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