BILL ANALYSIS                                                                                                                                                                                                    





                             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  








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          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  







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          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  







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          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  







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          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  







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          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  







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          (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  







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          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  







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          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.  







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          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)

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