BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2020


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          Date of Hearing:   March 29, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2020  
          (Obernolte) - As Introduced February 16, 2016


                    PROPOSED CONSENT (As Proposed to be Amended)


          SUBJECT:  DISCOVERY: DEPOSITIONS


          KEY ISSUE:  IN ORDER TO REDUCE ANY CONFUSION FOR PARTIES AND TO  
          IMPROVE CONSISTENCY BETWEEN THE VARIOUS DEPOSITION SCHEDULING  
          RULES, SHOULD THE DISCOVERY RULES BE CLARIFIED TO PROVIDE when A  
          DEPOSITION may be scheduled?


                                      SYNOPSIS


          Existing law allows a party to a civil action to take a  
          deposition of any person as part of pre-trial discovery.  Before  
          a deposition is scheduled, a deposition subpoena must first be  
          issued, and then served on the deponent.  Because different  
          kinds of depositions require different levels of preparation,  
          current law sets different schedules for how soon after service  
          the deposition may occur.  However, the rules for these  
          schedules are inconsistent and can often be confusing.


          As proposed to be amended, this non-controversial bill improves  








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          the scheduling rules for depositions by providing that the  
          timeframe for when a deposition may be scheduled begins after  
          service of the deposition notice or subpoena, rather than after  
          the issuance of the subpoena.  This change also reduces  
          confusion by eliminating the need for multiple dates for when a  
          deposition may be scheduled.  This bill is sponsored by  
          Conference of California Bar Associations and has no opposition.


          SUMMARY:  Clarifies the scheduling rules for depositions.   
          Specifically, this bill:  


          1)Provides that a deposition that commands only the production  
            of business records shall be scheduled at least 15 days after  
            the service of the deposition subpoena.


          2)Provides that a subpoena duces tecum (for production of  
            records), as specified, that commands the attendance and the  
            testimony of the deponent as well as the production of  
            consumer's personal records or employment records, shall be  
            scheduled for a date at least 20 days after service of the  
            deposition subpoena. 


          EXISTING LAW:


          1)Establishes the Civil Discovery Act, which provides the manner  
            in which parties may engage in discovery.  (Code of Civil  
            Procedure Section 2016.010 et seq.  Unless provided otherwise,  
            all other statutory references are to this code.)


          2)Allows a party to a civil action to obtain discovery by, among  
            other methods, oral or written depositions, inspections of  
            documents, and simultaneous exchanges of expert trial witness  
            information. (Section 2019.010 et seq.)








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          3)Permits a party to obtain discovery from a nonparty by oral  
            deposition, written deposition, and a deposition for the  
            production of business records and other documents, as  
            specified.  (Section 2020.010.)


          4)Defines a deposition subpoena as the procedure where a  
            nonparty is generally required to provide discovery.  (Section  
            2020.010.)


          5)Provides that a deposition subpoena may command any of the  
            following:


             a)   Only the attendance and the testimony of the deponent,  
               as specified.


             b)   Only the production of business records, as specified.


             c)   The attendance and testimony of the deponent, as well as  
               the production of business records, other documents,  
               electronically stored information, and tangible things, as  
               specified.  (Section 2020.020.)


          6)Allows the clerk of the court in which an action is pending to  
            issue a deposition subpoena signed and sealed, as provided, to  
            a party requesting it.  (Section 2020.210.)


          7)Allows an attorney of record for any party to sign and issue a  
            deposition subpoena, in lieu of a court-issued deposition  
            subpoena.  (Ibid.)









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          8)States that a deposition subpoena shall be issued a sufficient  
            time in advance of the deposition to provide the deponent a  
            reasonable opportunity to locate information, as specified,  
            and a reasonable time to travel to the place of deposition.   
            (Section 2020.220.)


          9)Provides the sequence and timing for when a party in a civil  
            action may schedule the attendance and testimony of the  
            deponent, under #5(a) and provides that an oral deposition  
            shall be scheduled for a date at least 10 days after service  
            of the deposition notice.  (Section 2025.270.)


          10)Provides the sequence and timing for when a party in a civil  
            action may schedule a deposition only for the production of  
            business records, under #5(b) and provides that the deposition  
            shall be on a date that is no earlier than 20 days after the  
            issuance, or 15 days after the service, of the deposition  
            subpoena, whichever date is later.  (Section 2020.410.)


          11)Provides the requirements of a deposition subpoena that  
            commands the attendance and testimony of the deponent, as well  
            as the production of business records, other electronically  
            stored information, and tangible things, as specified, under  
            #5(c).  (Section 2020.510.)


          12)Notwithstanding specified provisions of law, a deposition  
            subpoena, as provided, to command a witness to produce  
            personal records of a consumer or employment records of an  
            employee shall be scheduled for a date at least 20 days after  
            issuance of that subpoena.  (Section 2025.270.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.








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          COMMENTS:  Existing law allows a party to a civil action to take  
          a deposition of any person, including another party or the other  
          party's witness, as part of pre-trial discovery.  Generally,  
          there are four kinds of depositions: oral testimony only,  
          written testimony, production of records, or subpoena duce  
          tecum-or, generally, a combination of oral testimony and  
          production of records.  


          Because the various depositions require different levels of  
          preparation, current law sets different schedules for when a  
          deposition may occur.  However, the rules for these schedules  
          are inconsistent and can often be confusing.


          Before a deposition is scheduled, a deposition subpoena must be  
          issued, and then served.  Currently, a deposition subpoena may  
          be issued by either: (1) a clerk of the court in which the  
          action is pending; or (2) the attorney of record.  After  
          issuance, the deposition subpoena must then be served on the  
          deponent.  Since some of the discovery rules provide that a  
          deposition occur 20 days after issuance, it is theoretically  
          possible for a party to command a deposition immediately after  
          service without violating the deposition rules.


          According to the author: 


               AB 2020 would clarify the amount of time that an individual  
               has to produce personal or employment records after being  
               subpoenaed [in a subpoena duce tecum]. Unfortunately, the  
               law is not clear on the difference between and use of the  
               terms issuance and service.  It is conceivable that a party  
               may issue a subpoena, having it signed and made effective,  
               on a date much prior to actually serving the subpoena.   
               Since the deposition date is set in relation to the  








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               issuance of the subpoena, this could effectively, give  
               subpoenaed parties much less time to prepare for a  
               deposition. 


               The law should be clear regarding minimum time a recipient  
               of a subpoena has to produce these records.  The use of the  
               term issuance by itself does not offer enough clarity to  
               parties for objectively setting a deposition date.  


               AB 2020 (Obernolte) will clarify an ambiguity in the statue  
               and ensure that all parties have adequate time to respond  
               to a subpoena.


          As proposed to be amended, this bill revises (and improves) the  
          deposition scheduling rules.  This bill conforms the various  
          scheduling rules so that depositions begin after service of the  
          deposition notice or subpoena, rather than just after the  
          issuance of the subpoena.  


          By providing that depositions begin only after service, this  
          bill also eliminates the confusion over multiple triggering  
          dates.  For example, current law requires that a deposition that  
          only requires the production of business records be scheduled at  
          least 20 days after the issuance, or 15 days after the service  
          of the deposition subpoena, whichever date is later.  As  
          proposed to be amended, this bill would require those  
          depositions to occur at least 15 days after service of the  
          deposition subpoena.  This change eliminates the need for  
          multiple dates under the law, and is consistent with other  
          discovery rules (e.g., "oral depositions are required to be  
          scheduled at least 10 days after service of the deposition  
          notice."  (Section 2025.270.)


          REGISTERED SUPPORT / OPPOSITION:








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          Support


          Conference of California Bar Associations (sponsor)




          Opposition


          None on file




          Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334