BILL ANALYSIS Ó AB 788 Page 1 ASSEMBLY THIRD READING AB 788 (Wagner) As Amended April 23, 2013 Majority vote JUDICIARY 10-0 ----------------------------------------------------------------- |Ayes:|Wieckowski, Wagner, | | | | |Alejo, Chau, Dickinson, | | | | |Garcia, Gorell, | | | | |Maienschein, Muratsuchi, | | | | |Stone | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- 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 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 internal use, or in response to a request for discovery, court order, rule, statute, or subpoena, 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. AB 788 Page 2 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 Government Code Section 69950. Permits a reporter to charge an additional fee not to exceed the cost of the medium or any copies thereof. 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 transcript. 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. FISCAL EFFECT : None 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. 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 AB 788 Page 3 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 intended to apply only to computer-readable transcripts, the language of subdivision (d) is broader, using only the term "transcripts." On April 10, 2013, the author amended the bill as an attempt to clarify subdivision (d) as described, but in doing so set 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 concern among court reporter associations who oppose the bill. 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: 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 AB 788 Page 4 Section 69954. 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. Amendments accepted in the Assembly Judiciary Committee on April 16, 2013, significantly narrow the bill with respect to copying and sharing of paper transcripts (i.e., other than computer-readable transcripts). The bill now 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 internal use, or in response to a request for discovery, court order, rule, statute, or subpoena, but shall not otherwise provide or sell a copy or copies to any other party or person. 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 motions to compel production of copies of paper transcripts. The Assembly Judiciary 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, this bill expressly clarifies that the purchaser of a non-computer-readable transcript may, without paying a further fee to the reporter, reproduce one or more copies or portions of the transcript in response to a discovery request, in addition to a court order, rule, statute, or subpoena. Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334 FN: 0000250