BILL ANALYSIS Ó
AB 1197
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ASSEMBLY THIRD READING
AB
1197 (Bonilla)
As Amended April 16, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
|----------------+------+---------------------+---------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, Cristina | |
| | |Garcia, Holden, | |
| | |Maienschein, | |
| | |O'Donnell | |
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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