BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  May 3, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2427  
          (Chau) - As Amended April 12, 2016


                              As Proposed to be Amended


          SUBJECT:  CIVIL PROCEDURE


          KEY ISSUES:  


          1)SHOULD the process for a surviving family member to obtain a  
            postmortem image of a deceased family member BE STREAMLINED IN  
            A WAY THAT IS CONSISTENT WITH FAMILY-PRIVACY INTERESTS AND  
            which MAY REDUCE LITIGATION COSTS AND THE NEED FOR grieving  
            FAMILIES TO GO TO COURT?


          2)IN ORDER TO ENCOURAGE EFFICIENt DEPOSITIONS OF EXPERT TRIAL  
            WITNESSES AND TO POTENTIALLY REDUCE LITIGATION COSTS, SHOULD  
            AN EXPERT WITNESS BE REQUIRED TO PROVIDE, AT LEAST THREE DAYS  
            BEFORE A DEPOSITION, REPORTS AND WRITINGS created by the  
            expert witness? 


                                      SYNOPSIS










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          This bill, co-sponsored by the Consumer Attorneys of California  
          and the California Defense Counsel, represents another annual  
          effort between the civil plaintiffs' and defense bar to jointly  
          sponsor civil procedure legislation that creates efficiencies in  
          civil litigation and improves the process for litigants,  
          attorneys, and the courts.  Specifically, this bill adds two  
          civil procedure efficiencies.


          The first proposal involves postmortem images, making it easier  
          for families to obtain postmortem images so they can properly  
          determine whether to pursue litigation over the death of a  
          family member, such as a wrongful death claim.  Under current  
          law, the only path for civil litigants to obtain postmortem  
          images is through a court order.  This bill would allow a legal  
          heir or representative to obtain postmortem images from the  
          coroner by either validating their identity as a legal heir or  
          representative, or by subpoena.  In opposition, the California  
          State Sheriff's Association contends that existing law strikes  
          the appropriate balance between the court and the coroner's  
          workload and family privacy, and that expanding the  
          dissemination of postmortem images would increase workload for  
          the state's fifty counties that have combined sheriff-coroner  
          offices.  In order to ensure that the bill does not violate a  
          family's privacy interests over death images, this bill, as  
          proposed to be amended, requires a family member to verify his  
          or her status as a legal heir or representative before obtaining  
          postmortem photos.


          The second proposal involves the timing of disclosure in a  
          deposition of reports created by an expert witness, requiring  
          that experts provide their reports and writings at least three  
          days before a deposition.  This requirement will provide time  
          for the attorneys to review the documents in preparation of the  
          expert's deposition, thus encouraging more efficient  
          depositions, which may reduce litigation costs for all parties.










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          SUMMARY:  Streamlines the use of postmortem images in civil  
          actions and ensures timely production of expert witness reports  
          before depositions.  Specifically, this bill:


          1)Authorizes the use of postmortem images, as provided, for use  
            or potential use in a civil action or proceeding that relates  
            to the death of the deceased person, if:


             a)   A coroner receives written authorization from a legal  
               heir or representative of the deceased person before the  
               action is filed or while the action is pending.  To verify  
               identity, the following shall be provided to the coroner:  
               (1) a declaration under penalty of perjury that the  
               individual is a legal heir or representative, and a valid  
               form of identification; or (2) a certified death  
               certificate.


             b)   A subpoena is issued by a party who is a legal heir or  
               representative of the deceased person in a pending civil  
               action.


          2)Requires that any materials or category of materials,  
            including any electronically stored information, and any  
            discoverable reports and writings of an expert trial witness,  
            demanded to be produced in the deposition notice be produced  
            no later than 3 business days before the deposition.


          EXISTING LAW:  


          1)Recognizes a right to privacy under the United States  
            Constitution under the Due Process Clause of the 14th  
            Amendment.  (U.S. Const., 14th Amend.; see also Boyd v. United  
            States (1886) 116 U.S. 616; Meyer v. Nebraska (1923) 262 U.S.  








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            390; Griswold v. Connecticut (1965) 381 U.S. 479; Lawrence v.  
            Texas (2003) 539 U.S. 558.)


          2)Provides that all people are by nature free and independent  
            and have inalienable rights.  Among these are enjoying and  
            defending life and liberty, acquiring, possessing, and  
            protecting property, and pursuing and obtaining safety,  
            happiness, and privacy.  (Cal. Const., Art. I, Section 1.)


          3)Prohibits making a copy, reproduction, or facsimile of a  
            photograph, negative, or print of the body of a deceased  
            person taken by, or for, the coroner at the scene of death, or  
            in the course of a post mortem examination or autopsy, except  
            for use in a criminal proceeding that relates to the death of  
            that person or by order of the court for good cause, as  
            specified.  This provision does not apply to making a copy,  
            reproduction, or facsimile for use in the field of forensic  
            pathology, in medical or scientific education or research, or  
            by any law enforcement agency.  (Code of Civil Procedure  
            Section 129.  Unless otherwise provided, all further statutory  
            references are to Code of Civil Procedure.)


          4)Provides that the State Registrar, local registrar, or county  
            recorder shall, upon request and payment of the required fee,  
            provide to any applicant a certified copy of a record of  
            birth, death, marriage, or marriage dissolution that is  
            registered with the official.  Provides that only an  
            "authorized person" may receive a certified copy of a birth,  
            death or marriage certificate.  (Health and Safety Code  
            Sections 103525, 103526.) 


          5)Defines an "authorized person" who may receive a certified  
            copy of a birth, death, marriage record, and not an  
            informational certified copy, as: 









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             a)   The registrant or a parent or legal guardian of the  
               registrant; 


             b)   A party entitled to receive the record as a result of a  
               court order; 


             c)   A member of a law enforcement agency or another  
               governmental agency who is conducting official business, as  
               provided; 


             d)   A child, grandparent, grandchild, sibling, spouse, or  
               domestic partner of the registrant; 


             e)   An attorney representing the registrant or the  
               registrant's estate; or 


             f)   A funeral establishment.  (Health and Safety Code  
               Section 103526 (c).) 


          6)Establishes the Civil Discovery Act, which provides the manner  
            in which parties may engage in discovery.  (Section 2016.010  
            et seq.)


          7)Allows a party to a civil action to obtain discovery by: oral  
            or written depositions; interrogatories; inspections of  
            documents, things, and places; physical and mental  
            examinations; requests for admissions; and simultaneous  
            exchanges of expert trial witness information.  (Section  
            2019.010 et seq.)










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          8)Establishes certain discovery rules concerning expert  
            witnesses.  (Section 2034.010 et seq.)


          9)Provides that after the setting of the initial trial date for  
            the action, any party may obtain discovery by demanding that  
            all parties simultaneously exchange information concerning  
            each other's expert trial witnesses to the following extent:


             a)   Any party may demand a mutual and simultaneous exchange  
               by all parties of a list containing the name and address of  
               any natural person, including one who is a party, whose  
               oral or deposition testimony in the form of an expert  
               opinion any party expects to offer in evidence at the  
               trial.


             b)   If any expert designated by a party as provided is a  
               party or an employee of a party, or has been retained by a  
               party for the purpose of forming and expressing an opinion  
               in anticipation of the litigation or in preparation for the  
               trial of the action, the designation of that witness shall  
               include or be accompanied by an expert witness declaration.  



             c)   Any party may also include a demand for the mutual and  
               simultaneous production for inspection and copying of all  
               discoverable reports and writings, if any, made by any  
               expert in the course of preparing that expert's opinion.   
               (Section 2034.210.)


          10)Provides that on receipt of an expert witness list from a  
            party, any other party may take the deposition of any person  
            on the list.  Unless stated otherwise by law, the procedures  
            for taking oral and written depositions as provided apply to a  
            deposition of a listed trial expert witness.  (Section  








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            2034.410 et seq.)


          11)Provides that if a demand for an exchange of information  
            concerning expert trial witnesses includes a demand for  
            production of reports and writings, all parties shall produce  
            and exchange, at the place and on the date specified in the  
            demand, all discoverable reports and writings, if any, made by  
            any designated expert.  (Section 2034.270.)


          12)Provides a trial court shall exclude from evidence the expert  
            opinion of any witness that is offered by any party who has  
            unreasonably failed to do any of the following:


             a)   List that witness as an expert as provided.


             b)   Submit an expert witness declaration.


             c)   Produce reports and writings of expert witnesses as  
               provided.


             d)   Make that expert available for a deposition as provided.  
                (Section 2034.300.)


          13)Pursuant to the Federal Rules of Civil Procedure, a party  
            must disclose to the other parties the identity of any witness  
            it may use at trial to present evidence as provided.  The  
            disclosure must be accompanied by a written report, as  
            provided, and contain the following:


             a)   A complete statement of all opinions the witness will  
               express and the basis and reasons for them;








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             b)   The facts or data considered by the witness in forming  
               them;


             c)   Any exhibits that will be used to summarize or support  
               them; and


             d)   The witness's qualifications, including a list of all  
               publications authored in the previous 10 years.


             e)   A list of all other cases in which, during the previous  
               4 years, the witness testified as an expert at trial or by  
               deposition; and


             f)   A statement of the compensation to be paid for the study  
               and testimony in the case.  (Fed. Rules Civ. Proc., Rule 26  
               (a)(2), 28 U.S.C.)


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


          COMMENTS:  This bill, co-sponsored by the Consumer Attorneys of  
          California and the California Defense Counsel, represents the  
          annual effort by the plaintiffs' and defense bar to jointly  
          sponsor civil procedure legislation that seeks to create  
          efficiencies in civil litigation, seeking to improve the process  
          for litigants, attorneys, and the courts.  Specifically, this  
          bill adds two civil procedure efficiencies; the first provision  
          involves postmortem images in civil actions (making it easier  
          for heirs to obtain them); the second provision involves the  
          timing of reports created by expert witnesses for a deposition  
          (requiring them to be provided three days prior to a  








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          deposition).  


          This bill's first provision streamlines the process for families  
          to obtain postmortem images.  State and federal courts have  
          recognized that family members have a privacy interest in the  
          death images of a loved one.  (Catsouras v. Department of  
          California Highway Patrol (2010) 181 Cal.App.4th 856, 863-864;  
          see also Marsh v. County of San Diego (2012) 680 F.3d 1148,  
          1158.)  In Catsouras, an 18-year old woman was tragically killed  
          and nearly decapitated in an automobile accident.  Those images  
          were transmitted by two California Highway Patrol officers to  
          friends and family, who posted those images on the internet.   
          The survivors of the 18-year old woman filed claims against the  
          officers.  A California Court of Appeal determined that in  
          posting those images, the family's privacy interests were  
          violated because "there [was] no indication that any issue of  
          public interest?was involved" and that the public dissemination  
          of the photograph was a case of "pure morbidity and  
          sensationalism without legitimate public interest or law  
          enforcement purpose."  (Id. at 874.)  In Nat'l Archives &  
          Records Admin. v. Favish (2004) 541 U.S. 157, the United States  
          Supreme Court recognized that a decedent's surviving family  
          members have a right to personal privacy in their close  
          relative's death-scene images and that the federal Freedom of  
          Information Act requires an agency to consider the family's  
          rights when deciding whether to release such images.  (Id. at  
          170.)  Accordingly, it appears that when the government releases  
          postmortem images, it must weigh the interests of the family's  
          privacy against the interests of the public. 


          Consistent with existing case law, current statute limits the  
          dissemination and use of postmortem photos to several instances.  
           Currently, it is unlawful to disseminate or reproduce  
          postmortem images taken by or for the coroner at the scene of  
          death or in the course of a postmortem examination or autopsy  
          unless the images are used for a criminal action involving the  
          death of the person, or a court has issued an order upon good  








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          cause, as provided.


          According to the author and sponsors, legal heirs or  
          representatives of a deceased individual cannot access any  
          coroners' photographs of their deceased family member without  
          first obtaining counsel and seeking permission from the court.   
          Thus, it is difficult for a deceased person's next of kin to  
          determine whether it is appropriate to pursue legal  
          representation.


          Consistent with existing law, this bill ensures that family's  
          privacy rights are protected, and makes it easier for families  
          to obtain postmortem images for civil actions.  This bill allows  
          postmortem images to be used in a civil action either when the  
          coroner receives written authorization from a legal heir or  
          representative of the deceased person, or when a civil subpoena  
          has been issued.  In order to ensure that the bill does not  
          violate a family's privacy interests, this bill, as proposed to  
          be amended, requires families to verify status as a legal heir  
          or representative before obtaining postmortem photos.  Under the  
          proposed amendments, identify is verified by either providing a  
          declaration under penalty of perjury and valid identification,  
          or a copy of a certified death certificate, which is only issued  
          to specific surviving family members.  In opposition, the  
          California State Sheriffs' Association contends that expanding  
          the dissemination of postmortem images for use or potential use  
          in a civil action would increase the work load for the State's  
          fifty counties that have a combined sheriff-coroner office.  The  
          opposition also contends that the existing law strikes the  
          appropriate balance between the court and the coroner's  
          workload, and family privacy, and that without the consideration  
          of a judge, this bill will result in fishing expeditions for  
          wrongful death actions that may never ultimately be filed.


          Although existing law allows families to obtain postmortem  
          images through a court order for civil cases, it seems  








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          reasonable to allow families to obtain postmortem to help those  
          families determine for themselves whether they should pursue  
          litigation.  Indeed, to the extent that families receive images  
          and decide not to pursue a wrongful death claim, this bill would  
          reduce burdens on the court and the county coroner who might  
          have been subpoenaed to testify on the postmortem images.   
          Additionally, the bill, as proposed to be amended, provides  
          privacy safeguards to ensure that only legal heirs and  
          representatives may obtain a copy of the images.


          To address coroner workload concerns, the author and sponsors  
          may consider whether it is appropriate to include a sunset  
          clause on this provision of the bill.


          This bill's second provision requires materials "of an" expert  
          trial witness, demanded to be produced in a deposition notice,  
          to be produced no later than three business days before the  
          witness's deposition.   During pretrial discovery, a party may  
          depose any person, including another party's expert witness.  In  
          addition to depositions, parties may exchange information about  
          each other's expert trial witnesses once the parties have set a  
          trial date.  This exchange of information may include: (1) the  
          name and address of the expert witness; (2) a declaration of the  
          expert witness which includes information such as the expert's  
          qualifications and a narrative statement of the general  
          substance of the expert's testimony; (3) and any discoverable  
          reports and writings made by the expert witness in the course of  
          preparing that expert's opinion.  When there is a demand for  
          exchange of information for discoverable reports and writings  
          made by the expert witness (see #3), current law requires  
          parties to produce and exchange those reports and writings "at  
          the place and on the date specified in the demand."  (Section  
          2034.270.) 


          According to the sponsors, current law allows parties to request  
          the production of materials, reports, and writings that will be  








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          relied upon by experts in their depositions.  However, the law  
          does not expressly provide for when an expert must produce their  
          file for a deposition.  Indeed, current law merely states that  
          when it comes to an exchange of expert reports, the exchange  
          shall be "at the place and on the date specified in the demand."


          This bill requires that any materials or category of materials  
          that are demanded, including any electronically stored  
          information, and any discoverable reports and writings of an  
          expert trial witness, to be produced in the deposition notice be  
          produced no later than three business days before the  
          deposition.  As the bill reads, it is unclear what are the  
          materials "of an" expert trial witness.  When considering the  
          bill in light of other provisions of law relating to  
          simultaneous exchange of expert witness information, it seems  
          reasonable to interpret "of an" expert trial witness to mean  
          "made by."  Accordingly, it appears reasonable to require that  
          experts provide their reports and writings at least three days  
          before a deposition to provide time for the attorneys to review  
          the documents in preparation of the expert's deposition.  This  
          encourages efficiencies in depositions, and may reduce costs for  
          all parties.  Indeed, several practice guides encourage  
          attorneys to subpoena the expert reports before the deposition  
          to prevent any waste of time during the deposition.


          To the extent that the Author and the sponsors intend the term  
          "of an" to mean something more than "made by," the Author and  
          the sponsors should consider an amendment to clarify the  
          language.  (For example, "of an" could be interpreted to mean  
          "relied upon," which would require the expert to produce facts  
          or data considered by the expert in forming the expert's  
          opinion.  (See Fed. Rules Civ. Proc., Rule 26 (a)(2), 28  
          U.S.C.).)


          REGISTERED SUPPORT / OPPOSITION:









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          Support


          Consumer Attorneys of California (co-sponsor)


          California Defense Counsel (co-sponsor)




          Opposition


          California State Sheriff's Association




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