BILL ANALYSIS                                                                                                                                                                                                    Ó



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          ASSEMBLY THIRD READING


          AB  
          1197 (Bonilla)


          As Amended  April 16, 2015


          Majority vote


           ------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                 |Noes                 |
          |                |      |                     |                     |
          |----------------+------+---------------------+---------------------|
          |Judiciary       |10-0  |Mark Stone, Wagner,  |                     |
          |                |      |Alejo, Chau, Chiu,   |                     |
          |                |      |Gallagher, Cristina  |                     |
          |                |      |Garcia, Holden,      |                     |
          |                |      |Maienschein,         |                     |
          |                |      |O'Donnell            |                     |
           ------------------------------------------------------------------- 


          SUMMARY:  Requires that certain contractual relationships between  
          the parties to a deposition be disclosed to all parties in the  
          deposition notice.  Specifically, this bill:  
          1)Requires a statement disclosing the existence of a contract, if  
            any, between the deposition officer or entity providing the  
            services of the deposition officer and the noticing party, or a  
            third party who is financing all or part of the action requiring  
            that party to use the officer or entity for any service beyond  
            the noticed deposition, be included.
          2)Requires a statement disclosing that the party noticing the  
            deposition, or a third party who is financing all or part of the  
            action, has directed his or her attorney to use a particular  
            officer or entity to provide services for the deposition, if  








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            applicable.


          3)Requires that if a party discloses a contractual relationship or  
            directive pursuant to this section, any other party may object  
            in writing at least three calendar days before the deposition  
            date to the use of that officer or entity.


          4)Requires that a party shall personally serve an objection made  
            pursuant to this section in accordance with Code of Civil  
            Procedure Section 1011.


          EXISTING LAW:  A party desiring to take the oral deposition of any  
          person must give notice in writing.  The notice must contain all  
          of the following: 


          1)The address where the deposition will be taken. 


          2)The date of the deposition, and the time it will commence. 


          3)The name of each deponent, and the address and telephone number,  
            if known, of any deponent who is not a party to the action. 


          4)Specific information regarding any materials, including  
            materials that are electronically stored, that the deponent is  
            to bring or produce at the deposition. 


          5)Any intention that the party noticing the deposition has to  
            record the testimony by audio or video technology, in addition  
            to recording the testimony by a stenographic method, including  
            through instant visual display. 









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          6)Any intention to reserve the right to use at trial a video  
            recording of deposition testimony of a treating or consulting  
            physician, or other expert witness testimony. 


          7)The form in which any electronically stored information is to be  
            produced, if a particular form is desired.  


          FISCAL EFFECT:  None


          COMMENTS:  Under existing law, a deposition must be noticed to all  
          parties and relevant non-parties, prior to the actual deposition.   
          Requiring notice in advance allows all parties to attend the  
          deposition and to prepare for the deposition hearing.  This bill  
          uses the existing process of noticing a deposition to facilitate  
          disclosure to all parties of any existing contractual  
          relationships that may have an impact on the pending litigation.   
          It places the burden on the party noticing the deposition to  
          include several disclosures, when applicable.  The required  
          disclosures include:  1) a statement of the existence of a  
          contract, if any between the party noticing the deposition and or  
          a third party who is financing any part of the action and either:   
          the deposition officer (court reporter) or the entity providing  
          the services of the deposition officer for any service beyond the  
          noticed deposition; and 2) a statement that the noticing party  
          directed his or her attorney to use a particular officer or entity  
          to provide services for the deposition, if applicable.  If a  
          contractual relationship or directive is disclosed, any party may  
          object in writing to the use of that officer or entity at least  
          three calendar days prior to the deposition date.  The objection  
          must be personally served in accordance with existing law. 


          Exclusive contracts are creating a damaging effect on litigation.   
          In recent years, the field of court reporting has expanded into a  
          larger, more corporate-driven business industry.  A disturbing  








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          trend has developed, threatening what was once a unique economic  
          opportunity for women.  According to an article published on the  
          Consumer Watchdog Web site, an increasing number of large  
          companies, such as those in the business of insurance and  
          construction, have entered the court reporting arena.  These  
          larger companies are effectively running the smaller, women-owned  
          court reporting companies out of the industry by establishing  
          long-term contractual agreements with court reporting agencies.   
          After forming these contractual alliances, these larger companies  
          then require their counsels to use specific agencies for all or  
          most of the depositions noticed on behalf of the corporation.  In  
          return for the guaranteed business to these dedicated court  
          reporting agencies, the large company receives reduced fees and  
          special services from the court reporting agencies.  Two of these  
          special services, which among others that have been targeted as  
          being problematic, are deposition databases and free deposition  
          summaries.  


          The impact of reduced fees and free special services in exchange  
          for volume business.  Reduced fees are exactly what they sound  
          like, requiring one party in a lawsuit to pay more for the same  
          deposition services offered to the other side for less because of  
          an existing contractual relationship.  Deposition databases are  
          proprietary databases that may contain thousands of records,  
          including expert witnesses, expert witnesses' prior testimonies,  
          various transcripts, depositions, records of parties' and experts'  
          disciplinary actions, and other information that can be compiled  
          and customized into any number of desired reports that are  
          pertinent to the specifics of individual cases.  Deposition  
          summaries are summaries of the deposition testimony transcript and  
          they simplify the work normally involved in reviewing a deposition  
          transcript because a party who receives the summary does not have  
          to sift through the entire deposition transcript in order to  
          gather the most relevant facts.  In larger cases with huge volumes  
          of testimony, the opposing party is again at a huge disadvantage  
          when they lack such a valuable tool to which the other side has.   
          In many instances, the opposing party is never given the  
          opportunity to purchase these litigation tools.








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          Other complaints regarding these special services are that  
          attorneys representing these large companies receive their copies  
          of deposition transcripts much faster than the opposing party.   
          This allows extra time for that attorney to look over the  
          deposition transcript before a hearing, or to include portions of  
          the deposition transcript into their legal briefs.  Even in  
          situations where the opposing party has the opportunity to get a  
          copy of the transcript in an expedited manner, the costs can be  
          prohibitive.  In the legal world, these litigation support  
          services are viewed as unfair because they grant huge advantages  
          to one party and huge disadvantages to another.  Plaintiffs'  
          lawyers are calling foul, arguing that these "contract or  
          agreements" amount to basically free litigation support at their  
          expense.  


          By requiring a disclosure of these existing contractual  
          relationships prior to the deposition hearing, opposing parties  
          have the opportunity to object and elect to have another agency  
          transcribe the deposition.


          Reliability of court reporters, deposition transcripts and the  
          appearance of partiality.  The complaints go even further  
          regarding these contractual relationships, with many wondering  
          whether the actual court reporters can remain neutral when they  
          are involved in these types of contractual relationships.  If one  
          side is providing continued, and in some cases, exclusive use of  
          the same reporting service, is that side getting more than just  
          great services?  Is it possible that they may be getting a better  
          deposition in the content, or in the manner in which the  
          transcript is being transcribed?  Court reporters have always been  
          considered neutral and impartial court officers in legal matters.   
          However, more frequently the question is being raised by  
          plaintiffs' attorneys nationwide, whether the court reporter and  
          or the transcript that is being produced by court reporting  
          companies in these relationships may still be granted the  








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          assumption of being reliable?  Persons and entities that were at  
          one time considered the "only impartial person in the room" are  
          now being viewed with suspicion and rising valid concerns  
          regarding the "appearance of partiality."


          By requiring that these relationships be disclosed to parties who  
          may be affected by them, this bill allows the opposing party the  
          chance to perform any necessary due diligence in order to  
          determine if an objection is needed  in order to ensure a fair  
          discovery process.




          Analysis Prepared by:                                               
          Khadijah Hargett / JUD. / (916) 319-2334  FN: 0000174