BILL ANALYSIS Ó AB 1197 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1197 (Bonilla) As Amended July 15, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: | 78-0 | (April 23, |SENATE: |39-0 | (August 24, | | | |2015) | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: JUD. 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 known by the noticing party, 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 applicable. AB 1197 Page 2 The Senate amendments: 1)Clarify that the party noticing the deposition must disclose the existence of a contract between the deposition service company or the deposition officer and the noticing party for services beyond the noticed deposition, if the noticing party has knowledge of the existence of such a contract; and 2)Remove the right of a party to serve an objection to the use of a deposition officer or entity, at least three calendar days prior to the deposition, when it has been disclosed that a contract for services beyond the noticed deposition exists between the noticing party and the deposition officer or entity. 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 AB 1197 Page 3 to recording the testimony by a stenographic method, including through instant visual display. 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. Any objection to the use of a particular deposition officer or service may be made 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 trend has developed, threatening what was once a unique economic opportunity for women. According to an article AB 1197 Page 4 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. Other complaints regarding these special services are that attorneys representing these large companies receive their copies of deposition transcripts much faster than the opposing AB 1197 Page 5 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, opposing parties have the opportunity to object as allowed by existing law. 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 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 to perform any necessary due diligence in order to determine if AB 1197 Page 6 an objection is needed in order to ensure a fair discovery process. Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334 FN: 0001272