sufficient time before trial to give an opportunity for further examination of the deponent. Here no such pretrial order was apparently sought; the issue only arose at trial when the deposition was offered. At that point Frizzell had, of course, no opportunity to examine the deponent.

Further, Wigmore, who influenced the extension of Rule 32(a) of the Federal Rules in the cases we have cited, posed the issue in connection with the admissibility of former testimony generally as "whether a thorough and adequate cross-examination has been had." Wigmore, Evidence, Section 1388, at 102 (3d ed. 1940); Wigmore, Evidence, Section 1388, at 118 (Chadbourn rev. 1974). He stated the principle to be "that where the interest of the person was calculated to induce equally as thorough a testing by cross-examination, then the present opponent has had adequate protection for the same end." Wigmore, supra (3d ed.) at 95; (Chadbourn rev.) at 111. [Note 2] We do not read him as advocating

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admission of a deposition in a case such as the present one.

For the same reasons -- viewed as a matter of the rules of evidence (see Mass.R.Civ.P. 43[a]) -- we would not (assuming that it were appropriate for this court to do so) extend to this case the common law hearsay exception for former testimony, presently admissible when it has been given in a suit between the same parties or their privies. Welles v. Fish, 3 Pick. 74, 76-78 (1826). Commonwealth v. Richards, 18 Pick. 434, 437 (1837). Warren v. Nichols, 6 Met. 261, 264 (1843). Yale v. Comstock, 112 Mass. 267, 268 (1873). Ibanez v. Winston, 222 Mass. 129, 130 (1915). Commonwealth v. Glassman, 253 Mass. 65, 74 (1925). Leach & Liacos, Handbook of Massachusetts Evidence, 192 (4th ed. 1967). Hughes, Evidence, Section 464 (1961).

Judgment reversed.