BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2427 (Chau)
Version: May 4, 2016
Hearing Date: June 21, 2016
Fiscal: Yes
Urgency: No
RD
SUBJECT
Civil Procedure: discovery
DESCRIPTION
This bill would authorize the use of postmortem images, as
provided, in a civil action or proceeding that relates to the
death of the deceased person, if either: (1) written
authorization is provided by a legal heir or representative of
the deceased person, as specified, before the action is filed or
while the action is pending; or (2) a subpoena is issued by a
party who is a legal heir or representative of the deceased
person in a pending civil action. This bill would separately
require 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 a deposition notice be produced no later than 3
business days before the deposition of the expert trial witness.
BACKGROUND
Section 129 of the Code of Civil Procedure expressly precludes
the making or dissemination of any photographs of a deceased
person's body, notwithstanding any other law and with very
limited exceptions. Those exceptions generally allow the use of
autopsy images in the following circumstances: in criminal
trials relating to the decedent; with court approval; for use by
law enforcement; or for medical and scientific education and
research. This section effectively recognizes that a veil of
privacy surrounds these photographs, but for narrow purposes.
When Section 129 was enacted in 1968, the urgency clause
AB 2427 (Chau)
Page 2 of ?
reflected that the section services this state's policy of
protecting "individuals and families against unconscionable
invasions of their privacy" and that "[t]he reproduction, for
unrelated and improper purposes, of any photograph of the body
of a deceased person taken in the course of a post mortem
examination or autopsy is contrary to such a policy." The
co-author of that original legislation described the purpose of
that section as vindicating "the family of a deceased person['s]
. . . right to privacy to limit reproduction of gruesome autopsy
photographs." (Marsh v. County of San Diego (2012) 680 F.3d
1148, 1156; see also AB 4 (Bear and Unruh, Ch. 6, Stats. 1968).)
Separately, the Code of Civil Procedure provides for the formal
exchange of evidentiary information and materials between
parties to a pending action. This process is known as
discovery. Generally, California's Civil Discovery Act permits
any party to a civil action to obtain discovery regarding any
matter, not privileged, that is relevant to the subject matter
in the pending action or to the determination of any motion made
in that action, if the matter either is admissible in evidence
or appears reasonably calculated to lead to the discovery of
admissible evidence. Under that Act, primary devices to conduct
discovery include interrogatories, depositions, requests for
admissions, and requests for production. Another device by
which to conduct discovery, directly relevant to this bill, is
by way of simultaneous exchanges of expert trial witness
information.
This bill, co-sponsored by the plaintiff and defense bars, seeks
to allow for the use of postmortem images in civil actions and
to ensure timely production of expert witness reports before
depositions.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, provides that, among
other rights, all people have an inalienable right to pursue and
obtain privacy. (Cal. Const., art. I, Sec. 1.)
Existing law prohibits, notwithstanding any other provision of
law, a copy, reproduction, or facsimile of any kind of any
photograph, negative, or print, including instant photographs
and video recordings, of the body, or any portion of the body,
of a deceased person, taken by or for the coroner at the scene
AB 2427 (Chau)
Page 3 of ?
of death or in the course of a post mortem examination or
autopsy from being made or disseminated. Existing law
recognizes the following limited exceptions to this rule:
for use in a criminal action or proceeding in this state that
relates to the death of that person; and
as a court of this state permits, by order after good cause
has been shown and after written notification of the request
for the court order has been served, at least five days before
the order is made, upon the district attorney of the county in
which the post mortem examination or autopsy has been made or
caused to be made. (Code Civ. Proc. Sec. 129(a).)
Existing law , among other things, provides that the above
prohibition does not apply to the making or dissemination of
such a copy, reproduction, or facsimile for use in the field of
forensic pathology, for use in medical or scientific education
or research, or by a coroner or any law enforcement agency in
this or any other state or the United States for investigative
purposes, including identification and identification
confirmation. (Code Civ. Proc. Sec. 129(b).)
Existing law provides that these provisions apply to a copy,
reproduction, or facsimile, and to a photograph, negative, or
print, regardless of when it was made. (Code Civ. Proc. Sec.
129(c).)
Existing law requires the State Registrar to prepare and
maintain comprehensive and continuous indices of all
certificates registered. Existing law provides that the
comprehensive birth and death record indices be kept
confidential and exempt from the Public Records Act, except as
specified. Existing law requires that the State Registrar
prepare and maintain separate noncomprehensive indices of all
birth and death records for public release. (Health & Saf. Code
Sec. 102230.)
Existing law , in relevant part, provides that the State
Registrar, local registrar, or county recorder shall, upon
request and payment of the required fee, supply to an applicant
a certified copy of the record of a birth, fetal death, death,
marriage, or marriage dissolution registered with the official,
only as authorized by law, below. (Health & Saf. Code Sec.
103525.)
Existing law authorizes the State Registrar, local registrar, or
county recorder to furnish a certified copy of birth, death, or
AB 2427 (Chau)
Page 4 of ?
marriage to applicants upon request if:
the request is written, faxed, or is a digitized image of a
request for a certified copy, and is accompanied by a
notarized statement, sworn under penalty of perjury, that the
requester is an authorized person, as defined; or,
the request is made in person, and the official takes a
statement, sworn under penalty of perjury, that the requester
is signing his or her own legal name and is an "authorized
person." (Health & Saf. Code Sec. 103526(a).)
Existing law defines "authorized person," for purposes of
obtaining certified copies of birth, death, or nonconfidential
marriage records, as any of the following:
the person who is the subject of the record or his or her
parent or legal guardian;
a party who is entitled to receive the record as a result of a
court order;
law enforcement or governmental agency personnel conducting
official business;
a child, grandchild, sibling, spouse, domestic partner, or
grandparent of the person who is the subject of the record;
an attorney or other person empowered to act on behalf of the
person who is the subject of the record; or
an agent or employee of a funeral establishment who orders
death certificates when acting on behalf of specified
individuals. (Health & Saf. Code Sec. 103526(c)(2).)
Existing law provides that, in all other cases in which the
requester does not meet the requirements of an authorized
person, a certified copy may be provided to the requester but
the document shall be an informational certified copy and shall
be redacted to remove any signatures that appear on the
document. Existing law requires that such a certified copy
contain the statement "INFORMATIONAL, NOT A VALID DOCUMENT TO
ESTABLISH IDENTITY." (Health & Saf. Code Sec. 103526(b).)
Existing law requires that certified copies of a birth, death or
marriage record issued pursuant to the above, contain specified
information and be printed on sensitized security paper with
specified features, including, among other things, a watermark,
fluorescent security threads, and fluorescent fibers and
requires that the State Registrar, local registrars, county
recorders, and county clerks take precautions to safeguard the
security paper. (Health & Saf. Code Sec. 103526.5.)
Existing law , the Civil Discovery Act, sets forth the
AB 2427 (Chau)
Page 5 of ?
procedures, timeframes, and scope by which parties to a civil
action conduct and obtain "discovery." Methods of discovery
include oral or written depositions; interrogatories;
inspections of documents, things, and places; physical and
mental examinations; and Simultaneous exchanges of expert trial
witness information. (Code Civ. Proc. Sec. 2016.010 et seq.;
Code Civ. Proc. Sec. 2019.010.) Existing law, the Civil
Discovery Act, specifies rules for the demand and exchange of
expert witness information. (Code Civ. Proc. Sec. 2034.210 et
seq.)
This bill would add a new exception to the general prohibition
against the making of disseminating of a copy, reproduction, or
facsimile of any kind of postmortem photographs, negatives, or
prints, as specified, above. The new exception would be for the
use or potential use in a civil action or proceeding in this
state that relates to the death of that person, if either of the
following applies:
the coroner receives written authorization from a legal heir
or representative of that person, as specified below, before
the action is filed or while it is pending; or
a subpoena is issued by a party who is a legal heir or
representative of the deceased person in a pending civil
action.
This bill would specify for the above purposes, that to verify
the identity of the legal heir or representative, either of the
following shall be provided to the coroner:
a declaration under penalty of perjury that the individual is
a legal heir or representative of the deceased person and a
valid form of identification; or
a certified death certificate.
This bill would add to the Civil Discovery Act a requirement
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 of the expert trial witness.
COMMENT
1. Stated need for the bill
According to the author, "AB 2427 will contribute to judicial
AB 2427 (Chau)
Page 6 of ?
efficiency by making litigation more productive, which will
benefit litigants, lawyers and courts." Specifically, the author
writes, "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)."
2. Bill permits heirs to receive copies of postmortem
photographs
Section 129 of the Code of Civil Procedure generally prohibits
the dissemination or reproduction of postmortem photographs of a
body or any part 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. This bill is intended to add a
new exception to this general prohibition to make it easier for
legal heirs to obtain these photographs for limited purposes.
Specifically, the bill would allow heirs or legal
representatives of the deceased to obtain the deceased
post-mortem photographs for the use or potential use in a civil
action or proceeding in this state that relates to the death of
that person: (1) a subpoena is issued by a party who is a legal
heir or representative of the deceased person in a pending civil
action; or (2) the coroner receives written authorization from a
legal heir or representative of that person, as specified,
before the action is filed or while the action is pending. In
doing so, this bill potentially raises a question as to what
happens if multiple heirs do not agree as to the use of those
photographs or wishes that they remain private. Of greater
concern, however, would be the possibility of harm to the
surviving family if anyone other than a legal heir is able to
receive the deceased's postmortem photographs without a subpoena
from the court.
Under this bill, in the absence of a subpoena from the court,
for an heir to receive the deceased's postmortem photographs,
the coroner would have to verify the identity of the legal heir
or representative before releasing any such reproductions or
copies to a person claiming to be an heir or representative.
For these purposes, the bill provides that the coroner would
have to be provided with either: (1) a declaration under penalty
of perjury that the individual is a legal heir or representative
of the deceased person and a valid form of identification; or
AB 2427 (Chau)
Page 7 of ?
(2) a certified death certificate, which under existing law can
only be granted to certain authorized individuals. Under
existing law, however, the list of "authorized" individuals who
can obtain a certified death certificate is not limited to only
the deceased's parent or legal guardian or a child, grandchild,
sibling, spouse, domestic partner, or grandparent of the person
who is the subject of the record. Authorized individuals can
also include a party who is entitled to receive the record as a
result of a court order; law enforcement or governmental agency
personnel conducting official business; an attorney or other
person empowered to act on behalf of the person who is the
subject of the record; or an agent or employee of a funeral
establishment who orders death certificates when acting on
behalf of specified individuals. (See Health & Saf. Code Sec.
103526(c)(2).) As such, the coroner could feasibly make or
disseminate a copy, reproduction, or facsimile of postmortem
photographs, negatives, or prints, upon being provided written
authorization from not just a victim's parents, children, or
other relatives, but also from an agent or employee of a funeral
establishment who orders death certificates when acting on
behalf of specified individuals or written authorization by law
enforcement or governmental agency personnel conducting official
business.
As a practical matter, it seems unlikely that such "authorized"
persons would obtain those photographs for use or potential use
in a civil action or proceeding in this state that relates to
the death of that person, as authorized by this bill. In other
words, even if one were to use false pretenses to obtain those
photos on the basis of their ability to obtain a death
certificate, they could not, under this bill, lawfully use it
for any other purposes themselves, and doing so would constitute
an unlawful "dissemination" of the photograph. Nonetheless,
assuming a violation were to occur, there could be great
emotional trauma to family if the postmortem photographs of
their loved one are publically shared and, given that any
violation of the general prohibition on disclosure could be a
violation of the family's privacy rights or a parent's
fundamental right to control the body and death images of a
deceased child, it is not unforeseeable that lawsuits could
arise over such issues. Thus, while this bill is currently
limited to "legal heirs or representatives" who present the
coroner either a declaration under penalty of perjury as to
their identity as a legal heir or representative of the deceased
individual together with a valid form of identification, or to
AB 2427 (Chau)
Page 8 of ?
persons who present a certified death certificate, the following
amendments are suggested to limit the bill to legal heirs and
require that the individual present both of those items, to
reduce the likelihood that privacy rights could be violated.
The amendment would still allow for the possibility of legal
representatives to obtain the same items by way of subpoena, as
otherwise authorized under the bill.
Suggested amendment:
On page 3, lines 13 and 18, strike "or representative"
On page 3, line 15, strike "either of the following" and
insert "both of the following"
Co-sponsor, Consumer Attorneys of California writes in support
of this expanded authorization for postmortem photographs:
Currently 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. Code of Civil Procedure
[Sec.] 129.
Currently a deceased person's next of kin cannot view these
photographs prior to determining whether or not they deem it
necessary to seek legal representation. Instead, legal heirs
and representatives must incur the expense to retain an
attorney and obtain a court order. Only then can they access
the coroner's photographs and based on that information decide
how to proceed. AB 2427 ensures that 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.
3. Production of expert witness materials
Under California law, the Civil Discovery Act, a party may
depose any person, including another party's expert witness.
Generally, in addition to depositions, after the setting of the
initial trial date for the action, any party obtain discovery by
demanding that all parties simultaneously exchange information
concerning each other's expert trial witnesses, as specified.
(Code Civ. Proc. Sec. 2034.210.) Unless the party doesn't
AB 2427 (Chau)
Page 9 of ?
intend to offer testimony of any expert witness, this exchange
of information includes the name and address of the expert
witness and a signed declaration of the expert witness, under
penalty of perjury, which includes, for example, brief narrative
statements of the expert's qualifications and the general
substance of the expert's anticipated testimony. (See Code Civ.
Proc. Sec. 2034.260.) if a demand for an exchange of
information concerning expert trial witnesses includes a demand
for production of reports and writing, all parties must produce
and exchange, at a place and a date specified in the demand, all
discoverable reports and writings, if any, made by the
designated expert witness. (Code Civ. Proc. Sec. 2034.270.)
Co-sponsor, California Defense Counsel (CDC) writes that
"[w]hile current law permits counsel to request production of
materials, reports and writings that will be relied upon by
experts in their depositions, the law does not provide an
express time requirement for the production of the expert's
file. In many cases these expert files are not produced until
the deposition actually begins, providing no time for the lawyer
conducting the deposition to become familiar with the contents.
Depositions are less productive as a result." Thus, this bill
would now provide 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 must be
produced no later than three business days before the deposition
of the expert witness. As stated by CDC, "AB 2427 is part of
the continuing effort by the plaintiff's and defense bar to
create efficiencies in civil litigation, to the benefit of
litigants, lawyers, and courts. More meaningful, productive
depositions will save time and money for litigants and lawyers,
and may reduce the need for judicial intervention in the
discovery process."
4. Opposition to post-mortem photographs provision
In opposition, the California State Sheriffs' Association (CSSA)
writes that "existing law strikes the appropriate balance among
appropriate access to postmortem photographs via court order
family privacy and coroner workload." CSSA is concerned that
allowing access to these records prior to the filing of an
action and without consideration of a judge will result in
increased workload and fishing expeditions for wrongful death
actions that may never ultimately be filed.
AB 2427 (Chau)
Page 10 of ?
In response, the author writes that "[a]lthough existing law
allows families to obtain postmortem images through a court
order for civil cases, it is 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 has
been amended to provide privacy safeguards to ensure that only
legal heirs and representatives may obtain a copy of the
images."
Support : None Known
Opposition : California State Sheriffs' Association
HISTORY
Source : California Defense Bar; Consumer Attorneys of
California
Related Pending Legislation : None Known
Prior Legislation : AB 957 (Wagner, Ch. 53, Stats. 2013) amended
Section 129 to provide for greater clarity to existing
exceptions, and to ensure that a coroner could not be held
personally liable for lawful release of images in accordance
with existing law.
Prior Vote :
Assembly Floor (Ayes 80, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************
AB 2427 (Chau)
Page 11 of ?