BILL ANALYSIS
AB 421
Page 1
Date of Hearing: January 22, 2002
ASSEMBLY COMMITTEE ON JUDICIARY
Darrell Steinberg, Chair
AB 421 (Wayne) - As Amended: January 15, 2002
SUBJECT : VIDEOGRAPHIC RECORDING OF DEPOSITIONS
KEY ISSUE : SHOULD certain procedural requirements pertaining to
videotaped deposition testimony to be used at trial BE DELETED?
SYNOPSIS
This bill is intended to lessen litigation costs by removing the
requirement that videotaped deposition testimony of an expert
witness, to be used at trial, must be taped by a person
authorized to administer an oath who is not financially
interested in the action and is not a relative or employee of
any attorney of any of the parties. Proponents argue that this
existing requirement is costly and redundant, as the deposition
is required under existing law to be stenographically recorded
by a person authorized to administer an oath in addition to
being videotaped. Opponents voice concern that a non-neutral
videographer could use taping techniques to make a witness look
bad. Safeguards in existing law appear adequate to protect
against such malfeasance by a videographer, however.
SUMMARY : Deletes certain procedural requirements pertaining to
videotaped deposition testimony to be used at trial.
Specifically, this bill :
1)Permits an independent contractor of an attorney to operate
the videotape recording equipment to tape a deposition.
2)Deletes the requirement that that videotaped deposition
testimony of a treating or consulting physician, or expert
witness, to be used at trial, must be taped by a person
authorized to administer an oath who is not financially
interested in the action and is not a relative or employee of
any attorney of any of the parties.
3)Requires the attorney who selects the operator of the
recording equipment to make a copy of the audiotape or
videotape at the actual and reasonable cost of reproduction
for all parties requesting and paying for a copy.
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EXISTING LAW :
1)Provides that a deposition must be conducted under the
supervision of an officer who is authorized to administer an
oath, who is not financially interested in the action and is
not a relative or employee of any attorney of the parties, or
of any of the parties, and who meets specified other
requirements. (Code of Civil Procedure section 2025(k).)
2)Provides that the deposition officer shall put the deponent
under oath, and that the testimony and any objections shall be
taken stenographically, unless the parties agree or the court
orders otherwise. (Code of Civil Procedure section
2025(l)(1).)
3)Permits the party noticing the deposition to record the
testimony by audiotape or videotape in addition to the
stenographic recording. (Code of Civil Procedure section
2025(l)(1).)
4)Provide procedures for parties to object to portions of
videotaped testimony to be used at trial and for the court to
rule on such objections, and for the court to order part of
the tape to be suppressed or that an edited version of the
tape be made for trial. (Code of Civil Procedure section
2025(l)(2)(I).)
5)Provides that any party may, at trial, use a videotape
deposition of a treating or consulting physician or of any
expert witness even though the deponent is available to
testify if the deposition notice reserved the right to use the
deposition at trial and the party complies with certain
procedural requirements. (Code of Civil Procedure section
2025(u)(4).)
FISCAL EFFECT : The bill as currently in print is keyed
non-fiscal.
COMMENTS : This bill, sponsored by the Consumer Attorneys of
California, is intended to reduce litigation costs by deleting
the requirement that videotaped expert deposition testimony must
be taken by a certified videographer in order to be used at
trial. The sponsor states:
AB 421
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Code of Civil Procedure section 2025(l) extensively
addresses the audio or video recording of depositions.
Currently, any deposition may be videotaped, and the code
sets forth the parameters for taping the deposition. For
example, the operator may not distort the appearance or
demeanor of the participants. However, it requires both a
certified stenographic record of deposition and a certified
videographic record of deposition to qualify an expert's
deposition for use at trial. AB 421 simply eliminates the
requirement of a certified videographic record while
retaining all existing protections against misuse.
Hiring a certified videographer is costly. Our Los Angeles
members report paying as much as $800 a day for a certified
video operator, in addition to the cost already associated
with compensating a certified stenographic reporter. We
believe this additional cost is unnecessary in view of the
certified stenographer requirement. The certified
stenographer provides the safety valve for accuracy, and
the attorney wishing to use the videotaped deposition at
trial must still lay the proper foundation for the accuracy
of the video.
Existing Procedures for Videotaped Depositions . Under existing
law, the party noticing a deposition may record the testimony by
videotape if the notice of deposition stated an intent to do so.
(Code of Civil Procedure section 2025(l)(1). All future
references are to the Code of Civil Procedure unless otherwise
noted.) Any other party may simultaneously videotape the
deposition, so long as that party gives notice to the party
noticing the deposition, any other parties or attorneys
receiving notice of the deposition, and any deponent whose
attendance is being compelled. (Section 2025(l)(1).) Unless
the parties agree or the court orders otherwise, a videotaped
deposition would also be recorded stenographically. (Section
2025(l)(1).) As with any deposition, it must be taken before an
officer authorized to take an oath who meets specific
requirements as to neutrality. (Section 2025(k).)
Section 2025(u) permits a videotaped deposition testimony of a
treating or consulting physician or of any expert witness to be
used at trial even though the deponent is available to testify
if certain requirements are met. Under Section 2025(l)(2)(B),
the videotape must be made by a person authorized to administer
an oath who is not financially interested in the action or a
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relative or employee of any of the attorneys or any of the
parties.
In addition, section 2025(u) provides that the deposition notice
reserved the right to use the deposition at trial, and the
procedural requirements of section 2025(l)(2) (I) are met.
These requirements provide that the party intending to offer the
videotaped testimony must give notice in time to allow
objections to be made, that the judge may order certain portions
of the tape to be suppressed or order that an edited version of
the tape be prepared, that the original tape must be preserved
unaltered, and that if no stenographic recording of the
deposition testimony was made, the part offering the videotaped
testimony must accompany the offer with a stenographic
transcript prepared from the recording.
This bill deletes the requirement in Section 2025(l)(2)(B) that
the videotape be made by a person authorized to administer an
oath who is not financially interested in the action or a
relative or employee of any of the attorneys or any of the
parties.
Is a Neutral Videographer Necessary? California Defense Counsel
(CDC) opposes this bill. CDC states:
The bill raises the possibility that the manner of the
videotaping could be used to seek an advantage at trial.
Even if the tape accurately captures the words of the
deponent, lighting, backdrops, camera angles and other
devices may be employed to portray the deponent in a
negative way. These disputes really do occur in
videotaping, and can more easily be resolved if a neutral
videographer is present.
However, safeguards in existing law appear adequate to ensure
that a videotaped recording of testimony is clear and accurate.
The attorney who intends to use the testimony at trial (who
would generally be the one to arrange for videotaping) has every
incentive to ensure that the videotape is clear, and, where the
deponent is that attorney's witness, that the deponent is not
portrayed in a negative way. The requirements that a deposition
officer be present and that a stenographic recording be made in
addition to the videotape further provide assurance of the
accuracy of the recording, and that it is not later altered. An
alteration of the tape would in most cases be evident when
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compared to the stenographic transcription. Section
2025(l)(2)(I) provides a procedures for objections to be made,
should an attorney for one of the parties find that a portion of
the tape had been altered, was inaccurate or was inadmissible
for another reason. Thus it appears that the proposed change in
section 2025(l)(2)(B) would not be detrimental to the process in
cases where videotaped testimony is used.
Technical Amendment . The author may wish to consider a
technical amendment to remove the provisions in the bill
affecting section 2025(u)(4) (on pages 21 and 22 of the bill),
thus restoring the existing language of this subdivision. The
deletion of language from that subdivision appears to have been
included in a mistaken effort to conform the subdivision to the
changes made elsewhere in the bill. No change is necessary for
that purpose and the existing language in the bill might
inadvertently weaken existing procedural protections regarding
videotaped depositions.
REGISTERED SUPPORT / OPPOSITION :
Support
Consumer Attorneys of California (sponsor)
Opposition
California Defense Counsel
Analysis Prepared by : Kathy Sher / JUD. / (916) 319-2334