BILL ANALYSIS Ó AB 2427 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2427 (Chau) As Amended August 19, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |80-0 |(May 31, 2016) |SENATE: | 39-0 |(August 24, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: JUD. SUMMARY: Streamlines the use of postmortem images in civil actions and ensures timely production of expert witness reports before depositions. Specifically, this bill: 1)Authorizes the use of postmortem images, as provided, for use or potential use in a civil action or proceeding that relates to the death of the deceased person, if: a) A coroner receives written authorization from a legal heir or representative of the deceased person before the action is filed or while the action is pending. To verify identity, the following shall be provided to the coroner: i) a declaration under penalty of perjury that the individual is a legal heir or representative, and a valid AB 2427 Page 2 form of identification; or ii) a certified death certificate. b) A subpoena is issued by a party who is a legal heir or representative of the deceased person in a pending civil action. 2)Requires that a trial expert who is noticed for a deposition shall produce any materials or category of materials called for by the deposition notice no later than three business days before his or her deposition. 3)Specifies that a deponent required to produce electronically stored information shall provide a means of gaining direct access to, or a translation into a reasonably usable form of, any electronically stored information that is password protected or otherwise inaccessible. The Senate amendments specify that a deponent required to produce electronically stored information shall provide a means of gaining direct access to, or a translation into a reasonably usable form of, any electronically stored information that is password protected or otherwise inaccessible, and provide clarifying technical amendments FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS: This bill represents the annual effort by the plaintiffs' and defense bar to jointly sponsor civil procedure legislation that seeks to create efficiencies in civil litigation, seeking to improve the process for litigants, attorneys, and the courts. Specifically, 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 the AB 2427 Page 3 production of materials requested in deposition notice of an expert witness (requiring that materials be provided three days prior to a deposition). This bill's first provision streamlines the process for families to obtain postmortem images. Currently, it is unlawful to disseminate or reproduce postmortem images taken by or for the coroner at the scene of death or in the course of a postmortem examination or autopsy unless the images are used for a criminal action involving the death of the person, or a court has issued an order upon good cause, as provided. Consistent with existing law to ensure that family's privacy rights are protected, this bill allows postmortem images to be used in a civil action either when the coroner receives written authorization from a legal heir or representative of the deceased person, or when a civil subpoena has been issued. In order to ensure that the bill does not violate a family's privacy interests, this bill requires families to verify status as a legal heir or representative before obtaining postmortem photos 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. Although existing law allows families to obtain postmortem images through a court order for civil cases, it seems 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 provides privacy safeguards to ensure that only legal heirs and representatives may obtain a copy of the images. This bill's second provision improves the timing of the production of materials requested in a deposition notice of an expert witness. Under current law, a party seeking to take the deposition of a retained expert may specify in a deposition notice the materials or category of materials to be produced by the deponent. Since an expert will usually bring those AB 2427 Page 4 materials on the day of the deposition, the deposing party may not have time to review those materials before the expert's deposition. This bill requires that when a retained expert is subject to a deposition notice to produce materials or category of materials, including electronically stored information, the expert shall produce those materials no later than three business days before his or her deposition. According to the author, this is intended to encourage efficiencies in depositions, and reduce costs for all parties during trial. Given that the law does not expressly provide for when an expert must produce his or her file for a deposition, a three-day window appears to be a reasonable approach to create efficiencies during expert discovery. To the extent that requested materials are password protected or otherwise inaccessible, this bill also requires a deponent to provide the means of gaining direct access to, or a translation into a reasonably usable form of, any electronically stored information that is password protected. Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0004780