BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1197|
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THIRD READING
Bill No: AB 1197
Author: Bonilla (D)
Amended: 7/15/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-0, 7/7/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Moorlach, Anderson
ASSEMBLY FLOOR: 78-0, 4/23/15 - See last page for vote
SUBJECT: Deposition notices
SOURCE: Deposition Reporters Association of California
DIGEST: This bill requires that a deposing party include in
its deposition notice to the person it seeks to depose: (1) a
statement disclosing the existence of a contract, if any is
known to the noticing party, for any service beyond the noticed
deposition, between the noticing party or a third party who is
financing all or part of the action and either the deposition
officer or the entity providing the services of the deposition
officer; and (2) a statement disclosing that the party noticing
the deposition, or a third party financing all or part of the
action, directed his or her attorney to use a particular officer
or entity to provide services for the deposition, if applicable.
ANALYSIS:
Existing law:
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1)Requires, generally, that a deposition be conducted under the
supervision of an officer who is authorized to administer an
oath and is subject to all of the following requirements,
among others:
The officer must not be financially interested in the
action and shall not be a relative or employee of any
attorney of the parties, or of any of the parties;
Services and products offered or provided by the
deposition officer or the entity providing the services of
the deposition officer to any party or to any party's
attorney or third party who is financing all or part of the
action must be offered to all parties or their attorneys
attending the deposition, at the same time; and
The deposition officer or the entity providing the
services of the deposition officer must not do either of
the following: (1) provide to any party or any party's
attorney or third party who is financing all or part of the
action any service or product consisting of the deposition
officer's notations or comments regarding the demeanor of
any witness, attorney, or party present at the deposition;
or (2) collect any personal identifying information about
the witness as a service or product to be provided to any
party or third party who is financing all or part of the
action.
1)Provides that any objection to the qualifications of the
deposition officer is waived unless made before the deposition
begins or as soon thereafter as the ground for that objection
becomes known or could be discovered by reasonable diligence.
2)Provides that violation of the above provisions by any person
may result in a civil penalty of up to $5,000 imposed by a
court of competent jurisdiction.
3)Requires that a party desiring to take the oral deposition of
any person give notice in writing to that person, stating
certain information, such as:
The address where the deposition will be taken;
The date of the deposition, selected pursuant to
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specified law, and the time it will commence;
The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the
action or, if the name of the deponent is not known, a
general description sufficient to identify the person or
particular class to which the person belongs;
The specification with reasonable particularity of any
materials or category of materials, including any
electronically stored information, to be produced by the
deponent; and
Any intention by the party noticing the deposition to
record the testimony by audio or video technology, in
addition to recording the testimony by the stenographic
method as required under existing law, and any intention to
record the testimony by stenographic method through the
instant visual display of the testimony.
1)Provides that any party served with a deposition notice that
does not comply with specified deposition notice requirements
waives any error or irregularity unless that party promptly
serves a written objection specifying that error or
irregularity at least three calendar days prior to the date
for which the deposition is scheduled, on the party seeking to
take the deposition and any other attorney or party on whom
the deposition notice was served. Existing law provides that
if an objection is made three calendar days before the
deposition date, the objecting party must make personal
service of that objection, pursuant to specified law, on the
party who gave notice of the deposition.
2)Provides that any deposition taken after the service of a
written objection shall not be used against the objecting
party under specified law, if the party did not attend the
deposition and if the court determines that the objection was
a valid one.
3)Provides, in addition to serving this written objection, a
party must also move for an order staying the taking of the
deposition and quashing the deposition notice. This motion
must be accompanied by a meet and confer declaration, under
specified law, and the taking of the deposition is stayed
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pending the determination of this motion.
4)Requires the court to impose a monetary sanction, under
specified law, against any party, person, or attorney who
unsuccessfully makes or opposes a motion to quash a deposition
notice, unless it finds that the one subject to the sanction
acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
This bill requires that the following also be included in the
deposition notice:
1)A statement disclosing the existence of a contract, if any is
known to the noticing party, between the noticing party or a
third party who is financing all or part of the action and
either of the following for any service beyond the noticed
deposition: (a) the deposition officer; or (b) the entity
providing the services of the deposition officer.
2)A statement disclosing that the party noticing the deposition,
or a third party financing all or part of the action, directed
his or her attorney to use a particular officer or entity to
provide services for the deposition, if applicable.
Background
Court reporters, also known as "shorthand reporters," not only
transcribe courtroom proceedings, but also serve as judicial
officers overseeing a deposition. (See Civ. Code Sec.
2025.320.) Because they serve to provide true and accurate
records of trial proceedings (such as witness testimony, or
court orders), as well as depositions conducted by parties in
the pursuit or defense of their cases, the impartiality of these
officers of the court must be maintained, irrespective of
whether they are providing these services inside, or outside, of
the courtroom. Of particular importance for this bill, is the
issue of impartiality of deposition reporters. In this regard,
California law prohibits a deposition officer from being
financially interested in the action and or serving as a
deposition officer if he or she is a relative or employee of any
attorney of the parties, or of any of the parties. California
law further requires that, if the deposition officer or the
entity providing the services of the deposition officer offers
or provides any services and products to any party or to any
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party's attorney or third party who is financing all or part of
the action, the deposition officer or entity also must offer the
same to all parties or their attorneys attending the deposition,
at the same time. Violations of these laws by any person can
result in a civil penalty of up to $5,000. (Id.)
More generally, California regulations also require that every
person under the jurisdiction of the Court Reporters Board who
holds a license or certificate, or business that renders
professional services, namely shorthand reporting services,
within the meaning of the Moscone-Knox Professional Corporation
Act, complies with certain professional standards of practice.
These include, for example: (1) not entering into, arranging,
or participating in a relationship that compromises the
impartiality of the certified shorthand reporter, including, but
not limited to, a relationship in which compensation for
reporting services is based upon the outcome of the proceeding;
and (2) neither directly nor indirectly giving or receiving any
gift, incentive, reward, or anything of value to or from any
person or entity associated with a proceeding being reported,
other than the receipt of compensation for reporting services,
except where the items that do not exceed $100 (in the aggregate
for any combination of items given and/or received) per calendar
year or where the certified shorthand reporter reasonably
expects to be reimbursed from the Transcript Reimbursement Fund
for services provided free of charge or otherwise provided the
services for an "indigent person" as specified. (16 C.C.R. Sec.
2475(b)(6)-(8).)
This bill seeks to now require additional disclosures in a
deposing party's notice of deposition to a person it seeks to
depose, based upon concerns relating to ongoing financial
relationships, beyond a particular deposition, between the
deposing party and the person or entity providing deposition
reporting services in that particular deposition. Currently, a
deposing party must disclose certain information relating to the
deposition to the person that it seeks to depose in a notice of
deposition. This information, for example, includes the time
and place of the deposition, as well as what, if any, materials
the deponent needs to bring or produce at the deposition. If
the party fails to make the required disclosures, the person
being deposed may object to the sufficiency of that notice
pursuant to the procedures provided in the Code of Civil
Procedure, which requires that the objecting party promptly
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serve any written objections on the party seeking to take the
deposition and any other attorney or party on whom the
deposition notice was served, specifying the error or
irregularity, at least three calendar days prior to the date for
which the deposition is scheduled, as specified.
Under these provisions, any party, person, or attorney who
unsuccessfully makes or opposes a motion to quash a deposition
notice faces the imposition of specified monetary sanctions,
unless the court finds that the individual subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. (See
Code Civ. Proc. Secs. 2025.220, 2025.410.)
This bill requires a deposing party to also provide in its
deposition notice to the deponent: (1) a statement disclosing
the existence of a contract, if any is known to the noticing
party, for any service beyond the noticed deposition, between
the noticing party or a third party who is financing all or part
of the action and either the deposition officer or the entity
providing the services of the deposition officer; and (2) a
statement disclosing that the party noticing the deposition, or
a third party financing all or part of the action, directed his
or her attorney to use a particular officer or entity to provide
services for the deposition, if applicable.
Comments
As stated by the author:
There are numerous potential problems that arise under the
existence of ongoing contracts for deposition services.
First, is the potential for (or the perception of) court
reporter impartiality that occurs when ongoing contracts
effectively make the court reporting firm the "in-house"
provider of services for certain companies. Second, ongoing
contracts increase the possibility of cost shifting onto the
cost of deposition copies. Long-term contracts are often
associated with cheap rates for service. Unfortunately, one
tactic used to recoup the money lost under the contracts is to
increase the cost of copies of the deposition notice, a
practice known as cost shifting. Opposing counsel has no
choice but to use the contracted firm to order copies while at
the same time unaware of the ongoing contract which could lead
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to cost shifting. AB 1197 would correct this issue by making
all parties aware of the contract and thus more sensitive to
price discrepancies over time.
[Specifically,] AB 1197 requires a disclosure statement to be
included on the deposition notice that increases the awareness
of all parties to a deposition of the existence of ongoing
contracts for services. AB 1197 requires the disclosure of
ongoing contracts (both oral and written) to be included in
the notice of deposition that exist between the noticing party
or a third party financing the deposition and either of the
following: 1) the deposition officer or 2) the entity
providing the services of the deposition officer. However, in
certain cases lawyers may be unaware of the existence of an
ongoing contract. Still, these lawyers would be directed by
the noticing party or a third party financing the deposition
to use a particular deposition officer or entity to provide
deposition services. In these cases, a disclosure statement
must also be included in the deposition notice that the lawyer
was directed to use a particular officer or entity providing
deposition services.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified7/15/15)
Deposition Reporters Association of California (source)
California Official Court Reporters Association
Consumer Attorneys of California
Consumer Watchdog
Court Reporters Board of California
OPPOSITION: (Verified7/15/15)
Esquire Deposition Services, LLC
Magna Legal Services
U.S. Legal Support, Inc.
Veritext Corp
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ARGUMENTS IN SUPPORT: In support of the bill, Consumer
Watchdog writes that "[t]he integrity of the judicial system
depends on the public's perception that the process is fair.
Court reporters are supposed to be impartial officers of the
court, but some non licensee-owned court reporting corporations
are entering into ongoing, one-sided financial relationships
with parties to litigation who have no ethical obligations.
These corporations are also often aiding one side in litigation
by providing litigation support services in the very same
proceeding in which they are supposedly providing impartial
court reporting services. Worse, the other parties to the
litigation are often charged more for transcript copies to make
up the difference for the discount that the contracting party is
given on transcript costs. [ . . . ] AB 1197 will simply
require that the attorney preparing the notice of deposition
include in the notice one additional line disclosing: (1)
whether there exists a contract between his or her party-client
and the reporting firm being hired to transcribe the deposition;
or (2) if that is unknown, whether the lawyer's party-client has
instructed the lawyer to use a particular reporting firm. Upon
disclosure, the bill affords the other parties the opportunity
to inquire and/or to object, invoking current law's rules and
process for objections to depositions."
Also in support, the Court Reporters Board of California writes,
"the passage of this bill would shine a bright light on
contracts that may exist behind the scenes, helping to keep bias
out of the deposition room. Given the stakes, consumers of court
reporting services deserve to know the details of contracting
parties to make better, informed decisions on case management.
This bill does not restrain trade; it does, however, help guard
against actual bias and the appearance thereof."
ARGUMENTS IN OPPOSITION: A coalition of deposition services
firms (Esquire Deposition Services, LLC; Magna Legal Services;
U.S. Legal Support, Inc.; and Veritext Corp.) writes in
opposition to this bill, questioning both the need for the
legislation and the practical issues the coalition believes are
raised by the legislation. Specifically, coalition notes that
their companies "retain the most qualified licensed court
reporters to transcribe depositions, and there has been no
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credible suggestion that any partiality has resulted in
inaccurate transcripts. To the contrary, court reporters enjoy
a sterling reputation for impartiality and accuracy, truly one
of the most admired participants in the litigation
environment[.]"
ASSEMBLY FLOOR: 78-0, 4/23/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Campos, Salas
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
7/15/15 16:39:01
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