BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
AB 223 A
Assembly Member Frommer B
As Amended June 20, 2001
Hearing Date: July 3, 2001 2
Government Code 2
CJW:sr 3
SUBJECT
Evidence: Depositions, Forms, and Discovery
DESCRIPTION
This bill, sponsored by the Judicial Council, would make
numerous "clean-up" changes to statutes relating to trial
court funding, and would amend various discovery-related
statutes to make discovery practice and procedure more
uniform throughout the state.
(This analysis reflects author's amendment to be offered in
Committee.)
BACKGROUND
In 1997, the Legislature enacted AB 223 (Escutia/Pringle,
Stats. of 1997, Ch. 850) the Trial Court Funding Act of
1997, which requires the state to assume full
responsibility for funding the courts. This bill seeks to
clarify the Act as it relates to standards and procedures,
and to repeal provisions made obsolete by the shift of
funding responsibility to the state.
In addition, the bill would amend statutes relating to
depositions, interrogatories, electronic discovery, limited
civil actions, and attorney work product disputes, to
update, improve, and provide uniformity to the discovery
process.
CHANGES TO EXISTING LAW
(more)
AB 223 (Frommer)
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1. Existing law differentiates between limited civil
cases and other civil cases in procedures relating to
statements of damages in personal injury and wrongful
death cases; the amounts of filing fees and undertakings
for writs of attachment and by judgment creditors; and
the entry of writs of execution on money judgments. [CCP
Secs. 425.10, 425.11, 489.220, 685.030, 720.160,
720.260.]
This bill would eliminate the distinctions between
limited and other civil actions in these matters by
extending certain procedures and amounts of certain
undertakings applicable to most civil cases to limited
civil cases as well. This bill also would raise the
current amounts for these undertakings from $7,500 to
$10,000.
2. Existing law contains various provisions computing the
time to respond to service of various documents based on
whether service is made personally or by mail, in which
case the time to respond generally is extended by five
days, or ten days if the place of mailing is outside
California. [CCP Secs. 877.6, 1005, 1013.]
This bill would amend various sections to achieve
internal consistency in the application of these response
deadlines.
3. Existing law provides that "the court" shall issue
commissions for the taking of out-of-state depositions.
[CCP Sec. 2026.]
This bill would provide that this essentially clerical
function may be performed by the court clerk.
4. Existing law requires the Judicial Council to develop
form interrogatories for specified civil actions, and to
formulate and adopt forms and rules of court for
litigants proceeding in forma pauperis. [CCP Sec.
2033.5; Govt. Code Sec. 68511.3.]
This bill would clarify the Judicial Council's authority
to develop form interrogatories for other civil actions,
and would make a minor change in the information required
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on the form for proceeding in forma pauperis.
5. Existing law protects an attorney's work product from
disclosure in the discovery process unless the court
determines that denial of discovery will unfairly
prejudice the party seeking discovery. Existing law does
not, however, set forth procedures for hearing disputes
concerning the disclosure of attorney work product. [CCP
Sec. 2018.]
This bill would amend Section 915 of the Evidence Code to
add claims of attorney work product privilege to the list
of other claims of privilege for which disclosure
disputes are determined under that section.
6. Existing law provides that any party to a civil action
may take discovery, including deposition testimony, and
provides procedures for the taking of depositions. [CCP
Sec. 2025.]
This bill would provide that a non-party deponent may
appear at a deposition by telephone if the court finds
there is good cause and no prejudice to any party. This
bill further would provide that the procedures to
implement this section shall be established by court
order in the specific action or proceeding or by
California Rule of Court.
7. Existing law generally provides for the taking of
discovery in civil actions, subject to the supervision of
the court. [CCP Sec. 2017.]
This bill would provide for the use of advanced
electronic technologies, as defined therein, in
conducting discovery in certain cases, if the court finds
or if the parties stipulate that the use of such
technology would promote cost effective and efficient
discovery; would not create an undue economic burden on
any person; would not require undue expenditures of time
or money; would not require parties or counsel to
purchase exceptional or unnecessary services, hardware or
software; and promoted open competition among vendors and
service providers to facilitate the highest quality
service at the lowest reasonable cost.
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8. Existing law provides for various budgetary and court
funding procedures predating, and made obsolete by, the
Trial Court Funding Act. Existing law further vests the
Judicial Council with certain budgetary and allocation
authority, but is silent as to whether any of the
authority may be delegated, or as to whether the Judicial
Council may consider the input of various advisory
committees in making its allocation determination.
[Govt. Code Secs. 68113, 68502.5, 72055, 77001, 77202.]
This bill would repeal the obsolete provisions, and would
provide that the Judicial Council may delegate budgetary
activities and recommending authority as it deems
appropriate, and may consider input from other sources
when making allocation determinations. This bill would
further provide that the Judicial Council may restrict or
prohibit a trial court from transferring money from one
program to another.
9. Existing law provides that all trial court funding
from the Trial Court Trust Fund must be kept by the court
in its Trial Court Operations Fund, which resides in the
county treasury, and may be audited by the State
Controller. Existing law further provides that a court
may open a bank account to hold bail money. The Judicial
Council must obtain concurrence from the Department of
Finance and the Controller to establish a procedure for
the use of any of these funds. [Govt. Code Secs. 77009,
77206; Penal Code Sec. 1463.1.]
This bill would provide that the Judicial Council may (1)
establish a trial court operations fund separate from,
and superseding, the county-treasury-based Trial Court
Operations Fund; (2) perform audits of this fund; and (3)
establish procedures for the use of the monies in either
the Council-established or county-based fund.
10. Existing law provides that when a trial court desires
to receive services from
the county, the presiding judge of the court may enter
into a contract with the county for the provision of
those services. Existing law does not, however, provide
a cap on indirect or overhead costs that may be charged
to the court pursuant to such service contracts. [Govt.
Code Secs. 77003, 77212.]
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This bill would provide that any indirect or overhead
charges be expressly stated and must themselves contain
items of court operations only.
11. Existing law provides that cities and counties may
recover for reasonable and
necessary expenditures they have made in connection with
crimes committed at state prisons or by state prisoners.
[Penal Code Secs. 4750, 4751, 4753.]
This bill would add courts to the parties that may
recover for such expenditures made by courts.
COMMENT
1. Stated need for legislation
The Judicial Council of California, sponsor of this bill,
describes it as the result of a broad and lengthy effort
to (1) update code sections relevant to civil discovery
practice, (2) streamline and make more uniform various
civil and court procedures, (3) appropriately reflect the
changes wrought by the Trial Court Funding Act of 1997,
and (4) clarify and, in certain areas, expand Judicial
Council authority over the trial court funding allocation
process.
The sponsor notes that, as appropriate, affected entities
and interested parties, including the California State
Association of Counties (CSAC), employee representatives
of SEIU and AFSCME, and the State Bar, have reviewed and
approved sections of interest to them in the bill. The
sponsor is unaware of any concerns or opposition to any
provision of the bill.
2. Consolidation of procedures for "limited" and other
civil cases
Prior to their consolidation, municipal and superior
courts exercised jurisdiction over civil cases based on
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the amount of damages sought, with those cases seeking
$25,000 or less assigned to municipal court. Despite the
consolidation of the courts, the distinction between
civil cases seeking $25,000 or less, and those seeking
above that amount, has been preserved, with the smaller
cases now being referred to as "limited civil cases."
This bill would eliminate this distinction in various
statutes where it appears burdensome or unnecessary.
3. Establishment of Judicial Council authority over
funding process
As the responsibility for trial court funding has shifted
to the state, this bill seeks to clarify and, where
necessary, establish Judicial Council authority over the
process, and complete its separation from
county-supervised funds and processes. This bill would
permit the Judicial Council to perform audits of the
trial court funds deposited in the operations funds
residing in county treasuries and, in its discretion,
replace a county-based account with its own account for
the receipt and allocation of trial court funds in that
county.
Proposed author's amendment to provide for county and
legislative viewing
Existing law requires the trial court of each county to
submit the court's proposed budget to the Trial Court
Budget Commission, and to send the county board of
supervisors a copy. The county board of supervisors then
may comment on the proposed budget, and the Commission is
required to consider those comments when determining
appropriate budgets for the courts, thus providing some
oversight of the budget process at the county level.
This bill would delete all language referring to the
county board of supervisors getting a copy of the
proposed budget and the county's discretion to comment on
it.
The California State Association of Counties (CSAC),
while acknowledging that the transition of court funding
from counties to the state removes their direct
participation in the budget process, indicated that the
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counties still want to receive copies of their respective
courts' proposed operating budgets. Additionally,
because the state budget preparation and adoption process
does not necessarily include a detailed submittal,
county-by-county, of the budget revision/augmentation
requests, oversight of the Judicial Council's overall
budget request may not contain detailed information about
a particular court's budget.
The author and sponsor of the bill have agreed to amend
the bill to allow for the provision by the trial court to
the county of its detailed proposed budget, and the
Judicial Council to submit to the Legislature's Joint
Budget Committee appropriate reports of the trial courts'
detailed proposed budgets.
The author's amendments will be offered in Committee.
4. Depositions and the telephone: Suggested clarifying
amendment
According to the sponsor, this proposal is designed to
reduce the cost of litigation and increase efficiency.
It would conform with practices currently followed in
many civil cases, in which depositions are conducted with
the aid of telephones or videoconferencing, and would
give these practices legislative authorization.
The sponsor indicates that this provision has three
purposes: (1) to allow an attorney to conduct, and other
parties not being deposed to attend, a deposition by
telephone, without the need for a stipulation or court
approval; (2) to permit a non-party deponent to appear at
his or her deposition by telephone, where the court finds
good cause and no party is prejudiced thereby; and (3) to
confirm that a party deponent must be deposed in person.
In that regard, the author may wish to consider a
clarifying amendment as follows:
(h)(3) A person may take and any person other than
the deponent may appear at attend a deposition by
telephone or other remote electronic means .
provided the deponent is present in person at the
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deposition. The court may expressly provide that
a non-party deponent may appear at the his or her
deposition by telephone if it finds there is good
cause and no prejudice to any party. A party
deponent must appear at his or her deposition in
person. The procedures to implement this section
shall be established by court order in the
specific action or proceeding or by California
Rule of Court.
5. Discovery through advanced technology
The sponsor states that for many years, private firms
have maintained neutral document depositories to hold
discovery for all parties to a matter in litigation.
Recently, private vendors have developed electronic
document depositories, as well as web hosting and similar
discovery services for parties in litigation. Federal
and state complex litigation manuals provide for
utilizing current technology by stipulation to realize
cost savings and facilitate the discovery process.
This bill would expressly authorize the court to make
orders concerning the use of electronic discovery upon a
noticed motion. This would allow the court to resolve
disputes between the parties on issues such as storage,
access to, and production of information in electronic
form. The bill would allow parties and courts to fashion
a discovery process appropriate to their particular case.
Further, it would allow the Judicial Council, by rule,
to prescribe appropriate practices and procedures for
implementation.
Support: California Chamber of Commerce; Civil Justice
Association of California (CSAC)
Opposition: None Known
HISTORY
Source: Judicial Council of California
AB 223 (Frommer)
Page 9
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Assembly Judiciary Committee 9-0; Assembly
Appropriations Committee (consent calendar);
Assembly Floor 76-0.
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