April 26, 2016
Paul K. Schrieffer
P. K. SCHRIEFFER LLP
Reflecting the ever increasing importance of ESI in litigated matters, the California Legislature, as of January 1, 2016, via Assembly Bill 1197, amended CCP section 2025.220 adding new language in (a)(7) and (8).
CCP section 2025.220(a)(7) requires that a party serving a deposition notice shall now state the form in which any electronically stored information (ESI) is to be produced, if a particular form is desired. Additionally, under CCP section 2025.220(a)(8)(A), the noticing party must expressly disclose the existence of a contract, if any is known to the noticing party, between the noticing party or a third party who is financing all or part of the action and either of the following for any service beyond the noticed deposition: (i) the deposition officer; (ii) the entity providing the services of the deposition officer. CCP section 2025.220(a)(8)(B) requires the noticing party to disclose if the attorney or law firm noticing the deposition was directed to use a particular court reporter or entity to provide the deposition services (e.g., an insurance company). The statute is, however, silent on the consequences of a failure to disclose
Under the August 26, 2015 Assembly Floor Analysis, the purpose of amending this section is to allow opposing parties to perform any necessary due diligence in order to determine if the chosen court reporter will be unbiased and will fairly and accurately report the deposition proceeding. There has been a concern “whether the actual court reporters can remain neutral when they are involved in these types of contractual relationships.” Court reporters have generally been considered neutral and impartial court officers in legal matters, however, the assembly report states that “more frequently the question is being raised by plaintiffs nationwide, whether the court reporter or transcript that is being produced by court reporting companies with relationships may still be granted the assumption or reliability.”
What is still not clear is whether the word “party” includes the law firm representing the party and whether the law firm must disclose any arrangements, oral or written, with the court reporting service where the firm is receiving discounted rates.
Shawn Kennedy, a litigator who is CEO of Edepoze, wrote in an article entitled “That Deposition Notice Could Get you Punched in the Face,” published by “Lawyer Stuff” online magazine, that caution may require a law firm or lawyer for a party to disclose the lawyer’s or law firm’s agreement with a court reporting agency that provides discounts or other services not available or provided to the adverse lawyer or law firm. Mr. Kennedy cited the Senate Judiciary Committee report of July 15, 2015, which stated the statute seeks to address concerns relating to the impartiality of a deposition officer who has an ongoing contractual relationship with a particular attorney or law firm and not merely the party that pays for the court reporter. However, the language in the statute refers only to a “party” having the requirement, not the party’s lawyer or law firm.
The second question of interpretation is what kind of contract must be disclosed. A contract for “any service beyond the noticed deposition,” for example, may also include repository services provided to the court reporting agency. As is well known in contract law in California, contracts may be written, oral or even implied by fact or law under a review of circumstances. However, the statute does not provide guidance as to whether that general rule regarding contracts applies and whether only a written agreement triggers the disclosure requirement.
We await judicial guidance in the form of rulings and opinions as to the precise scope of meaning for these new statutes. We anticipate that, in a large scale case with prominent and wealthy law firms involved, we will see arguments made as to the scope of meaning of the term “party” and “contract” in the new statute. We also expect case law to develop ESI procedures based upon deposition notices.