BILL NUMBER: AB 223	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Frommer

                        FEBRUARY 13, 2001

   An act to amend Sections 2026 and 2033.5 of the Code of Civil
Procedure, and to amend Section 915 of the Evidence Code, relating to
civil procedure.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 223, as introduced, Frommer.  Evidence: depositions:  forms:
discovery.
   Existing law provides that a party may obtain discovery by taking
an oral deposition in another state of the United States, or in a
territory or an insular possession subject to its jurisdiction.  The
deposition must be conducted under the supervision of a person
authorized to administer oaths by the laws of the United States or
before a person appointed by the court.
   This bill would authorize the clerk of the court to issue a
commission authorizing the deposition in another state or place.  The
commission would be issued to any party in any action pending in its
venue without a noticed motion or court order.   The commission
would contain such terms as are required by the foreign jurisdiction
to initiate the process.  If a court order is required by the foreign
jurisdiction, an order for a commission would be authorized to be
obtained by an ex parte application.
   Existing law requires the Judicial Council to develop and approve
official form interrogatories and requests for admission of the
genuineness of any relevant documents or of the truth of any relevant
matters of fact in any civil action in a state court based on
personal injury, property damage, wrongful death, unlawful detainer,
breach of contract, family law, or fraud.
   This bill would instead authorize the Judicial Council to develop
and approve official form interrogatories and requests for admission
for use in any civil action in a state court.
   Existing law generally provides that attorney work product is not
discoverable unless the court determines the denial of discovery will
unfairly prejudice the party seeking discovery, as specified.
However, existing law also provides that any writing reflecting an
attorney's impressions, conclusions, opinions, or legal research or
theories is not discoverable under any circumstances.  Existing law
relating to the assertion of privilege provides that the presiding
officer may not require disclosure of information claimed to be
privileged in order to rule on the claim.  However, if a court is
unable to rule on the validity of the assertion of certain specified
privileges without requiring disclosure, the court may require the
disclosure of the information in chambers out of the presence and
hearing of all persons except the person authorized to claim the
protection and such other persons as the person authorized to claim
the protection is willing to have present.
   This bill would specify that a presiding officer may not require
disclosure of attorney work product coming within the absolute
prohibition in order to rule on a claim of privilege and would
provide that other attorney work product may be disclosed pursuant to
the above procedure in order to rule on such a claim.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 2026 of the Code of Civil Procedure is amended
to read:
   2026.  (a) Any party may obtain discovery by taking an oral
deposition, as described in subdivision (a) of Section 2025, in
another state of the United States, or in a territory or an insular
possession subject to its jurisdiction.  Except as modified in this
section, the procedures for taking oral depositions in California set
forth in Section 2025 apply to an oral deposition taken in another
state of the United States, or in a territory or an insular
possession subject to its jurisdiction.
   (b) (1) If a deponent is a party to the action or an officer,
director, managing agent, or employee of a party, the service of the
deposition notice is effective to compel that deponent to attend and
to testify, as well as to produce any document or tangible thing for
inspection and copying.  The deposition notice shall specify a place
in the state, territory, or insular possession of the United States
that is within 75 miles of the residence or a business office of a
deponent.
   (2) If the deponent is not a party to the action or an officer,
director, managing agent, or employee of a party, a party serving a
deposition notice under this section shall use any process and
procedures required and available under the laws of the state,
territory, or insular possession where the deposition is to be taken
to compel the deponent to attend and to testify, as well as to
produce any document or tangible thing for inspection, copying, and
any related activity.
   (c) A deposition taken under this section shall be conducted (1)
under the supervision of a person who is authorized to administer
oaths by the laws of the United States or those of the place where
the examination is to be held, and who is not otherwise disqualified
under subdivision (k) and subparagraph (B) of paragraph (2) of
subdivision (l) of Section 2025, or (2) before a person appointed by
the court.  This appointment is effective to authorize that person to
administer oaths and to take testimony.  When necessary or
convenient   On request  , the  clerk of the
 court shall issue a commission  on such terms and with
such directions as are just and appropriate  
authorizing the deposition in another state or place.  The commission
shall request that process issue in the place where the examination
is to be held, requiring attendance and enforcing the obligations of
the deponents to produce documents and answer questions.  The
commission shall be issued by the clerk to any party in any action
pending in its venue without a noticed motion or court order.  The
commission may contain such terms as are required by the foreign
jurisdiction to initiate the process.  If a court order is required
by the foreign jurisdiction, an order for a commission may be
obtained by ex parte application  .
  SEC. 2.  Section 2033.5 of the Code of Civil Procedure is amended
to read:
   2033.5.  (a) The Judicial Council  shall  may
 develop and approve official form interrogatories and requests
for admission of the genuineness of any relevant documents or of the
truth of any relevant matters of fact  for use  in any
civil action in a state court  based on personal injury,
property damage, wrongful death, unlawful detainer, breach of
contract, family law, or fraud  .  Use of the approved form
interrogatories and requests for admission shall be optional.
   (b) In developing the form interrogatories and requests for
admission required by this section, the Judicial Council shall
consult with a representative advisory committee which shall include,
but not be limited to, representatives of the plaintiff's bar, the
defense bar, the public interest bar, court administrators, and the
public.  The form interrogatories and requests for admission shall be
drafted in nontechnical language and shall be made available through
the office of the clerk of the appropriate trial court.
   (c) The Judicial Council also shall promulgate any necessary rules
to govern the use of the form interrogatories and requests for
admission.
   (d) The Judicial Council shall develop and approve official form
interrogatories for use by a victim who has not received complete
payment of a restitution order made pursuant to Section 1202.4 of the
Penal Code.
   (e) Notwithstanding whether a victim initiates or maintains an
action to satisfy the unpaid restitution order, a victim may propound
the form interrogatories approved pursuant to this section once each
calendar year.  The defendant subject to the restitution order
shall, in responding to the interrogatories propounded, provide
current information regarding the nature, extent, and location of any
assets, income, and liabilities in which the defendant claims a
present or future interest.
   (f) This section shall become operative on January 1, 2000.
  SEC. 3.  Section 915 of the Evidence Code is amended to read:
   915.  (a) Subject to subdivision (b), the presiding officer may
not require disclosure of information claimed to be privileged under
this division  or attorney work product under subdivision (c) of
Section 2018 of the Code of Civil Procedure in order to rule on
the claim of privilege; provided, however, that in any hearing
conducted pursuant to subdivision (c) of Section 1524 of the Penal
Code in which a claim of privilege is made and the court determines
that there is no other feasible means to rule on the validity of such
claim other than to require disclosure, the court shall proceed in
accordance with subdivision (b).
   (b) When a court is ruling on a claim of privilege under Article 9
(commencing with Section 1040) of Chapter 4 (official information
and identity of informer) or under Section 1060 (trade secret) 
or under subdivision (b) of Section 2018 of the Code of Civil
Procedure (attorney work product)  and is unable to do so
without requiring disclosure of the information claimed to be
privileged, the court may require the person from whom disclosure is
sought or the person authorized to claim the privilege, or both, to
disclose the information in chambers out of the presence and hearing
of all persons except the person authorized to claim the privilege
and such other persons as the person authorized to claim the
privilege is willing to have present.  If the judge determines that
the information is privileged, neither he nor any other person may
ever disclose, without the consent of a person authorized to permit
disclosure, what was disclosed in the course of the proceedings in
chambers.