BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2427| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2427 Author: Chau (D) Amended: 6/28/16 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE: 7-0, 6/21/16 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 ASSEMBLY FLOOR: 80-0, 5/31/16 - See last page for vote SUBJECT: Civil Procedure: discovery SOURCE: California Defense Counsel Consumer Attorneys of California DIGEST: This bill establishes a new exception to an existing prohibition against the making or disseminating of any postmortem images taken by or for the coroner, as specified. Specifically, this bill allows for the use of those postmortem images 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 separately 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 a deposition AB 2427 Page 2 notice be produced no later than three business days before the deposition of the expert trial witness. ANALYSIS: Existing law: 1) Provides, under article I, Section 1 of California Constitution, that, among other rights, all people have an inalienable right to pursue and obtain privacy. 2) Provides, under Section 129 of the Code of Civil Procedure, that, 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 of death or in the course of a post mortem examination or autopsy shall not be 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. 1) Provides, among other things, 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 AB 2427 Page 3 investigative purposes, including identification and identification confirmation. 2) Provides that these above provisions apply to a copy, reproduction, or facsimile, and to a photograph, negative, or print, regardless of when it was made. 3) Requires, pursuant to the Health and Safety Code, that the State Registrar 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. 4) Provides, in relevant part, 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. 5) Authorizes the State Registrar, local registrar, or county recorder to furnish a certified copy of birth, death, or 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).) AB 2427 Page 4 1) 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).) 1) 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." 2) Requires that certified copies of a birth, death or marriage AB 2427 Page 5 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. 3) Sets forth, under the Civil Discovery Act, the 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. Existing law, the Civil Discovery Act, specifies rules for the demand and exchange of expert witness information. This bill: 1) Adds 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. 1) Specifies for the above purposes, that to verify the AB 2427 Page 6 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; A valid form of identification; and A certified death certificate. 1) Adds 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. 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 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 coauthor of that original legislation described the purpose of AB 2427 Page 7 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. Comments As stated by the author, "AB 2427 will contribute to judicial 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)." AB 2427 Page 8 FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes SUPPORT: (Verified8/1/16) California Defense Counsel (co-source) Consumer Attorneys of California (co-source) OPPOSITION: (Verified8/1/16) California State Sheriffs' Association ARGUMENTS IN SUPPORT: 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. AB 2427 Page 9 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." 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." ARGUMENTS IN OPPOSITION: 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. ASSEMBLY FLOOR: 80-0, 5/31/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon Prepared by:Ronak Daylami / JUD. / (916) 651-4113 8/3/16 19:36:05 AB 2427 Page 10 **** END ****