BILL ANALYSIS
AB 421
Page 1
ASSEMBLY THIRD READING
AB 421 (Wayne)
As Amended January 28, 2002
Majority vote
JUDICIARY 9-0
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|Ayes:|Steinberg, Robert | | |
| |Pacheco, Ashburn, | | |
| |Corbett, Dutra, Harman, | | |
| |Jackson, Chan, Wayne | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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.
FISCAL EFFECT : None
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:
Code of Civil Procedure [CCP] Section 2025(l)
extensively addresses the audio or video recording of
depositions. Currently, any deposition may be
AB 421
Page 2
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 intent to do so.
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. Unless the parties agree or the court orders
otherwise, a videotaped deposition would also be recorded
stenographically. As with any deposition, it must be taken
before an officer authorized to take an oath that meets specific
requirements as to neutrality.
CCP 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 CCP 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 relative or employee of any of the attorneys or any
of the parties.
AB 421
Page 3
In addition, CCP Section 2025(u) provides that the deposition
notice reserved the right to use the deposition at trial, and
the procedural requirements of CCP 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 CCP 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.
Safeguards in existing law other than those affected by this
bill 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 compared to the stenographic
transcription. CCP Section 2025(l)(2)(I) provides a procedure
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 CCP Section 2025(l)(2)(B)
would not be detrimental to the process in cases where
videotaped testimony is used.
Analysis Prepared by : Kathy Sher / JUD. / (916) 319-2334
FN: 0004103