BILL NUMBER: AB 1143 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 21, 2004
AMENDED IN SENATE JUNE 15, 2004
AMENDED IN SENATE JULY 8, 2003
AMENDED IN SENATE JULY 2, 2003
AMENDED IN ASSEMBLY MAY 20, 2003
AMENDED IN ASSEMBLY MAY 13, 2003
AMENDED IN ASSEMBLY APRIL 30, 2003
AMENDED IN ASSEMBLY APRIL 10, 2003
INTRODUCED BY Assembly Member Simitian
FEBRUARY 21, 2003
An act to amend Section 1985.3 of the Code of Civil Procedure,
relating to Internet communications.
LEGISLATIVE COUNSEL'S DIGEST
AB 1143, as amended, Simitian. Civil procedure: Internet
communications.
Existing law establishes the procedures by which a party may seek
to produce personal records maintained by certain professionals and
business entities in a civil action, as specified.
This bill would establish new procedures for the production by an
interactive computer service of online consumer information, as
specified. The bill would further make a specified statement of
legislative intent with regard to those services and good faith
procedures.
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. It is the intent of the Legislature that an
interactive computer service shall be considered to have complied
with the provisions of this act if it adopts and follows good faith
procedures designed to ensure compliance with this act.
SEC. 2. Section 1985.3 of the Code of Civil Procedure is
amended to read:
1985.3. (a) For purposes of this section, the following
definitions apply:
(1) "Personal records" means the original, any copy of books,
documents, other writings, or electronic data pertaining to a
consumer and that are maintained by any "witness" which is a
physician, dentist, ophthalmologist, optometrist, chiropractor,
physical therapist, acupuncturist, podiatrist, veterinarian,
veterinary hospital, veterinary clinic, pharmacist, pharmacy,
hospital, medical center, clinic, radiology or MRI center, clinical
or diagnostic laboratory, state or national bank, state or federal
association (as defined in Section 5102 of the Financial Code), state
or federal credit union, trust company, anyone authorized by this
state to make or arrange loans that are secured by real property,
security brokerage firm, insurance company, title insurance company,
underwritten title company, escrow agent licensed pursuant to
Division 6 (commencing with Section 17000) of the Financial Code or
exempt from licensure pursuant to Section 17006 of the Financial
Code, attorney, accountant, institution of the Farm Credit System, as
specified in Section 2002 of Title 12 of the United States Code,
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, psychotherapist, as defined
in Section 1010 of the Evidence Code, a private or public preschool,
elementary school, secondary school, or postsecondary school as
described in Section 76244 of the Education Code, or an interactive
computer service. For an interactive computer service, "personal
records" means a first and last name, pseudonym, home or other
physical address, including the name of a city, town, or street,
e-mail address, telephone number, social security number, Internet
protocol (IP) address, or any other identifier or combination of
information that allows for the identification of a consumer.
(2) "Interactive computer service" means any information service,
system, or access software provider that provides or enables computer
access by multiple users to a computer service, including, but not
limited to, a service or system that provides access to the Internet
and such systems operated or services offered by libraries or
educational institutions.
(3) "Consumer" means any individual, partnership of five or fewer
persons, association, or trust which has transacted business with, or
has used the services of, the witness or for whom the witness has
acted as agent or fiduciary.
(4) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding pursuant to this code, but shall not
include the state or local agencies described in Section 7465 of the
Government Code, or any entity provided for under Article VI of the
California Constitution in any proceeding maintained before an
adjudicative body of that entity pursuant to Chapter 4 (commencing
with Section 6000) of Division 3 of the Business and Professions
Code.
(5) "Deposition officer" means a person who meets the
qualifications specified in paragraph (3) of subdivision (d) of
Section 2020.
(b) Prior to the date called for in the subpoena duces tecum for
the production of personal records, the subpoenaing party shall serve
or cause to be served on the consumer whose records are being sought
a copy of the subpoena duces tecum, of the affidavit supporting the
issuance of the subpoena, if any, and of the notice described in
subdivision (e), and proof of service as indicated in paragraph (1)
of subdivision (c). This service shall be made as follows:
(1) To the consumer personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the consumer is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor or with whom the minor resides or by whom the
minor is employed, and on the minor if the minor is at least 12
years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
records, plus the additional time provided by Section 1013 if service
is by mail.
(4) If a subpoenaing party seeking personal records from an
interactive computer service is unable to execute service of process
under paragraph (1), it shall be made as follows:
(A) If the subpoenaing party has an e-mail address for the
consumer, to the consumer at the e-mail address not less than 20 days
prior to the date of production, along with the declaration required
by paragraph (6).
(B) If the subpoenaing party has neither an e-mail nor a postal
address for the consumer, on the interactive computer service from
which personal records are sought not less than 34 days prior to the
date for production with payment sufficient to cover first-class
postage for mailing to the consumer.
(5) If service is made on an interactive computer service under
subparagraph (B) of paragraph (4), the interactive computer service
shall notify the consumer no later than 14 days, alternatively, as
follows:
(A) If the consumer is a paid subscriber and a mailing address is
on file with the interactive computer service, the subpoena, any
supporting affidavits, the notice described in subdivision (e), and
the declaration required by paragraph (6) shall be sent via
first-class mail to the consumer.
(B) If the consumer is not a paid subscriber or is a paid
subscriber without a mailing address on file with the interactive
computer service, and his or her e-mail address is on file with the
interactive computer service, the notice described in subdivision (e)
and the declaration required by paragraph (6) shall be sent to the
e-mail address on file or the e-mail address specified by the
consumer as the address to be used for notice by the interactive
computer service. If no e-mail address is on file with the
interactive computer service, no further action is required to meet
the obligations of this subdivision.
(C) Sections 1013 and 1010.6 1010.6 and
1013 do not apply to any notification sent by an interactive
computer service to a consumer.
(6) Service made pursuant to subparagraph (B) of paragraph (4) and
paragraph (5) shall include a declaration, without attachments or
exhibits in an electronic format as directed by the
interactive computer service a plain text electronic
file , and shall contain all of the following:
(A) A statement of the cause of action, and, if the action relates
to communications, the communications that are the subject of the
action, the subpoena, or both.
(B) A statement explaining how, or in what manner, the personal
records are directly relevant to a core claim or
defense.
(C) A statement that other reasonable efforts to serve the
consumer have not been effective, that the subpoena is issued in good
faith and not for an improper purpose, and that the interactive
computer service to which the subpoena is addressed is likely to have
responsive personal records.
(D) The name of all courts in which complaints or motions relating
to this subpoena have been filed, and all corresponding case
numbers.
(E) The date of production.
(F) A statement that the subpoenaing party attests to the accuracy
of the foregoing information.
(7) The ICS interactive computer service
has no duty to track the mail or e-mail notice served under
paragraphs (4) and (5). Should notice fail due to an invalid mail or
e-mail address, the ICS interactive computer
service has no further notification obligations.
(c) Prior to the production of the records, the subpoenaing party
shall do either of the following:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the consumer or by his or her attorney of record.
The witness may presume that any attorney purporting to sign the
authorization on behalf of the consumer acted with the consent of the
consumer, and that any objection to release of records is waived.
(d) A subpoena duces tecum for the production of personal records
shall be served in sufficient time to allow the witness a reasonable
time, as provided in paragraph (1) of subdivision (d) of Section
2020, to locate and produce the records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit, if any,
served on a consumer or his or her attorney in accordance with
subdivision (b) shall be accompanied by a notice, in a typeface
designed to call attention to the notice, indicating that (1) records
about the consumer are being sought from the witness named on the
subpoena; (2) if the consumer objects to the witness furnishing the
records to the party seeking the records, the consumer must file
papers with the court or serve a written objection as provided in
subdivision (g) prior to the date specified for production on the
subpoena; and (3) if the party who is seeking the records will not
agree in writing to cancel or limit the subpoena, an attorney should
be consulted about the consumer's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(f) A subpoena duces tecum for personal records maintained by a
telephone corporation that is a public utility, as defined in Section
216 of the Public Utilities Code, shall not be valid or effective
unless it includes a consent to release, signed by the consumer whose
records are requested, as required by Section 2891 of the Public
Utilities Code.
(g) Any consumer whose personal records are sought by a subpoena
duces tecum and who is a party to the civil action in which this
subpoena duces tecum is served may, prior to the date for production,
bring a motion under Section 1987.1 to quash or modify the subpoena
duces tecum or other motion that stays or limits discovery. Notice
of the bringing of that motion shall be given to the witness and
deposition officer at least five days prior to production. The
failure to provide notice to the deposition officer shall not
invalidate the motion to quash or modify the subpoena duces tecum or
other motion, but may be raised by the deposition officer or witness
as an affirmative defense in any action for liability for improper
release of records.
Any other consumer or nonparty whose personal records are sought
by a subpoena duces tecum may, prior to the date of production, serve
on the subpoenaing party the witness, and the deposition officer, a
written objection that cites the specific grounds on which production
of the personal records should be prohibited.
No witness or deposition officer shall be required to produce
personal records after receipt of notice that the motion has been
brought by consumer, or after receipt of a written objection from a
nonparty consumer, except upon order of the court in which the action
is pending or by agreement of the parties, witnesses, and consumers
affected.
The party requesting a consumer's personal records may bring a
motion under Section 1987.1 to enforce the subpoena within 20 days of
service of the written objection. The motion shall be accompanied
by a declaration showing a reasonable and good faith attempt at
informal resolution of the dispute between the party requesting the
personal records and the consumer or the consumer's attorney.
(h) Upon good cause shown and provided that the rights of
witnesses and consumers are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
where due diligence by the subpoenaing party has been shown. The
notice provisions of paragraphs (4) and (5) of subdivision (b)
are waived do not apply if a court
determines that a temporary restraining order may issue against the
pertinent defendant consumer without
notice. Instead, the subpoenaing party shall serve the temporary
restraining order and notice of entry on the interactive computer
service concurrent with the subpoena for personal records.
A party moving for a temporary restraining order pursuant to
Section 527 who cannot give notice to an opposing party because the
information needed to give notice to that opposing party is contained
in personal records maintained by an interactive computer service,
shall be deemed to have met the requirements of subparagraph (B) of
paragraph (2) of subdivision (c) of Section 527 as to that opposing
party upon attorney or party certification of that fact to the court.
(i) This section shall not be construed to apply to any subpoena
duces tecum that does not request the records of any particular
consumer or consumers and that requires a custodian of records to
delete all information that would in any way identify any consumer
whose records are to be produced.
(j) This section does not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code, or to
civil law enforcement actions brought in the name of the people by
the Attorney General or a district attorney, to investigative
subpoenas under Section 11180 of the Government Code, or to a
subpoena issued by or on behalf of a licensee or owner of copyrighted
work seeking the identity of an individual pursuant to the Digital
Millennium Copyright Act (17 U.S.C. Sec. 512(h)).
(k) Failure to comply with this section is sufficient basis for
the witness to refuse to produce the personal records sought by a
subpoena duces tecum.
(l) In the case of service under subparagraph (B) of paragraph (4)
of subdivision (b), the interactive computer service from which
personal records are subpoenaed, may bill the subpoenaing party for
the reasonably necessary and directly incurred costs, including
attorney's fees, associated with fulfilling the obligations required
under this section. These reimbursable costs shall include any costs
due to the necessary disruption of normal operations while complying
with the subpoena, and shall not be governed by any fixed rates set
forth in paragraph (1) of subdivision (b) of Section 1563 of the
Evidence Code or any other statute. The subpoenaing party shall pay
the bill in full, or make a motion to the court to reduce these fees
based on the unreasonableness of the costs claimed within 30 days of
receipt. The interactive computer service may make a motion to the
court to compel the payment of any costs provided for in this
subdivision, and shall be entitled to recover reasonable attorney's
fees and costs from the subpoenaing party if it prevails on that
motion.