BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                    AB 2427


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          ASSEMBLY THIRD READING


          AB  
          2427 (Chau)


          As Amended  May 4, 2016


          Majority vote


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          |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 |                    |
          |                |     |HernŠndez, Holden,    |                    |
          |                |     |Jones, Obernolte,     |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Wagner, Weber, Wood   |                    |








                                                                    AB 2427


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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 three business days before the deposition.


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, likely negligible fiscal impact related to  








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          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  








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          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  








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          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