Shields v. Reddo

Reddo v REDDO SHIELDS 6). (Calendar 1, De- Argued No. 81575. November Docket No. July 1989. cided Shields, guardian children of and as for herself Debra deceased, Shields, personal representative his and James estate, dramshop Court brought in the Circuit a action Oakland others, wrongful death of her against Joseph for the Reddo and alleged patron plaintiff of the defendant’s that a The husband. had been a motor vehicle her husband with who had struck bar trial, court, During visibly intoxicated. while alcohol served testimony Kuhn, J., deposition ruled that D. Richard inadmissible, absent a employee of the bar owner was former deponent plaintiff unavailable to showing by was that the Thereafter, jury a verdict testify person. returned driver, part liability of the bar against on the found no but Jr., P.J., Appeals, and Sulli- Holbrook, The Court of owner. 88961). (Docket JJ., affirmed Warshawsky, No. M. and van plaintiff appeals. The joined by Justice opinion by Griffin, Chief Justice In an Su- Boyle, Brickley, Cavanagh, and Riley, Justices preme Court held: employed testimony by a Deposition who was a arose, an action occurrence out of which at the time of an longer employed when no but who was taken, in evidence without deposition is not admissible was testify deponent at trial. finding is unavailable to that the of hear- Ordinarily within the definition falls 1. except as say Evidence and is not admissible under the Rules of case, of this provided by the circumstances the rules. Under hearsay. deponent properly was excluded was owner, and because she bar of the defendant a former was employed when the the defendant was not 801(d)(2)(D). excepted testimony under MRE given, is not her 804(b)(1) excepted former under is the Nor References 2d, Discovery etseq. Depositions §§ Am Jur Depositions; Wit- Unavailable under to Annotations See the Index nesses. 432 Mich showing deponent because no was made unavailable to at trial. 32(a), counterpart, 2. Unlike FR Civ P its federal 2.308(A)(1) provide exception does not to the rule independent of the Rules of Evidence. There are crucial differ- phrasing ences the and histories of the two rules which preclude Michigan construction of the rule in the same manner as the federal rule. require 3. Considerations of fairness that the limitations of 801(d)(2)(D) rule, party-opponent apply the admission to 2.308(A)(1)(b). deposition testimony offered under MCR history provision suggests of that that the Court did not intend to deviate from the traditional limitations of the Rules of Evidence. hearsay expression 4. The rule is a concrete of the common- preference testimony subject law for in-court oral to cross-ex- Michigan preserve pref- amination. The Rules of Evidence the erence, Supreme expressed emphatically and the Court has the preference by specifically rejecting the federal "catch-all” ex- ceptions hearsay the rule. Under the circumstances of this case, deposition properly the excluded. Affirmed. Levin, writing separately, Justice stated that the Rules of 2.308(A)overlap respect Evidence MCR to the admis- depositions. sibility of The clause "so far as admissible under 2.308(A) evidentiary of rules evidence” in MCR concerns questions questions concerning other than so-called "first-level hearsay” regarding admissibility deposition. Reading of a 2.308(A) providing deposition may Rule that a of a witness only deposition may if be used also be used under the Rules Evidence, i.e., barring deposition unless it is admissible Evidence, 2.308(A)superfluous. under the Rules of renders Rule deposition testimony person expert If the of a who is not an 2.308(A), which is admissible under MCR nevertheless is not (unless hearsay hearsay admissible because it is ceases hearsay exception reason of the definition of or an under the 2.308(A) Evidence), might Rules of then MCR as well be a page. blank If far "so as is admissible under the Rules of Evidence”

means, holds, majority as the of an em- ployee “who at the time of the transaction or occurrence out of (MCR 2.308[A][l][b]) which the action arose” is not admissible hearsay hearsay exception unless either or within a under Evidence, the Rules of then "officer, director, —the of a who anwas v Reddo taking agent party” "at the time (MCR 2.308[A][l][b]) deposition” unless the is not admissible agency scope his "a matter within concerns (MRE employment” 801[d][2][D]);and deposition testimony at a of a witness who resides —the place greater fifty trial than miles from distance (MCR 2.308[A][CJ[iii]) admissi- is not unless either admissible exceptions hearsay Rules of under in the ble the first-level witnesses, which not include unavailable do Evidence for place within definition of trial distance from hearsay exception unavailability, or exclusion or some other applies. hearsay perchance definition from 2.308(A) The Court The wisdom of Rule is indeed debatable. Court, change majority adopted it. The and a can rule resulting adopted 2.308(A), responsible having Rule obscurity meaning. The make Court should fairness prospective. today’s changing fully rule decision Archer, dissenting, stated while Justice pursuant in this case should have been admitted 2.308(A)(1), subjected to the have been its substance should portions Only scrutiny rules. those either compliance with a in which not constitute did hearsay exception have admitted. was established should been 2.308(A)(1) by requires trial a consideration a MCR two-fold Initially, rules to trial court look to the court court. the should i.e., document, irrespec- deposition as a determine whether contents, deponent may was its where the tive of admissible giving employee time of or occurrence an at the the transaction litigation. to be is determined rise to the Once the document admissible, admissibility by the Rules extent of is limited Evidence, consider substantive the trial court must upon and determine basis content sought to be introduced. the statements are (1987) 175; App affirmed. NW2d Employees. Depositions — — Former Evidence by by employed a Deposition testimony who was arose, but of which action the time of an occurrence out at employed by longer no when was who taken, finding that without a is not admissible in evidence was (MRE testify deponent trial is unavailable at 801[d][2][D]). Gage Moore) Bushnell, Scott D. & Reizen (by the plaintiff. 432 Mich 761 Opinion op the Court Malloy, Maybaugh (by Holahan, & Monnich J. (Plunkett III); Malloy, Cooney, by P.C.,

Michael & counsel) Bazzana, John P. Jacobs and Ernest R. for the defendants. dramshop action,1 J. In this we are Griffin,

required deposition given by to decide whether the a former of the defendant bar owner was despite trial, admissible as evidence at the rule against hearsay, plaintiff where had made no showing deponent was unavailable to person. Contrary plaintiffs contention should have been admitted 2.308(A)(1)(b), rule, under a court clude that we con- admissibility by its is controlled hold, Rules of Evidence. We stances of this under the circum- prop- case, was erly hearsay, excluded as and the decision of the Appeals Court of is therefore affirmed.2

i morning April At 11, 2:30 on the James standing highway Shields was on the shoulder of a where his car had broken down when he pickup struck and killed Patrick Grandstaff. A blood truck driven

sample drawn from Mr. Grandstaff a few hours later indicated a blood percent.3 alcohol accident, level of 0.12 Prior to the drinking Mr. Grandstaff and a friend had been Lounge, Joe’s Moravian defendant, owned 1MCL436.22; MSA 18.993. opportunity promulgate We also take this amendments to MCR 2.308(A) 804(b), holding and MRE consistent with our in this case. The possibility litigation amendments will eliminate the of future over other 2.308(A)

perceived Michigan conflicts between MCR and the Rules of Evi appears Appendices b and c. dence. The text of the amendments in 3 Michigan provides Vehicle Code that a who has a blood percent presumed alcohol level of 0.10 or more is to be under the influence 9.2325(l)(3)(c). intoxicating liquor. 257.625a(3)(c); MCL MSA Shields Reddo Opinion op the Court Joseph Reddo.4 The pa- two men frequent were trons of the bar. Mr. Grandstaff arrived at the bar at about 8:00 on April 10 left at about p.m. 1:30 a.m. April on 11. action,

Plaintiff Debra brought seek- ing damages wrongful for the her death of hus- act, 436.22; band under the dramshop MCL MSA 18.993. alleges She that Mr. had Grandstaff been served alcohol at visibly bar he while hand, intoxicated. On the other the defendant bar owner contends that Mr. GrandstafFs intoxication was caused by drinking which occurred after he left the bar.5

Patricia Dudash was an of the defen- dant bar April owner on 10 and 1980. How- ever, she was not on employed by defendant June 13, 1983, when, with Mr. attorneys for Grandstaff defendant present, provided she plaintiff’s which tends to support allega- tions. trial, 16, 1985,

At which began September plaintiff moved that be admitted as 2.308(A)(1)(b). evidence under The trial court ruled that the deposition testimony was inadmissi- plaintiff ble the absence of a showing by that Ms. Dudash was unavailable in person.6 appeal, Reddo, Joseph only For convenience in this we refer owner bar, Although of the fendant, as the defendant. Patrick Grandstaff is named de appeal entry judgment against no was taken from the below Casualty insurer, Company, him. Ohio Insurance Mr. Reddo’s is also defendant; however, purposes appeal, as a named of this its interests are the same as Mr. Reddo’s. directly Mr. Grandstaff testified he drove from the bar the acci However, undisputed only dent scene. it is that to drive that route takes minutes, leaving twenty unexplained gap forty about of about min police shortly One utes. officer who arrived at the scene after accident cab, empty to one testified in addition beer can he observed thirty empty about beer cans the bed of Mr. truck and GrandstafFs partially open. Mr. the window at the back of truck cab was Grand- he no staff testified that drank beer between the time he left the bar and the accident. said, judge "according The trial to the Rules of if that Evidence 761' 432

766 of Court jury of Thereafter, returned a verdict against Grandstaff, found no li- $325,000 but Mr. part ability of the defendant bar owner. on the part claiming appealed, of on the error Plaintiff the trial court excluding deposi- the Dudash Appeals affirmed,7 and we then tion. The Court granted (1988). appeal. Mich 857 430 leave

ii question heart, face is one At its we relationship procedure our rules civil between Both of rules of Evidence. sets and our Rules admissibility relating provisions to the contain deposition testimony. deposition Ordinarily, a falls hearsay as set forth in within the definition statement, "a other than one Rules of Evidence: testifying the trial made the declarant while prove hearing, the truth in evidence or of the matter asserted.” offered 801(c). Furthermore, MRE deposition, of Evi- the Rules in the of this case hearsay provide rule.8 around the dence no avenue deponent] miles [referring, apparently, is 50 to the available within deposition].” appears you It going to the that rule that cannot use [the Court’s 2.308(A)(1)(c), referring rather than to court was to MCR ofEvidence. Rules (1987). Grandstaff, 175; App 161 Mich NW2d Shields v qualify nonhearsay under MRE does not 801(d)(2)(D) employed the defendant Ms. Dudash was because taken: when (d) hearsay. A not hear- which are not statement Statements say if— (2) by party-opponent. The statement is offered Admission (D) agent against his or servant is. . . a statement a employment, scope agency concerning of his a matter within relationship. during . . . the existence of the made exception Moreover, qualify under the does not showing deponent that the there was no for former was because 804(b)(1)provides: at trial. unavailable v Reddo Opinion op the Court appears time, At the same the Dudash deposition (b) purview subparagraph fits within the 2.308(A)(1), pertinent part

of MCR which in reads:

(1) At part the trial ... all of so far as admissible the of under rules evidence may against be party used a who was or in represented at the of taking deposition the ... any accordance with of following provisions: the (b) deposition The party anyone of a or who at the time of the transaction or occurrence out of the action arose taking or at the time of the deposition agent officer, director, an was employee, or party may party be used an adverse any purpose. 2.308(A)(1)(b), At is issue whether MCR hereinafter (b),” "subparagraph sometimes referred to as tois independent exception be general construed as the hearsay strictures of If the rule. that is deposition case, the then the Dudash should have been admitted. exceptions

That rule the are not explicitly be found in court in rules declared "Hearsay Rules Evidence: is not admissible provided except as these rules.” 802. added.) (Emphasis Significantly, unequivocal promulgated by declaration in was this Court already 1978, when the court rule in exis- Hearsay exceptions. following are not excluded the hear- say if rule the declarant is as a unavailable witness: (1) given testimony. Testimony Former at a witness another hearing proceeding, the same a different in a compliance in with taken law in the course of the same another against offered, proceeding, or, party if whom is now proceeding, predecessor interest, a civil action or had an develop direct, opportunity testimony by and similar motive to cross, or redirect examination. 432 Mich 761 op the Court presumably, into fence, and, existence taken its question, Moreover, rule the court account. appeared always to the 2.308, to defer has Evidence: Rules of (1) motion, trial, hearing a or a At the or the on a deposi part or all of a

preliminary proceeding, tion under of evi far as admissible rules so pres may against a who was dence be used taking represented ent or it, in notice of accordance or had reasonable .[9][Emphasis . . . any following provisions added.] argues emphasized

Defendant words require to use a who seeks objection to admis- to overcome valid evidence sibility including Evidence, Rules on the based objection itself, and state- the ments plaintiff hearsay. hand, it, the other are On within responds qualifying should words applied deposition, only to the contents of regard to fact that the statements without deposition statements, are made in out-of-court hearsay objection that the is not available so 9 2.308(A)(1)(b) immediately preceding pro- subparagraph MCR The vides: (a) deposition may purpose for the of im- A be used deponent

peaching for of the the as a witness or permitted by Michigan purpose of Evidence. other Rules [MCR 2.308(A)(1)(a).Emphasis supplied.] wording argued subparagraph supports has that the of this It been designed provide independent rule is hear contention that say court (a), however, exception testimony. Subparagraph pre for no with the Rules of Evidence. The use testi sents conflict purposes general by mony impeachment in for is sanctioned Rules 2.308(A)(1)(a) Evidence, Thus, particular by in MRE 613. cannot depositions contemplate any under which would said circumstances be be covered the Rules of Evidence. This admissible are not also v Passino, analysis in Socha 405 is consistent with the Court’s observation Mich (1979), 458; in n 27. 243 discussed NW2d v Reddo Opinion of the Court respect to a which otherwise conforms 2.308(A)(1).10 to the criteria of MCR

hi plaintiffs altogether implausi view is not argued contrary interpreta ble. It can be that a 2.308(A)(1) tion of MCR tends to render much of superfluous light conflicting provi the rule sions in the Furthermore, Rules of Evidence. our 32(a), patterned court rule is is construed as after FR Civ P plaintiff Michigan contends the rule should be construed:12

A deposition may be excluded if it is irrelevant or if in respect some other deponent what the said evidence, does not satisfy the rules of but the fact deponent is not in court and that it is his out-of-court statement being ground read is not in itself Miller, objection. Wright & Federal Practice & [8 Procedure, 2143, p § 453.] That the federal construed, rule was to be so interpretation Plaintiffs of this rule invites the Court to answer the whether, question which, provisions broad or the extent to of MCR conflicting provisions Michigan 2.308 are subordinate to of the Rules of Evidence, pre as these rules were codified in 1978. The narrower issue case, however, requires only sented that we determine whether recognized presented the framers of the court rule the conflict in the in case, "trump” stant and intended the court rule to rules of evidence that prohibit otherwise would employee the use of the out-of-court statement of a former showing as substantive evidence without a that the former em ployee was unavailable to at trial. Our answer is limited opinion to the resolution of that narrower issue. The itself does not ad potential posed by juxtaposition subprovi dress other sions of MCR 804(a). conflicts 2.308(A)(1)(c) Evidence, particular with the Rules of essentially Appeals This is the conclusion of the Court of in Beachum Associates, v Bay Valley 412, 418-419; (1982), App 120 Mich 328 NW2d 54 (MCR 1963, 302.4(3)[3] in relation to the conflict between GCR 804(a). 2.308[A][l][c][iii])and MRE We do not address the issue raised in Beachum. 12 Appendix side-by-side comparison provi See a for a of the relevant sions of the two rules. 770 432 Mich op the Court however, 1970, settled until when the was not though "applied then the witness were as words testifying” present P FR Civ inserted.13 and were 32(a). plaintiff heavily Although in- on the relies finally given terpretation rule as clari- the federal amendment, the crucial differences fied history federal of our rule and the between rule undermine this reliance.14 general First, this has never amended the Court depositions, paragraph rule on the use our 2.308(A)(1), phrase "applied to MCR add now though present then and witness were as sig- any testifying,” to that effect. More words original nificantly, federal of both the versions "objection provided rule rule and our court may hearing receiving to made at trial be part any in evidence thereof require the exclusion reason would present if then and the witness were evidence added.) (Emphasis testifying.” 35, Court Rule No 26(e). 6(d)(5) phrase, (1945); FR Civ P This it can § argued, effect as the words in achieves same be 32(a) though "applied P as the witness FR Civ testifying,” immunizing present and then were depositions hearsay objections. threshold from advisory pertinent part note The reads: committee’s 32(a), change whereby A is in new Rule it is made clear made depositions applied offered at that the rules of evidence are though deponent present testifying at were then and trial possibility This of certain technical trial. eliminates based, deponent’s objections not on the contents of testi- which are language mony, 26(d) Rule but on from court. The his absence objections, appear to authorize these technical but does entirely is not clear. 2.308(A)(1) covering subject first matter of MCR The rule (1952). 35, 6(d) (1945), adopted No in 1952. 334 xli Sec Court Rule § 6(d) 6(d)(2) parallel provisions were then identical § tion 26(d)(1) (2). rule, then The rule PR Civ P was amended federal GCR1963,302.4(1)-(3). comprehensive emerging revision of version, 2.308(A)(1)(a)-(c), virtually ver to the 1963 identical sion. Reddo Opinion of the Court

The federal rule still provision, contains such a found within Rule under the heading "Objec- 32(b).15 tions to FR P Admissibility.” Michigan, Civ however, in the major first revision of court rules following adoption Evidence, of the Rules of de- phrase leted the from its subsection labeled "Ob- 2.308(B). jections to Admissibility.” MCR The com- ment which accompanied the proposed revision language stated that being deleted "be- cause this area is now covered MRE 804.” by 402A (1978).16 Mich 194 indicating

The comment admissibility now "covered MRE 804” by accords MRE 802: is not "Hearsay except admissible as provided by contrast, these rules.” In the Federal Rules Evidence state that is not admissible ex- by cept provided as rules of evidence "or prescribed Supreme pur- other rules Court statutory authority suant Act of Con- gress” FRE 802. Obviously, the cross reference harmonizes the Federal Rules of Evidence with FR 32(a) P Civ which calls for the rules to be applied though "as the witness were present then testifying,” phrase the critical from our missing 2.308(A)(1). Moore, MCR See 4A Federal Practice (2d ed), 32.02[1], p 32-11. ¶

Despite these differences between our rule and rule, the federal the question whether our court rule is to be construed the same as the way open. federal rule has remained On numerous Michigan appellate occasions courts have taken 15 Wright provision "reinforcing]” and Miller describe this as phrase "applied though testifying” as witness were then 32(a). Miller, Wright supra, p in FR CivP & 453. comment, Martin, Webster, acknowledging nev While Dean & significance” ertheless conclude that should be attached to the dele "[n]o (3d ed), 2.308, 5, phrase. Michigan tion of the Court Rules Practice Rule n p285. 432 Mich op the Court phrase under the "so far as admissible note rules of 2.308(A)(1), none but evidence” question us.17 now before has addressed

IV phrase "so have Plaintiff would us construe under rules of evidence” far as admissible MCR 2.308(A)(1) by the if it were modified though "applied then the witness were words though testifying,” Court and even qualification, adopt to thus far such has declined wording has, fact, in an- and other subsection deleted similar plain language of MCR 2.308. The point against history the rule to and interpretation of tend urged by plaintiff; however, the de- today on we reach is also based broader cision grounds. our so as "to

We are instructed construe rules speedy, just, secure the and economical determina- consequences every of and avoid tion action rights error does not affect the subtantial parties.” (Emphasis supplied.) MCR 1.105. If plaintiff MCR were to hold with we 2.308(A)(1)(b) Ms. Dudash’s ad- makes against for- evidence her missible as substantive mer negating, amending employer, we would be 801(d)(2)(D), implication, precludes use such of her because statements "during exis- forth were not made set therein relationship.” [employment] tence of the requires effect, In this case us choose between (1) holding preserve traditional hear- that would 17 Baun, 109, 115; See, example, 101 Banaszkiewicz v 359 Mich Insealator, Wallace, (1960), 233, 252; Inc v Mich 98 NW2d 306 357 NW2d Chrysler (1959), App 192, 205; Kueppers Corp, v NW2d 108 Mich 310 643 Livonia, v St Mary Hosp (1981), 11, 13; App 121 Mich 328 Fassihi 327 Beachum, Engineering supra, (1982), Lenzo v Maren n 132 and NW2d (1984). Corp, 362, 366; App NW2d Reddo Opinion of the Court say protection 801(d)(2)(D), (2) set forth in MRE 2.308(A)(1) interpretation urged by of MCR plaintiff which would establish the court rule as independent hearsay exception. an in For assistance

determining plaintiffs interpretation whether "just,” would be we turn to a closer examination history policy considerations which 801(d)(2)(D) underlie each of the rules: MRE 2.308(A)(1)(b). 801(d)(2)(D) A. MRE Under evidence, the common-law rules of as well as under the Evidence, Uniform Rules of the state- party’s employee ment of a nonhearsay is admissible aas party only

admission of the if the agency, statement meets the usual it was made scope is, test of acting while in the employment. Uniform Evidence, Rules of 801(d)(2)(iv), p Michigan ULA, Rule 682. The Rules of Evidence and the Federal Rules of Evi- dence have liberalized the traditional

rule some- by providing what that such a statement is to be nonhearsay merely treated as if even concerns a scope employment. matter within the at the same However, time, the liberalized rules have care- fully important qualification retained the that the by statement during must have been made employment the existence of the relation- ship.18 qualification This venerable would be ne- (b) gated subparagraph if we were to hold that independent exception hearsay stands as an rule. to the today, required Until this Court has not been principle qualifica- defend the embodied in that 18See, v Metz, example, (1885), 612, 615; for North 57 Mich 24 NW 759 Champlin, J., "grave in which evidence condemned as the admission in error[ ]” against signed by the defendant of a certificate a witness after employed by the witness had ceased to be the defendant. 432 761 Opinion of the Court rule is de- hearsay that tion. It is axiomatic that evidence considered signed to assure subjected, excep- with limited trier of fact has been tions, trial. The at to the test of cross-examination exceptions set forth MRE and hearsay offer, independent some least theoretically, at the fact that compensate for reliability bases of not statement is avail- hearsay the declarant of a trier of fact. cross-examined before the able to be hand, made the other the statement On "nonhearsay,” repre- party-opponent, denominated in that it embodies no exception sents a rare of McCor- inherent assurance trustworthiness.19 (3d mick, ed), §262, p 775. See also Evidence hearsay rule A reconsideration Strahorn, admissions, 85 U Pa L R (1937), Note, FRE 801. Committee Advisory admitting a party-opponent rationale rule, statement, despite "rests that upon notion the circumstances evaluating it was made furnish the trier means of upon adversary theory litiga- but fairly, hardly he no object tion. A can that had to cross-examine himself or that he is opportunity speaking of credence save when under unworthy Morgan, of an Basic Problems of sanction oath.” 266. Evidence nonhearsay by party oppo The rationale for the status of statements interest, against confused the rationale for statements nents often 804(b)(3), presumed reliability of which is on the based converse proposition The confusion is lies are motivated self-interest. given "party-opponent the rule is referred to understandable ” rule, despite admission not be an "admis the fact that a statement need ordinary meaning qualify "party-opponent

sion” in word to as a Although frequently party-opponent do fall admission.” admissions interest, against category necessarily is not within the statements against Party-opponent in the case. admissions need not be statements admissible, nor, they are statements which can be when terest all to be necessary, against is it as under the construed as the interest exception, statements-against-interest the statements have been against party’s they interest at time were made. Shields v Reddo op the Court put colloquially,

To admissibility it more party-opponent springs statement from a sense of captured phrase, fundamental fairness in the "You you’re it; hearsay said operates stuck with it.” The rule prevent being from "stuck” opportunity with what others have said without an challenge directly to However, them before the trier of fact. given reason,

there is no the adversarial system, protec nature of our to extend the rule’s party’s tion to a own statements. In the more elegant century jurisprudence: words of nineteenth general exceptions— "[T]he rule is—and it has few acts, that a man’s conduct, declarations, and wher provided they voluntary, made, ever are admis against presume him, sible they as it is fair to correspond with truth; and it is his fault if they (1849). Truby Seybert, do not.” 12 Pa explains why party’s

While this rationale own against despite statements are admissible him explanation rule, satisfying such an is less party’s agent when the statement is made or servant. Nevertheless, the rationale continues apply, albeit with area, diminished force. In this persons law, other areas we hold responsible agent for their choice of an or em- ployee, consequently spoken and for words they during actions taken chosen, those have period they of time choose to maintain the relationship.

Although justification party-opponent for the admission has been extended without undue dis- agents employees comfort made to statements of during relationship the existence of their party, with the we believe the rationale would be beyond breaking point stretched relationship if, after the any subsequent terminated, state- ment made a former were to be 761 op the Court purposes evidentiary it the if were for as treated employer’s quialism, return to our collo- own statement. To "sticking” of

the fundamental fairness employee’s employer statement is one who is an with an by only if the is made served an The fairness that statement employee made.20 at the time the statement is

problem compounded by the fact is employee, unknown after not for an is relationship, to a to hostile termination of the former be employer.21 requires to whether

The instant case us consider single analysis significantly the is altered this fact that an ex-employee’s is made via statement deposition. 2.308(A)(1)(b)

B. MCR Having supports reasoning the which examined tion of King King Enterprises tion was taken: Friedenthal, New Texas, ing ployee’s purpose showing stantive evidence position tent or of a current so that the employer less a former ee’s ployer 1164 (CA 10, 1981). explaining why A Among whether employee subject At least Discussing the use of majority York, & has a misleading statements against any party former those at unavailability. speak employee’s R employee’s deposition they Kane employee, one of provide trial, have been in the 3117; much control opportunity California, testimony jurisdictions, few FR Civ or who had reasonable may federal court against & jurisdictions Professor Friedenthal and thus can be utilized as Wisconsin, Miller, be those statements, P because used employer an 32(a)(2) Texas, as that of "[ejvidence may § to consult with who Champlin 2025(u); Connecticut, employee’s deposition Civil of an admitted as substantive evidence without employer only however, employ has R evidence whose court rules authorizes R 207. Procedure, ordinary testimony against 804.07. made at the time the employer. concern that an pointed an Petroleum do not adverse notice under Id. at trial. an Only be witness writes, "[ajrguably, when the employee § used specially Instead, fairly 7.17, p 419. thereof,” represented oath, under the court rules of use of witness, Co, § at the time the as evidence do by any 248; for as a ordinary against will not be 657 F2d classify depositions deponent prior purposes they authorize Minnesota, could the policy employer, all treat an em- to require employee an was taken. 1147, against discovery, reason in inadver- was in of decid- employ- party.” for deposi- deposi- taking much R sub em- use 32; an a Shields v Reddo Opinion op the Court the protection from provided by 801(d)(2)(D), we turn now to consider whether different, supervening undergirds rationale 2.308(A)(1)(b) that would justify removal of this protection with respect to an deposi- out-of-court tion statement made a former employee. A superficial review of the history subparagraph (b) might suggest this Court deliberately elected to make deposition ex-employ- ees despite admissible the hearsay rule. Closer examination, however, reveals a different story.

Adopted original subpara- version of (b) graph mirrored its federal counterpart and was compatible with limitations of the party-opponent provision admission of the Rules of Evidence.22 However, the Michigan rule was significantly al- tered in 1963 when our court rules and statutes relating to the were judiciary the subject of a comprehensive revision. Differing thereafter in im- portant respects from its counterpart, federal Michigan version which emerged in 1963 was iden- 2.308(A)(1)(b). tical to the present MCR Committee comment the 1963 accompanying revision observed that the language provision that is now 2.308(A)(1)(b) had been modified

so as to be consistent with Mich [MCL 617.66] [replaced Stats Ann by 600.2161; 27.915 MCL MSA dealing right with the to call an 27A.2161] adverse party as a at resulting change witness trial. The is that agent of any or employee of a (rather party than just "managing agents”) may purpose. Furthermore, be used for any provi- party anyone taking of a or of at the time of who officer, director, managing agent pub was an private corporation, partnership lic or or association which is a party may party any purpose. be used an adverse Rule [Court 6(d)(2) (1945).] No § op the Court employees who were such applies agents sion out of which the time of the transaction employees agents action arose as well Honigman & time taken. was [2 (2d ed), Hawkins, Michigan Court Rules Annotated Notes, 1963, 302.4(2), p Committee GCR 56.] course, the state- Court not bound Of committee ments of those on a who served changes. proposed Nevertheless, com- rule their understanding pur- helpful ments can be change. poses In this underlie such rule our instance, that committee comment states departure Civil Proce- from the Rules of Federal bring provision into con- dure made to formity focus with adverse statute.23 The admissibility testi- of that statute is not on the mony general, al- but on the latitude rather presumptively questioning wit- lowed in adverse ness and effect of an adverse witness’ answers calling party’s ability to introduce other on the evidence. parties

A common-law rule is traditional are the witnesses "bound” (Chadbourn rev), they Wigmore, 3A call. Evidence rule, §§ In it was 896-918. accordance prior widely held, the adverse enactment of parties 1909,24 were not al- statute in 23 state, proceeding party, any In suit or in court either behalf, opposite party, if he ployee em shall call a witness his agent opposite party, any person or or said who at happening time of the out such transaction of which suit proceeding grew, agent opposite party, employee an of the right shall to cross-examine such the same if he have witness opposite party; of such were called answers witness right party of such evi shall not interfere with dence party accept to introduce upon any proceeding, issue involved in such suit or and the calling examining so such witness shall not bound 600.2161; true. such answers as MSA [MCL 27A.2161.] 24 1909PA 307. Shields v Reddo Opinion of the Court impeach credibility

lowed to cross-examine or party of their own witnesses. The adverse statute exception. Fleegar an introduced v Consumers Co, Power 540-541; NW (1933). purpose permit "The of this statute is to calling opposite party as a witness of the or his agent employee privileges with the same though cross-examination and contradiction as opposite such witness had been called party.” Church, Inc, Kovich v Church & 267 Mich (1934). 640, 644; 255 NW 421 party

While the effect of the adverse statute is inconsequential, its deviation from the com- agency mon law of does not have the same force as departure party- would a similar in the context of opponent surprising admissions. Thus is not party the adverse statute was never held to abro- gate predecessor party-op- the common-law to the ponent requirement admission rule—the employee party that a statement an party-opponent admissible as the admission of a only speaking if the could be said to be agent party as an when the statement was example, See, made. Kalamazoo Yellow Cab Co Judge, v Kalamazoo 384; Circuit 363 Mich (1961), long NW2d 821 decided after enactment party 1909 of the adverse statute. departing language

In from the of the federal (b) subparagraph rule to make what is now consis- ap- tent statute, with the adverse it thus pears that rules, drafters of the 1963 court apparent faced conflict between the court statute, rules and a looked at subrule as a applying policy underlying means of the ad- depositions given by verse statute to adverse freeing parties witnesses, thus from the shackles of concerning cross-examining the common-law rule Mich 761 432 the of Court that, in is evidence one’s witness.25There no own provision making change, they the this viewed overcoming the limitations of a vehicle for concerning admissions rule of traditional evidence explanation by party-opponents. Furthermore, harmonizing MCR has attraction of 2.308(A)(1)(b), depositions upon the which focuses party stat- witnesses, of adverse with the adverse bringing ute, without into conflict Rules of Evidence. change rule in court

Our conclusion that traditional limita- was not intended override the party opponent rule is tions admission of the Roby, by 102; 150 v buttressed Ruhala (1967), plaintiff by a of NW2d 146 in which use deposition trial was defendant’s as evidence was contested because defendant plaintiff that her case court. The instant contends supported by that Court admit- is Ruhala because showing ted the without deponent at trial. Un- was unavailable 1963, change explanation purpose This in GCR 302.4 1963, 302.6, pro subsequent by subparagraph, which reinforced vided: GCR Taking Using Depositions. party be Effect or A shall not any purpose by make a his own tak- deemed to ing witness deposition. his The introduction in ofthe or evidence any part any purpose impeaching the thereof for other than that of introducing deponent the deponent party makes the the witness ofthe deposition, apply but this shall not to the use an adverse 302.4(2)[predecessor described sub-rule 2.308(A)(1)(b)]. party may hearing any At of relevant him the trial rebut evidence contained in a whether introduced [Emphasis by any party. supplied.] other Michigan adoption Rules of Evidence With the 1963, 302.6, accordingly abrogated leted from the court the witness unless the witness is an the substance of was de- GCR provides rules in the revision 1985.MRE 607 calling credibility may of a witness attacked opposite agent party or ofthe contrary anticipated party, or witness’ was adverse calling party’s injurious actually to the case. Reddo Opinion op the Couet case, however, like the instant the deponent Ruhala a bona party-opponent, fide so the Ruhala Court was not presented with a hearsay problem. Consequently, the Court analyzed the in problem terms of the of the purposes adverse party statute rather than in terms of indepen- the dent operation the rule. It described the subparagraph issue26 as "paralleling cross-exam- ination of party,” an adverse in contrast the succeeding subparagraph,27 which Court the de- operating scribed as to make deponent the the Id., witness of the him. party calling p Thus, 113. the Court held the could be used as evidence making deponent without the witness Id. plaintiff. of the that Ruhala supports her

Plaintiff’s contention 2.308(A)(1) interpretation of MCR is thus mis- assumes, taken.28 Plaintiff incorrectly, (b) deponents class of to in subparagraph referred is identical class of witnesses described 801(d)(2)(D). MRE It is deponents not. The referred 2.308(A)(1)(b) to MCR may properly be charac- witnesses, terized as adverse but are they not necessarily party-opponents. To be so character- ized, must also they meet the criteria of MRE 801(d)(2)(D). Buder, Chapman v

Plaintiff’s reliance on 14 165 App 13; (1968), Mich 436 NW2d lv den 381 (1969), Farrar, 798 Kuisel App 6 Mich 26 1963, 302.4(2), identical, predecessor GCR immediate of MCR 2.308(A)(1)(b). 27 1963, 302.4(3), identical, predecessor GCR immediate of MCR 2.308(A)(1)(c). Passino, supra, by plaintiff, In n 9 Socha v cited also sought question party-opponent, to be admitted was also that of a so the inapposite conflict was not raised. Socha is Rather than for another reason as well. endorsing preeminence of the court rule in face of Evidence, explicates conflict deposition the Rules Socha the method which Id., pp is to be into evidence at 468- introduced trial. 470. Mich Court of the (1967), lv 379 Mich 770

560; 149 NW2d den (1967), In both of these similarly misplaced. Ruhala, cases, sought to be party-opponent, used was of these cases an adverse witness. None merely the choice presented appellate court with thus 2.308(A)(1) construing MCR today we face between (b) subparagraph so as to confine within admission rule party-opponent bounds of the of that rule. the limitations expanding beyond subpara- summary, history In a review (b) the 1963 revision graph reveals misfit gave rise to the between 801(d)(2)(D) 2.308(A)(1)(b) did not stem from limitations from a decision deviate Evidence, admission Rule of but party-opponent the rule from a desire to coordinate court rather The authority statute.29 with the adverse that statute to cross-examine wit- by conferred in of common-law restrictions ness contravention to the objections held to overcome has never been hearsay on the rule. testimony witness’ based imply do that the 1963 amendment to the court rule We not mean to construed, intended, be to resolve the of of was primacy or otherwise should issue this court rule the in the case of conflict between and Rules Court, history of rule of the the shows that this Evidence. Our review contrast to the federal explicitly judiciary, has never declared how such adopted, court rules When first were conflicts should Rules Evidence were resolved. codified, provisions rules of not and the of the court pose any it common-law rules of Thus did not cannot be said that the conflict with the evidence. purpose of the rule to define admissibil court was to, testimony from, superior ity apart rules of evi of and Further, noted, the Rules of were codified dence. when Evidence provided 1978, they "[hjearsay except provided is not that admissible assuming, arguendo, that there existed these rules.” MRE 802. Even provided prior to that rule inference the court avenue reasonable admissibility depositions of in contravention of limitations of of rules an inference. evidence, easily "repeal” as a of of MRE 802 can be construed such phrase That is reinforced the deletion of construction testifying” of were then from 1985 version "if the witness 2.308(B). ante, pp See 770-771. Reddo Opinion of the Court V hearsay expression The rule is a concrete preference common-law for in-court oral subject to cross-examination. Our Rules of Evi- preserve preference. Indeed, dence this Court preference expressed emphatically has more judiciary by rejecting than the federal the federal approach which allows some does exceptions admissible, fall within defined to be judge, discretion of trial two under "catch- 803(24) exceptions hearsay rule, all” FRE 804(b)(5). (6). See MRE note importance preferring presenta- The in-court testimony subject tion live to cross-examination can be illustrated in the circumstances instant began working case. Ms. Dudash for the defendant According in mony, June 1979. to her testi- frequently patronized Mr. Grandstaff working bar while she was there. Ms. Dudash’s ability to tie her account of Mr. GrandstafFs drink- ing particular evening to the accident testimony. critical to the relevance of her June, was taken in 1983. Even though years this was more three Mr. than after relatively early death, Shields’ was the discov- ery phase of the case. The trial was still over two years away. taken, When her Ms. Dudash testified one the reasons re- she "big, called the date of the events was because a big freaky night ice storm” had occurred be- understandably fore. Defendant’s counsel prepared un- point at confront her with reports which, he weather later obtained he claims, show that storm to she ice actually previous year. referred had occurred the Clearly, the effectiveness of cross-examination attorney which an is able to at the infor- conduct 432 Mich Opinion of the Court equated stage mation-gathering a cannot be of case potential informed effectiveness of more with the cross-examination presence of

at trial in the a truth-finding jury. Furthermore, value of live greater testimony by have Ms. Dudash would been just reading deposition, her of her than mere a likely would have been at trial cross-examination impeachment enlightening than mere more reading reports. deposition by a of weather concerning course, the reach Of conclusion we independent admissibility not a does render such had at trial. If Ms. Dudash valueless trial, would have been testified at her memory necessary un- to refresh her available 803(5), pur- impeachment 612 or or for der MRE poses by MRE 613 and MCR as authorized 2.308(A)(1)(a).

vi lightly adopt position Court not a This does rules, our rules the federal after which odds with patterned. policy analysis Our consider- are party-opponent rule, admission ations behind (b), 801(d)(2), subparagraph us to leads adopt Court not this should conclude turn construction which would strained 2.308(A)(1)(b) exception independent into hearsay rule.

Despite inconsistency rules the federal point, noteworthy it is that our on technical ruling harmony not does a substantive disturb Michigan rules of civil and federal between procedure This is illustrated and evidence. deposition would have met fact that Ms. Dudash’s evidentiary court at the fate federal same holding rules as under our hands of the federal today, qualify as one Ms. Dudash does because Reddo Opinion op the Court 32(a)(2). deponents described FR Civ P only Not does the federal rule fail to include employees Dudash, former such as Ms. it excludes employees general, limiting scope its deponent speak to a who is authorized to at the public time of the on behalf of a private corporation, partnership or association or governmental agency officer, director, as "an managing agent, person designated or a ... to Appendix testify Thus, . . . .” See unlike MCR a. 2.308(A)(1)(b), 32(a)(2), rule, the federal FR PCiv is party-opponent not in with the conflict admission rule of evidence.30

VII adopt forth, For the reasons set we decline to 2.308(A)(1)(b)urged upon the construction of MCR us plaintiff, negate significant which would protection against provided MRE under 801(d)(2)(D).31 Rather, we hold that employed by aof who was party at the time of the occurrence out of which longer employed arose, an action but who was no taken, when the is not finding admissible evidence without a deponent testify is unavailable to at trial. judgment Appeals of the Court of is af-

firmed.

VIII persuaded Our deliberations in this case have us 801(d)(2)(D) party-opponent provision, The federal FRE admission is Michigan’s party-opponent provision, to identical 801(d)(2)(D). admission plaintiff attempt Since made no show Ms. Dudash was "un 2.308(A)(1)(c) available” under either MCR or MRE we do question supremacy reach in the event of a conflict between provisions. these two Mich 761 Opinion op the Court deposi- use of evidentiary governing rules in the Rules of ought be consolidated

tions with a That conclusion consistent Evidence. 2.308(A) pub- that was to amend MCR proposal 27, 1987. 428 Mich 1219. July lished for comment to the proposal was eliminate The intent of the MCR of conflict between overlap 2.308(A) possibility and of We take this and the Rules Evidence. amendment, adopt proposed opportunity published. addition, response received the comments

In us that persuaded have proposal to the published incorporate should some of of Evidence the Rules 2.308(A). in MCR has found what until now been adopt an amendment of today we also Accordingly, 804(b).32 in Ap- rules appear texts of the amended The will take c. These amendments pendices and b 1, 1989. effect December Brickley, Cavanagh, C.J., and Riley, Griffin, Boyle, JJ., J. concurred appendix A 32(a) 2.308(A)(1) FR Civ P Depositions. (A) (a) (1) At of At General. Use In upon hearing trial, hearing or on a mo- the trial or the tion, an preliminary pro- of a motion or interlocu- aor tory proceeding, any part part or ceeding, or of a all deposition, of so far as all a deposition so far as admis- a under the rules of admissible of under the rules evid- sible though applied as evidence ence witness were then present and present then witness testifying, against may against be used may be used present party or a who party any who was or taking represented taking represented at the at deposition or had deposition had who or 804(b) published has not been for comment. of MRE The amendment step because we believe best omitted that in this instance We have simultaneously opinion. our adopt with the release of amendments both v Reddo op the Court it, reasonable notice of thereof, reasonable notice any accordance with accordance with of following provisions: following provisions: (b) (2) The or of party or of anyone who at the anyone at who time time of transaction or occurrence out of which action arose or taking time of taking the officer, director, was employee, officer, director, was an managing agent or agent, or or a designated under 30(b)(6) 31(a) Rule or on behalf public private corporation, partnership association governmental agency a party is

may by may used an by be used an party adverse for party adverse any purpose. any purpose.

(Emphasis supplied.) B

APPENDIX REVISED MCR 2.308 OF USE DEPOSITIONS IN COURT PROCEEDINGS (A) In General.

Depositions parts or shall thereof be admissible at trial or on hearing of a motion or in an interlocu- tory proceeding as only provided in the Michigan Rules of Evidence. -

(B) (C)[Unchanged.] 432 Mich op the Court C

APPENDIX REVISED EXCEPTIONS; DECLARANT UNAVAILABLE HEARSAY (a) [Unchanged.]

(b) Hearsay Exceptions. following not excluded are

The as a witness: is unavailable if the declarant rule (1) Testimony. Former given

Testimony another hear- a witness at proceeding, ing if the a or different same testimony against is now of- whom pre- proceeding, or, a fered, a in civil action opportunity and interest, an in had decessor similar rect, develop testimony di- motive cross, or redirect examination. - (4)

(2) [Unchanged.] (5) Testimony. Deposition given

Testimony in a a witness compliance in course with law the taken proceeding, if the or another the same against testimony offered, or, is now whom predecessor proceeding, a ain civil action opportunity interest, and similar had develop direct, motive to cross, or redirect examination. only, purposes "unavail-

For ability ofthis subsection of witness” also includes situations which:

(A) greater distance witness is at place of trial or 100 miles from the

than hearing, States, United out of the appears the absence unless it procured by the witness was deposition; offering the (B) exceptional notice, such On motion circumstances make it desir-

exist as to v Reddo Separate Opinion by Levin, J. able, in the of justice, interests and with regard importance pre- due to the senting the or- witnesses court, ally open deposi- to allow the tion to used. (separate opinion). transcript J. of Pa- Levin,

tricia deposition testimony Dudash’s is indeed hear- in that it say reflects out-of-court statements made her offered plaintiff prove evidence truth of the matter so move asserted her.1 Once we on from that first level of her tes- hearsay, timony, transcript, relating reflected in that what observed, she is not If she had con- hearsay. testified her, cerning might what someone else have told would have Du- hearsay. been second-level Because dash’s deposition testimony only concerned what she observed, first-level, the instant case concerns only second-level, hearsay. 2.308(A)

Plaintiff’s read Rule lawyer properly for Patricia providing hearsay exception first-level Dudash’s deposition testimony regard without whether she was at the trial. That available rule provides party may that a use at the trial "for . . any. purpose” "deposition so far as admissible under the rules of evidence” of who was employee of another "at the time of the trans- of which the arose.” action occurrence out action change I in the of Rule meaning would make the 2.308(A) and the amendments of the court rules and adopted by the Rules of Evidence the Court today for a new trial under fully prospective and remand the new rule.

i mainly concerning hearsay The Rules of Evidence question. There are address the second-level 801(c). 761 432 Mich 790 Separate Opinion Levin, J. the use concerning hearsay, first-level provisions

also exceptions, hearsay The first-level depositions. Evidence, testi- deposition state that the the Rules of admissible ordinarily witness is mony expert of an at the is available to though even the witness wit- trial,2 and that is unavail- if the witness ness is admissible ordinarily has died able,3 including where witness defined as propo- infirm or the ill or mentally or is physically atten- procure the witness’ nent has been unable dance.4 2.308(A) re- rules overlapping

Court Rule states (the deposition testi- hearsay use of garding first-level instances in effect that certain mony), providing regard without is admissible is available. whether witness clause, 2.308(A), as admissible in Rule "so far evidence,” evidentiary concerns under the rules of ques- hearsay second-level questions, example, tions, question. To hearsay other than the first-level 2.308(A) it is to read into obliv- read Rule otherwise the rules of far as admissible under ion. To read "so it is admissi- barring unless evidence” as it as saying Rules of Evidence is to read ble under the under of a witness be used may that a 2.308(A) under another may if it also be used only 2.308(A) Evidence; read, so Rule rule—the Rules superfluous. who is deposition testimony

If the under the terms of Rule admissible expert, it not admissible because 2.308(A), is nevertheless (ñrst-level unless hearsay constitutes hearsay), hear- reason of the hearsay by ceases to be first-level in the Rules of Evi- exception or an say definition MRE MRE 803(18). 804(b). 804(a)(4), (5). Shields v Reddo Separate Opinion by Levin, J. 2.308(A) might dence, then Rule as well be a blank page.

If "so far as admissible under the rules of evidence” majority today deposi means, holds, as the that the tion of an at the "who time of the transac tion or occurrence out of which the action arose” is not admissible unless either not or within a hearsay exception Evidence, under the Rules of then

—deposition person of a who was an "of- employee, agent ficer, director, or of a party” taking deposi- "at the time of the depo- tion”6 is not admissible unless the sition concerns "a matter within the scope agency employment”; of his or and7 deposition testimony

—the of a witness greater who resides at a distance than fifty place miles from the of the trial8 is not admissible unless either admissible hearsay exceptions under the first-level in the Rules of Evidence for unavailable witnesses, which do not include dis- place tance from the of trial within the unavailability, definition of or some hearsay exception other or exclusion perchance from the definition applies.9

ii today amending The Court is the court and rules rectify implica- Rules Evidence to the manifest today’s regarding fifty-mile tions of decision rule ^[5] 6 MCR2.308(A)(1)(b). MCR 2.308(A)(1)(b).

[7] See text 2.308(A)(l)(c)(iii). 801(d)(2)(D). accompanying n 4. Separate Levin, J. of a admissibility

and the officer, director, agent or of a who was an either or taking time of at of the or occurrence.10 the time transaction rule-changing deci- today’s The Court make should rules and Rules sion and amendment court so as not to defeat fully prospective Evidence understand- expectations the bench bar who 2.308(A) overlapping, took Rule at face value: as ably with, of Evidence—as but inconsistent Rules generally regarding more first-level providing Rules hearsay problem than the of Evidence. 2.308(A)

Lawyers properly read Rule judges hearsay exception de- providing first-level "[t]he time of position anyone of a or who at the transaction or out of which action occurrence taking or at the time of was an arose officer, director, agent with- employee, party”11 regard to available and out whether witness was thus need to show that the witness was without any dead, infirm, ill or his atten- physically mentally or, of could not in the case an procured, dance servant, deposition or a agent concerned employment. within of his or scope agency matter hi provisions of the specific The wisdom of some 2.308(A) Rule indeed be The Court may debatable. it. change a The adopted majority rule and can Court, 2.308(A), having responsible Rule adopted respect, in meaning. With any resulting obscurity for any I there is The Court obscurity. do believe today’s rule-changing make deci- should fairness fully prospective. sion

I a new trial under the new rule. would remand for accompanying n 7. See text 2.308(A)(1)(b). MCR Reddo Dissenting Opinion Aechee, J. (dissenting). granted J. This Court leave Archer, appeal conflicting prerequisites to reconcile the 2.308(A)(1) Michigan MCR and the Rules Evidence I regarding deposition of a at trial. admissibility in excluding would hold that the trial court erred deposition pursu because it was admissible properly 2.308(A)(1)(b). However, ant to MCR the contents of to considera deposition subject should have been tion under provided rules as within MCR 2.308(A). I Accordingly, would reverse the decisions Appeals.

of the trial court and the Court of FACTUAL AND PROCEDURAL BACKGROUND I concur with Justice Griffin’s recitation of the facts in this case.

i The question requires before us us to exam- today ine Court interplay Michigan between the Rules concerning the Rules of Evidence the use and grounds for Plaintiff depositions. argues admission of applied court rule at issue here be a fash- ion similar to that Federal Rule of Civil Procedure 2.308(A)(1)provides: (A)In General. (1) trial, motion, pro- hearing preliminary At the or the on a or a ceeding, part or all of a so far as under the admissible may against party rules represented evidence be used who was taking at the or had reasonable no- it, any followingprovisions: tice of in accordance with ofthe (b) anyone of a who at the time of the at the the action transaction or occurrence out of which time of arose or officer,director, employee, taking purpose. agent party may be used an adverse 432 Archer, J. Dissenting 32(a).2 pro of the federal However, examination upon develop vision, distinguishable from it is readily 2.308(A)(1). the federal regard With of MCR ment indepen an rule, that it serves as question there is no deposition. It is well for the admission of a dent basis Rule 32 with deposition’s compliance a settled that objection potential hearsay cures prerequisites See, e.g., 802. Rule of Evidence to Federal pursuant (1981).3 v IBM, 90 FRD 377 United States 2.308(A)(1) Further, language con- MCR lacks rule, i.e., "though of the cerning application that is present testifying,” were then witness However, the his- counterpart. its federal present as thor- language, the absence of this torical basis for incon- majority, remains documented oughly rule is to be the issue whether court upon clusive of Federal comparable to the use applied a fashion 32. Rule concerning the history

In of a nondefinitive light language present day from the absence of this a 2.308, deposi- the admission of at issue is whether to un- court rule serves tion instant pursuant evidentiary rules preeminence dermine 2 (a) hearing upon Depositions. of a mo At the trial or Use of deposition, proceeding, any part interlocutory a or all of tion or an though applied as under the rules of evidence so far as admissible against testifying, may present used were then witness taking represented any party at the de who was or thereof, position notice accordance or who had reasonable following provisions: any of the (2) anyone tak- who at the time of or of director, officer, managing agent, a ing or or 30(b)(6) 31(a) designated on behalf of Rule under gov- partnership private corporation, public or association party may agency an adverse be used which is ernmental any purpose. party for Congress listing rules and acts of of additional federal For a admissibility deposi concerning exceptions to FRE 802 serve as Evidence, pp affidavits, Berger, 802-1 to & see 4 Weinstein tions and other 802-2. Shields v Reddo by Dissenting Opinion Archer, J. concerning the use of evidentiary material at trial. I observe that in light of the court rule’s development, the position advocated the by plaintiff best harmo- nizes the rules procedure and MRE 802’s mandate that evidence which constitutes shall hearsay be found to pursuant be admissible to only the eviden- tiary rules. 2.308(A)(1)(b)

I construe MCR to call for a two-fold consideration a trial court. by Initially, the trial court to may look the court rules to determine whether the document, i.e., as a irrespective of its con- tents, may potentially depo- admissible where the nent was an at the time of the transaction However, or occurrence giving litigation. rise to the once this admissible, document is determined to be the court rule then provides that the extent of this admissibility is limited the Rules of Evidence. It is at this point that the trial court must consider substantive content of the deposition and determine upon the basis which a party seeks to introduce the deponent’s statements at trial. I find that this con- struction strikes acceptable balance between the 2.308(A)(1), rules and MCR and does not serve to make the court rule an de to exception facto evidentiary provisions as substance of the de- position subject remains to of MRE 801- scrutiny 804. case,

In the majority correctly instant observes plaintiffs that due to the failure to Ms. Du- establish trial, dash’s unavailability at as a whole would not to MRE pursuant be admissible 804(a)(l)-(5).4 The court lower record fails reveal

4 (a) Unavailability. "Unavailability Definition of as a witness” includes situations in which the declarant— (1) exempted by ruling ground privilege is testifying concerning of the court on the statement; subject from matter of his or (2)persists refusing testify concerning subject matter of despite so; his statement an order of the court to do (3) statement; memory subject has a lack of of the matter of his 432 Mich 761 [July- Dissenting Opinion Archer, J. rec to establish a factual attempt plaintiff trial. of Ms. Dudash’s absence at

ord as to the basis Further, the entire text of Ms. Dudash’s statements nonhearsay pursuant would be admissible as 801(d)(2)(D) fact that she not an given time which agent servant defendant was taken. Nonetheless, irrespective of the tactics evidentiary that, here, proce- I pursued maintain as matter dure, the trial appropriate have been would all mate- court to examine and redact hearsay. rial found to constitute

CONCLUSION Therefore, I would hold that while pursuant this case should have admitted been 2.308(A)(1), its substance should been sub- have scrutiny to the of the rules. Accord- jected portions of the ingly, only should have been admitted are either those which es- nonhearsay plaintiff constituted or which (4) hearing is to be or to at the because of unable existing physical infirmity; death or or mental illness or or then (5) hearing proponent is from the ofhis absent statement (or procure been exception his in the of a hear- has say testimony) by case, unable attendance case (3), (4), (b)(2), or his or under subdivision attendance means, process or other reasonable and in a criminal diligence due shown. is exemption, if his re- A declarant is not unavailable as a witness fusal, memory, inability, lack of or absence is due to claim of procurement wrongdoing proponent of his for or statement attending purpose testifying. preventing the from witness 5 (d) hearsay. are A is not hear Statements which statement say if— (D) (2). against party . . . and is . . The statement offered concerning agent a matter within statement scope his servant employment, during agency made the existence of his relationship .... Reddo Dissenting Opinion by Archer, J. compliance exception tablished with an to the hear- say Therefore, rules. I would reverse the decisions of Appeals the Court of and the trial court and remand opin- case a new trial in accordance with ion.

Case Details

Case Name: Shields v. Reddo

Court Name: Michigan Supreme Court

Date Published: Jul 24, 1989

Citation: 443 N.W.2d 145

Docket Number: 81575, (Calendar No. 6)

Court Abbreviation: Mich.