BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2427|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  AB 2427
          Author:   Chau (D) 
          Amended:  8/19/16 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, by allowing for  
          the use of those postmortem images in a civil action or  
          proceeding that relates to the death of the deceased person, if  
          certain conditions are met.  This bill separately requires an  
          expert whose deposition is noticed, as specified, to, no later  
          than three business days before his or her deposition, produce  
          any materials or category of materials, including any  
          electronically stored information (ESI), called for by the  
          deposition notice. This bill also requires deponents who are  
          required to produce ESI, as specified, to provide a means of  
          gaining direct access to, or a translation into a reasonably  
          usable form of, any ESI that is password protected or otherwise  








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          inaccessible. 


          Senate Floor Amendments of 8/19/16 made clarifying changes to  
          the provision regarding the production of materials, including  
          ESI, by expert witnesses and ensure that parties have access to  
          password protected or otherwise inaccessible ESI, as specified. 


          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  







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             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.  


           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,









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                   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).)


           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  







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             contain the statement "INFORMATIONAL, NOT A VALID DOCUMENT TO  
             ESTABLISH IDENTITY."  


           2) 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.  


           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.  


           4) Sets forth, under the Civil Discovery Act, that the service  
             of a deposition notice, under specified law, is effective to  
             require any deponent who is a party to the action or an  
             officer, director, managing agent, or employee of a party to  
             attend and to testify, as well as to produce any document,  
             electronically stored information (ESI), or tangible thing  
             for inspection and copying. Further provides that the  
             attendance and testimony of any other (non-party) deponent,  
             as well as the production by the deponent of any document,  
             ESI, or tangible thing for inspection and copying, requires  
             the service on the deponent of a deposition subpoena under  
             other specified law. 


          This bill: 


           1) Adds a new exception to the general prohibition against the  
             making of disseminating of a copy, reproduction, or facsimile  







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             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  
             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 an expert  
             whose deposition is noticed, as specified, to, no later than  
             three business days before his or her deposition, produce any  
             materials or category of materials, including any ESI, called  
             for by the deposition notice. Also adds that a deponent  
             required by notice or subpoena to produce ESI shall provide a  
             means of gaining direct access to, or a translation into a  
             reasonably usable form of, any ESI that is password protected  
             or otherwise inaccessible. 








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          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  
          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. 








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          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)." 




          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          SUPPORT:   (Verified8/19/16)


          California Defense Counsel (co-source)
          Consumer Attorneys of California (co-source) 


          OPPOSITION:   (Verified8/19/16)


          California State Sheriffs' Association 


          ARGUMENTS IN SUPPORT:     Co-sponsor, Consumer Attorneys of  
          California writes in support of this expanded authorization for  
          postmortem photographs: 








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            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.


          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  







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          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
          8/22/16 23:03:49


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