BILL ANALYSIS Ó AB 2427 Page 1 ASSEMBLY THIRD READING AB 2427 (Chau) As Amended May 4, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Judiciary |10-0 |Mark Stone, Wagner, | | | | |Alejo, Chau, Chiu, | | | | |Gallagher, | | | | | | | | | | | | | | |Cristina Garcia, | | | | |Holden, Maienschein, | | | | |Ting | | | | | | | |----------------+-----+----------------------+--------------------| |Appropriations |20-0 |Gonzalez, Bigelow, | | | | |Bloom, Bonilla, | | | | |Bonta, Calderon, | | | | |Patterson, Daly, | | | | |Eggman, Gallagher, | | | | |Eduardo Garcia, Roger | | | | |Hernández, Holden, | | | | |Jones, Obernolte, | | | | |Quirk, Santiago, | | | | |Wagner, Weber, Wood | | AB 2427 Page 2 | | | | | | | | | | ------------------------------------------------------------------ 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 three business days before the deposition. FISCAL EFFECT: According to the Assembly Appropriations Committee, likely negligible fiscal impact related to AB 2427 Page 3 enforcement of the requirement to provide documentation under penalty of perjury. COMMENTS: This bill 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 deposition). This bill's first provision streamlines the process for families to obtain postmortem images. 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 cause, as provided. Consistent with existing law to ensure that family's privacy rights are protected, 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 requires families to verify status as a legal heir or representative before obtaining postmortem photos 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. Although existing law allows families to obtain postmortem images through a court order for civil cases, it seems 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 AB 2427 Page 4 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 provides privacy safeguards to ensure that only legal heirs and representatives may obtain a copy of the images. 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. Current law allows parties to request the production of materials, reports, and writings that will be 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 AB 2427 Page 5 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. Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0003086