BILL ANALYSIS Ó
AB 2427
Page 1
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
AB 2427
Page 2
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.
AB 2427
Page 3
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.
AB 2427
Page 4
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:
AB 2427
Page 5
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.)
AB 2427
Page 6
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
AB 2427
Page 7
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;
AB 2427
Page 8
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
AB 2427
Page 9
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
AB 2427
Page 10
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
AB 2427
Page 11
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
AB 2427
Page 12
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:
AB 2427
Page 13
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