BILL ANALYSIS
AB 421
Page 1
GOVERNOR'S VETO
AB 421 (Wayne)
As Amended August 22, 2002
2/3 vote
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|ASSEMBLY: |72-0 |(January 30, |SENATE: |21-12|(August 29, |
| | |2002) | | |2002) |
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ASSEMBLY: 58-19 (August 30, 2002)
Original Committee Reference: JUD .
SUMMARY : Deletes certain procedural requirements pertaining to
videotaped deposition testimony to be used at trial.
Specifically, this bill :
1)Permits an attorney, an independent contractor of an attorney
or an employee 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 available to any party upon request and upon payment
by that party of the cost of reproduction.
The Senate amendments add language clarifying that the attorney
may operate the recording equipment him or herself and that no
employee may also be the deposition officer and add chaptering
out amendments to avoid conflict with AB 2842 (Harman).
AB 421
Page 2
AS PASSED BY THE ASSEMBLY , this bill was substantially the same,
but did not specifically allow the attorney for one of the
parties to operate the recording equipment.
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
videotaped, and the code sets forth the parameters for
taping the deposition. ? 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. ? 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.
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. 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.
AB 421
Page 3
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.
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, and permits an attorney, an employee of an attorney or
an independent contractor to make the videotape.
Safeguards in provisions of 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. 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
AB 421
Page 4
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.
GOVERNOR'S VETO MESSAGE :
This bill would delete requirements that the operator
of recording equipment for the deposition of an expert
witness may not have a financial interest in the
action or be related to or employed by an attorney of
any party, thus allowing an attorney or his or her
employee or relative, to be the operator of the video
equipment.
Although there is speculation that this bill would
save money for California courts, I am not convinced
that it ensures a neutral, unbiased video recording of
expert witness depositions. There are many ways to
manipulate a video recording to reflect the witness in
a negative or unfavorable manner, and I believe that
removing the requirement for a certified videographer
would increase the chances of fraudulent video
recordings.
Analysis Prepared by : Kathy Sher / JUD. / (916) 319-2334
FN: 0008032