BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
AB 421 A
Assembly Member Wayne B
As Amended August 5, 2002
Hearing Date: August 13, 2002 4
Code of Civil Procedure 2
CJW 1
SUBJECT
Depositions: Recording
DESCRIPTION
This bill would provide that a person who videotapes a
deposition for use at trial need not meet the
qualifications of a deposition officer. The bill also
would provide that the videographer may be an attorney, or
may be an employee or independent contractor retained by
the attorney taking the deposition.
BACKGROUND
This bill is intended to lessen litigation costs by
removing the requirement that videotaped deposition
testimony, to be used at trial, must be taped by a person
who meets the standards of disinterest from the litigation
required of a deposition officer. Proponents argue that
this is costly and redundant, since the stenographer is the
deposition officer, and since sufficient legal safeguards
already exist to protect against any distortion or
malfeasance by a videographer.
CHANGES TO EXISTING LAW
Existing law provides that a deposition must be conducted
under the supervision of an officer authorized to
administer an oath, who is not financially interested in
the action and is not a relative or employee of any party,
or party's attorney, and who meets other specified
(more)
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Page 2
requirements. [CCP Sec. 2025(k).]
Existing law requires the deposition testimony and any
objections to be taken stenographically, unless the parties
agree or the court orders otherwise, and also permits any
party to record the testimony by audiotape or videotape,
subject to specified conditions. [CCP Sec. 2025(l)(1).]
Existing law further requires that the operator of audio or
video recording equipment at a deposition be competent to
set up, operate, and monitor the equipment in the manner
prescribed by law, and permits the operator to be an
employee of the attorney taking the deposition, unless the
operator also is the deposition officer. [CCP Sec.
2025(l)(2).]
Existing law provides that any party may use a videotaped
deposition of an expert witness at trial, even though the
deponent is available to testify, if the deposition notice
reserved the right to do so, and the party complies with
certain procedural requirements. [CCP Sec. 2025(u)(4).]
Existing law further provides that any party may object to
all or part of videotaped testimony for trial purposes, and
that the court may order portions of the tape suppressed,
or that an edited version be made for trial. [CCP Sec.
2025(l)(2)(I).]
Existing law further requires that, where videotaped
testimony is intended to be offered at trial, the operator
of the video equipment shall be a person who is authorized
to administer an oath, and who is not financially
interested in the action and is not a relative or employee
of any party, or party's attorney, unless the parties agree
to waive these requirements. [CCP Sec. 2025(l)(2).]
This bill would delete these additional requirements for
videotape equipment operators when the videotaped
deposition is intended to be offered at trial, and instead
would subject them to the basic competence requirements for
videotape equipment operators set forth in Section
2025(l)(2).
This bill further would provide that a videotape equipment
AB421 (Wayne)
Page 3
operator at a deposition may be, in addition to an employee
of the attorney taking the deposition, an independent
contractor or an attorney.
This bill further would provide that the attorney who
selects the operator of the recording equipment at a
deposition shall make available a copy of the audiotape or
videotape to any party upon request and upon payment by
such party of the cost of reproduction of such copy.
COMMENT
1. Stated need for legislation
The Consumer Attorneys of California (CAOC), sponsor of
the bill, states that the Code of Civil Procedure sets
forth explicit parameters for audiotaped or videotaped
depositions. For example, the CCP provides that the
operator of the equipment must be competent, the setting
must be conducive to the making of an adequate recording,
and the operator may not distort the appearance or
demeanor of the participants. Further, an opposing party
may object to the admission of all or part of a videotape
at trial, and the court may order the tape to be excluded
or edited in accordance with any sustained objections.
AB 421 would retain all existing protections against
misuse of a videotaped deposition, eliminating only the
requirement that, if a videotaped deposition is intended
to be used at trial, the videographer must be "certified"
( i.e ., a deposition officer authorized to administer the
oath, financially uninterested in the litigation, and
neither employed by nor related to the parties or
counsel). CAOC writes:
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. [ ] 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.
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Page 4
2. Defense attorneys' opposition withdrawn
The California Defense Council (CDC) initially opposed
the bill, but withdrew its opposition at the Assembly
Judiciary Committee hearing. The CDC states that it is
satisfied that adequate protections against the misuse of
videotaped testimony exist in the law to address its
concerns.
3. Court reporters' concerns have been addressed
The sponsor worked with the California Court Reporters
Association (CCRA) to address its concerns about the
potential overbreadth of an earlier version of the bill.
As a result, the bill was amended to make clear that,
although it would allow depositions videotaped for trial
use to be taken by a videographer who is not a deposition
officer, and who may be an attorney, attorney's employee,
or independent contractor, all other requirements for use
of videotaped testimony at trial would remain unchanged.
The CCRA does not oppose the bill.
Support: Glendale Bar Association
Opposition: None Known
HISTORY
Source: Consumer Attorneys of California
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Assembly Judiciary Committee 9-0
Assembly Floor 72-0
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