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