BILL ANALYSIS Ó
AB 1197
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CONCURRENCE IN SENATE AMENDMENTS
AB
1197 (Bonilla)
As Amended July 15, 2015
Majority vote
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|ASSEMBLY: | 78-0 | (April 23, |SENATE: |39-0 | (August 24, |
| | |2015) | | |2015) |
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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.
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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
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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
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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
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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
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an objection is needed in order to ensure a fair discovery
process.
Analysis Prepared by:
Khadijah Hargett / JUD. / (916) 319-2334 FN:
0001272