BILL ANALYSIS Ó
AB 2427
Page 1
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