BILL ANALYSIS Ó
AB 788
Page 1
Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 788 (Wagner) - As Amended: April 10, 2013
SUBJECT : COURT TRANSCRIPTS
KEY ISSUE : SHOULD A PERSON WHO HAS PURCHASED A PAPER TRANSCRIPT
FROM A COURT REPORTER BE ABLE TO COPY IT FOR ANY PURPOSE
REASONABLY RELATED TO THE CONDUCT OF OR PURSUIT OF THE CASE,
WITHOUT PAYING A FURTHER FEE TO THE REPORTER, AND SUBSEQUENTLY
PROVIDE A COPY TO ANY OTHER PARTY IN THE CASE?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law, Government Code Section 69954, establishes fees
that court reporters may charge for transcripts of court
proceedings that they prepare using computer assistance.
Subdivision (d) of Section 69954 limits the right of a purchaser
of a transcript to make a copy, except for narrow specified
purposes, and otherwise bars the distribution or resale of any
copy. According to the author, subdivision (d) needs to be
clarified to apply only to computer-readable transcripts, as the
author contends the Legislature previously intended. As
recently amended, this bill attempts to revise subdivision (d)
as described, but in doing so the bill also sets forth new rules
for the reproduction and distribution of non-computer readable
transcripts (i.e. "paper transcripts.") These additional
provisions relating to paper transcripts are a source of
contention with court reporter associations who oppose the bill
because, among other things, they believe that the typical
duplication process threatens the integrity of the certified
transcript, and that the bill unacceptably allows for
distribution of transcripts, which will reduce the number of
transcripts that their members would otherwise sell.
SUMMARY : Provides that the existing limitation on copying of
court transcripts applies only to computer-readable transcripts.
Specifically, this bill :
1)Provides that any court, party, or person who has purchased a
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computer-readable transcript may, without paying a further fee
to the reporter, reproduce a copy or portion thereof as an
exhibit pursuant to court order or rule, or for internal use,
but shall not otherwise provide or sell a copy or copies to
any other party or person.
2)Provides that any court, party, or person who has purchased a
non-computer-readable transcript may, without paying a further
fee to the reporter, reproduce one or more copies or portions
of the transcript for any purpose reasonably related to the
conduct or pursuit of the case, or for internal use, or in
response to court order, rule, statute, or subpoena.
3)Provides that the purchaser of a non-computer-readable
transcript may, without paying a further fee to the reporter,
provide a copy to any other party to the litigation at a cost
not to exceed the actual copying costs incurred in making the
copy for the other party, but shall not otherwise provide or
sell a copy or copies to any other party or person.
EXISTING LAW :
1)Provides that transcripts prepared by a court reporter using
computer assistance and delivered on a medium other than paper
shall be compensated at the same rate set for paper
transcripts, except the reporter may also charge an additional
fee not to exceed the cost of the medium or any copies
thereof. (Government Code Section 69954(a). Unless otherwise
stated, all further references are to this code.)
2)Requires the fee for a second copy of a transcript on appeal
in computer-readable format ordered by or on behalf of a
requesting party within 120 days of the filing or delivery of
the original transcript shall be compensated at one-third the
rate set forth for a second copy of a transcript as provided
in Section 69950. Permits a reporter to charge an additional
fee not to exceed the cost of the medium or any copies
thereof. (Section 69954(b).)
3)Requires the fee for a computer-readable transcript to be paid
by the requesting court, party, or person, unless the
computer-readable transcript is requested by a party in lieu
of a paper transcript required to be delivered to that party
by the rules of court. In that event, the fee shall be
chargeable as statute or rule provides for the paper
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transcript. (Section 69954(c).)
4)Provides that any court, party, or person who has purchased a
transcript may, without paying a further fee to the reporter,
reproduce a copy or portion thereof as an exhibit pursuant to
court order or rule, or for internal use, but shall not
otherwise provide or sell a copy or copies to any other party
or person. (Section 69954(d).)
COMMENTS : Existing law, Government Code Section 69954,
establishes fees that court reporters may charge for transcripts
of court proceedings that they prepare using computer
assistance. Subdivision (d) of Section 69954 limits the right
of a purchaser of a transcript to make a copy, except for narrow
specified purposes, and otherwise bars the distribution or
resale of any copy. According to the author, subdivision (d)
needs to be clarified to reflect the fact that it broadly
applies to "transcripts" in general, although the statute as a
whole, contends the author, was intended to apply only to
computer-readable transcripts. As recently amended, this bill
attempts to clarify subdivision (d) as described, but in doing
so the bill also sets forth new rules for the reproduction and
distribution of non-computer readable transcripts (i.e. "paper
transcripts.") These additional provisions relating to paper
transcripts are a source of contention with court reporter
associations who oppose the bill for reasons described below.
Disagreement over the legislative intent of Section 69954.
According to the sponsor of the bill, the California Conference
of Bar Associations (CCBA):
The current version of Government Code Section 69954
was created in 1993 through enactment of AB 1929
(Weggeland). AB 1929 was sponsored by the Attorney
General to provide a cost-effective means for
Department of Justice attorneys and employees to
utilize computer technology to make notes on trial
transcripts for death penalty and other criminal
appeals, because most court reporters refused to
provide an additional copy of a transcript on computer
disk unless they were compensated for the taking and
preparation of two original transcripts. AB 1929 set a
reduced price for the computer-readable transcript, but
limited the circumstances under which it could be
duplicated. Unfortunately, although the statute was
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intended to apply only to computer-readable
transcripts, the language of subdivision (d) is
broader, using only the term "transcripts."
In stark contrast, the California Court Reporters Association
(CCRA) contends that the choice of the term "transcripts"
(rather than "computer-readable transcripts") is deliberate
because the Legislature fully intended the copying limitations
imposed by subdivision (d) to apply to all transcripts, not just
computer-readable ones. In its letter opposing the bill, CCRA
writes:
Current law was the result of negotiations between the
office of the California Attorney General and the
California Court Reporters Association, and was
approved by the California Legislature without
opposition. To accommodate the office of the Attorney
General, the California Court Reporters Association
agreed to include in the law that a reduced cost of a
second copy of a transcript on appeal in
computer-readable format be compensated at one-third
the regular rate for a second copy set by statute.
The reality of court reporters preparing transcripts is
that every transcript and every copy of every
transcript is prepared using a computer and a computer
readable transcript. Government Code Section 69954(d)
was never intended to apply to only those transcripts
that are delivered in computer format; it was intended
to apply to all transcripts prepared by official court
reporters.
There is no ambiguity in the existing legislation.
Present law is the best method by which court reporters
can be appropriately remunerated for exactly what they
do.
. . . The copyright-type protection the law presently
allows was fully vetted at the time the Legislature
added subdivision (d) to Section 69954.
The Committee notes that even if subdivision (d) was the result
of a negotiated compromise in 1993, as attested to by CCRA, the
Legislature retains full authority to amend and overwrite
existing law as it sees fit through the legislative process.
Determining the Legislature's true intent in 1993 when it
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enacted Section 69954 is relevant but not dispositive to an
evaluation of the public policy that this bill would establish
were it to become law in its current form.
As a matter of policy, this bill proposes two new rules for the
copying and sharing of copies of paper transcripts. This bill
applies the limitations of existing subdivision (d) specifically
to computer-readable transcripts. Therefore, the rules for
copying and sharing that apply to computer-readable transcripts
are unchanged by this bill.
The bill does, however, provide two new rules with respect to
copying and sharing of paper transcripts (i.e. other than
computer-readable transcripts.) The April 10 amendments
establish new section 69954.5, which provides that the purchaser
of a paper transcript may, without paying a further fee to the
reporter, reproduce one or more copies or portions of the
transcript for any purpose reasonably related to the conduct or
pursuit of the case , for internal use, or in response to court
order, rule, statute, or subpoena. (Emphasis added.) In other
words, this bill expressly allows paper transcripts to be
reproduced more broadly than currently permitted under existing
subdivision (d) if that subdivision is strictly read to apply to
paper transcripts.
In addition, the bill provides that a purchaser of a paper
transcript, without paying a further fee to the reporter, may
provide a copy to any other party to the litigation at a cost
not to exceed the actual copying costs incurred in making the
copy for the other party , but shall not otherwise provide or
sell a copy or copies to another party or person. (Emphasis
added.) By contrast, this provision expressly allows the
purchaser to provide a copy to another party to the litigation
(and recoup his copying costs), whereas current subdivision (d)
prohibits the purchaser from providing or selling a copy or
copies to any other party or person, unless pursuant to a court
order or rule.
Proponents of the bill contend that these new rules are not all
that new because they simply reflect common, reasonable sharing
practices already engaged in by many attorneys. They note that
even though the authority to make copies of a transcript has
been expanded to include any purpose reasonably related to the
pursuit of the case, those copies may only be provided to other
parties to the litigation. The bill continues to prohibit
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providing or selling copies of the transcript to non-parties or
any other person.
Nevertheless, CCRA continues to oppose this bill even after the
most recent amendments because they believe it unacceptably
allows for distribution of transcripts, and as a result will
reduce the number of transcripts that their members would
otherwise sell. In addition, CCRA contends that allowing copies
of paper transcripts to be copied and shared is bad public
policy that threatens the integrity of the certified transcript
because duplication requires the bound transcript to be torn
apart and then reassembled after copying. This would negate the
security of the court reporter's transcript, they assert,
because it would be inappropriate for any court reporter to
subsequently re-certify a transcript that had initially been
certified by the reporter out of concern that, for example, some
pages had been lost or mixed up in the process of duplicating it
on a copy machine.
Finally, proponents simply contend that this bill is justified
because court reporters should not necessarily be entitled to
near "copyright-type protection" over transcripts that they
produce. The sponsor, CCBA, states:
Court reporters are already compensated for the time
and effort expended to take down trial or deposition
testimony, and for preparing the original and certified
paper copies of trial court and deposition transcripts.
Making a verbatim transcription of trial or deposition
proceedings is not a creative process, however, and
presumably that transcription is not entitled to
copyright protection. To the extent court reporters
have invested in equipment that allows for the creation
of a computer-readable transcript, they should be
entitled to extra compensation for that beneficial
service which is reflected in Government Code Section
69954. Yet subdivision (d) of the section appears to
give the reporter a monopoly over all transcriptions
for proceedings they report.
Potential Compromise To Address Author's Stated Concern. One of
the principal concerns the author wishes to address appears to
be to clarify the reproduction of transcripts in course of civil
litigation or where otherwise permitted by law. According to
CCBA, some trial courts have interpreted subdivision (d) to deny
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motions to compel production of copies of paper transcripts.
The Committee did not receive any specific information about
examples where trial courts have denied such motions based on
subdivision (d), so it remains unknown what the true frequency
of this problem may be. Nevertheless, to prevent this problem
it may be useful to clarify that a court, party, or person who
has purchased a non-computer-readable transcript may, without
paying a further fee to the reporter, reproduce one or more
copies or portions of the transcript for internal use, or in
response to a discovery request, court order, rule, statute, or
subpoena.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (CCBA) (sponsor)
Opposition
California Court Reporters Association (CCRA)
Orange County Superior Court Reporters Association
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334