BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2427


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          2427 (Chau)


          As Amended  August 19, 2016


          Majority vote


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          |ASSEMBLY:  |80-0  |(May 31, 2016) |SENATE: | 39-0 |(August 24,      |
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          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  








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               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  








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          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  








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          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