BILL ANALYSIS
AB 223
Page 1
Date of Hearing: April 3, 2001
ASSEMBLY COMMITTEE ON JUDICIARY
Darrell Steinberg, Chair
AB 223 (Frommer) - As Amended: March 27, 2001
As Proposed to Be Amended
SUBJECT : DISCOVERY; TRIAL COURT FUNDING CLEAN-UP
KEY ISSUES :
1)Should the procedure of issuing a commission which authorizes
the taking of a deposition outside of California be made
uniform throughout the state?
2)SHOULD THE PROCEDURES A COURT FOLLOWS TO DETERMINE WHETHER
MATERIAL IS PRIVILEGED UNDER THE ATTORNEY WORK PRODUCT
DOCTRINE BE MADE CONSISTENT THROUGHOUT THE STATE IN ORDER TO
ENSURE UNIFORMITY?
3)Should various changes be made to the law concerning trial
court funding, including repealing obsolete provisions and
making other clean-up changes?
SYNOPSIS
This Bill Seeks To Make Discovery Practice And Procedure
Consistent Throughout The State By Making Uniform The Procedures
A Court Must Follow When A Commission Which Authorizes The
Taking Of A Deposition Outside Of California Is Issued And When
A Court Considers Whether Material Is Privileged Under The
Attorney Work Product Privilege. This Bill Also Seeks To
Provide The Judicial Council Greater Flexibility In Developing
Official Forms In Other Areas Of The Law And Makes Various
Changes To The Law Regarding Trial Court Funding Including
Repealing Obsolete Provisions.
SUMMARY : Seeks to make discovery practice and procedure more
uniform throughout the State and make "clean-up" changes to
trial court funding. Specifically, this bill :
1)Provides that, upon request, the clerk of the court shall
issue the commission which authorizes the taking of a
deposition outside of California and requires that the
AB 223
Page 2
commission contain specified information.
2)Deletes the existing requirement that the Judicial Council
develop official form interrogatories and requests for
admissions in specified actions and instead provides that the
Judicial Council may develop such forms in any civil action.
3)Adds the absolute work product privilege to the list of
privileges under which a court may not require disclosure of
the information claimed to be privileged in order to rule on a
claim of privilege.
4)Provides that existing procedures that must be followed when a
court is ruling on a claim that information is privileged
under the privilege for official information and the privilege
to protect trade secrets should also be followed for claims
made under the qualified work product privilege.
5)Makes changes to the law regarding trial court funding,
including:
(a) Repeals obsolete provisions including the requirement
that trial courts send a copy of their proposed budgets to
the county board of supervisors;
(b) Provides authority for the Administrative Office of the
Courts to offer services to the courts, and, if the
Judicial Council directs, to require the courts to use
these services; and
(c) Empowers the Judicial Council to restrict or prohibit
programmatic transfer of money by trial courts.
EXISTING LAW :
1)Provides that a court shall issue a commission that authorizes
the taking of a deposition outside of California when
necessary or convenient. (Code of Civil Procedure section
2026. All further statutory references are to this code
unless otherwise noted.)
2)Requires the Judicial Council to develop official form
interrogatories and requests for admissions for use in civil
actions based on personal injury, property damage, wrongful
death, unlawful detainer, breach of contract, family law, or
AB 223
Page 3
fraud. (Section 2033.5.)
3)Provides that, in order to rule on a claim of privilege, a
court may not require disclosure of information claimed to be
privileged under the evidentiary rules of privilege (e.g.
attorney-client, physician-patient, spousal testimonial
privileges). (Evidence Code section 915.)
4)Provides that a court must follow specified procedures when
ruling on a claim that material is privileged under the
privilege for official information and the privilege to
protect trade secrets and the court is unable to rule without
requiring disclosure of the information claimed to be
privileged. (Evidence Code section 915.)
5)Provides for a "qualified" work product privilege, subject to
the "absolute" work product privilege noted below, stating
that the work product of an attorney is not discoverable
unless the court determines that denial of discovery will
unfairly prejudice the party seeking discovery in preparing
that party's claim or defense or will result in an injustice.
(Section 2018.)
6)Provides for an "absolute" work product privilege under which
any writing that reflects an attorney's impressions,
conclusions, opinions, or legal research or theories shall not
be discoverable under any circumstances. (Section 2018.)
7)Provides for consolidated funding of trial courts at the state
level. (Government Code section 77001 et seq .)
FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : According to the author, this bill, sponsored by the
Judicial Council, is necessary to make discovery practice and
procedure more uniform throughout the State. In support of the
provisions concerning out-of-state depositions, the author
states:
AB 223 amends Code of Civil Procedure section 2026 to
clarify that the clerk of the court may issue the
commission that authorizes the taking of a deposition
outside California. Existing law provides that the court
shall issue the commission when necessary. Courts have
AB 223
Page 4
interpreted the term "the court" in various ways, which has
resulted in different practice and procedures in different
counties. In some counties, the judge signs the commission
after a noticed motion has been filed by one of the
parties. In other counties, the court requires only an ex
parte motion and no hearing is held. In other courts, the
clerk signs the commission on the request of either party.
The issuance of the commission for a deposition outside the
state is essentially a ministerial act and all courts
should have the clerk issue the commission.
Similarly, the author believes that rules concerning attorney
work product can also be made more uniform throughout the State,
noting:
AB 223 specifies that the court shall use the same
procedures to determine claims that materials are not
discoverable because they are attorney work product as are
used to determine all claims of privilege as set forth in
Evidence Code section 915. Code of Civil Procedure section
2018 does not provide for procedures for resolving disputes
concerning claims of attorney work product. This has led
to a lack of uniform procedures for resolving these
disputes. AB 223 would set forth uniform procedures for
the courts to follow in determining whether the attorney
work product doctrine shields materials from discovery.
The sponsor notes that the intent of this provision is to ensure
that consistent procedures are followed throughout the State
when determining whether or not information is privileged under
the attorney work product doctrine. Thus, the provision is
intended to be wholly procedural, rather than making substantive
changes (e.g., applying the crime/fraud exception to the
attorney work product privilege).
Trial Court Funding Background : In 1997, the Legislature
enacted AB 233 (Escutia/Pringle, Ch. 850, Stats. of 1997), the
Lockyer-Isenberg Trial Court Funding Act of 1997, which created
a stable, long-term funding base for the state's trial courts by
requiring the state to assume the full responsibility for
funding the courts. In transferring primary responsibility for
funding the courts from the counties to the state, the
Legislature recognized that such funding is necessary to provide
stable and adequate funding, uniform standards and procedures,
economies of scale, and structural efficiency.
AB 223
Page 5
This bill seeks to repeal provisions made obsolete by the
changes to trial court funding. For example, the sponsor notes
that "the provision regarding sending a copy of the budget
request to the board of supervisors [should be repealed] because
the county no longer has financial responsibility for the
court."
The bill also provides authority to the Administrative Office of
the Courts to provide services to the courts. According to the
sponsor, this change is needed because there "is no explicit
authority under current law for the Administrative Office of the
Courts to provide services to trial courts on either a mandatory
or optional basis." Similarly, the sponsor notes that there is
no explicit authority for the Judicial Council to restrict or
prohibit the transfer of money by a trial court from one program
to another. This bill would provide the Judicial Council with
such authority.
Author's Amendment. This bill deletes the current requirement
that the Judicial Council develop official form interrogatories
and requests for admissions in specified actions and instead
provides that the Judicial Council may develop such forms in any
civil action. The stated intent is to "allow the Judicial
Council greater flexibility in developing these optional forms
in other areas of the law." However, this objective may be
achieved by retaining the existing requirement and simply adding
language allowing the Judicial Council to develop forms in other
areas of the law. In accordance with this view, the author has
agreed to amend the bill to read as follows:
On page 3, line 39:
2033.5. (a) The Judicial Council shall 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 and
for any other civil actions the Judicial Council deems
appropriate. Use of the approved form interrogatories and
requests for admission shall be optional.
REGISTERED SUPPORT / OPPOSITION :
AB 223
Page 6
Support
Judicial Council (sponsor)
Civil Justice Association of California
Opposition
None on file
Analysis Prepared by : Saskia Kim / JUD. / (916) 319-2334