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  








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            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  








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            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  








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               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.








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          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
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           Support 
           
          Judicial Council (sponsor)
          Civil Justice Association of California 

           Opposition 
           
          None on file
           
          Analysis Prepared by  :    Saskia Kim / JUD. / (916) 319-2334