BILL ANALYSIS Ó
AB 2427
Page 1
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 | |
| | |Hernández, 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