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 ?