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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