BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 788
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          ASSEMBLY THIRD READING
          AB 788 (Wagner)
          As Amended April 23, 2013
          Majority vote 

           JUDICIARY           10-0                                        
           
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          |Ayes:|Wieckowski, Wagner,       |     |                          |
          |     |Alejo, Chau, Dickinson,   |     |                          |
          |     |Garcia, Gorell,           |     |                          |
          |     |Maienschein, Muratsuchi,  |     |                          |
          |     |Stone                     |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           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.  









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          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  








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               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  








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               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 


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