Commencing on January 1, 2017, the California State Legislature implemented several new laws that directly affect California civil litigators. The following is an overview of the significant statutory changes.
Experts need to produce their files at least three business days before their deposition.
A party seeking to take the deposition of a retained expert may specify in a deposition notice the materials or category of materials to be produced by the deponent at his or her deposition. Before the addition of California Code of Civil Procedure Section 2034.415, the expert had no obligation to produce these materials in advance of the date specified by his or deposition notice. Any attorney that has taken an expert deposition has gone through the experience of being handed several banker’s boxes or a USB flash drive containing the materials specified in the deposition notice, immediately before the deposition is set to begin. Many times this information is voluminous and unorganized. As a result, the deposing attorney may have to spend additional time sifting through the expert’s files to familiarize himself or herself with these materials, before he or she can start asking any substantive questions. In an effort to encourage more efficiency with expert depositions, and to reduce the costs for all parties, Section 2034.415 has been added to the California Code of Civil Procedure. This code section now requires that a retained expert shall produce any materials or category of materials, including electronically stored information, that are called for by a deposition notice no later than three business days before his or her deposition .
Practice Tip: Because the timing requires “business days”, if you can avoid setting a deposition on a Thursday or Friday, you can get two extra days with the documents requested in the deposition notice.
No more anonymity for perpetrators of sexual assault in settlement agreements.
Settlement agreements are useful tools in civil litigation. Many times these agreements contain specific requests from at least one of the parties that helps assist in the timely resolution of a claim. An example of such a request is to have the settlement payment contingent on certain facts or parties being kept confidential. Until recently, this request could be made in virtually all California civil cases. Now, as a matter of public policy, the California State Legislature has decided that certain confidentiality provisions are not always appropriate when it involves matters of public concern – e.g., sexual assaults on particularly vulnerable victims. For this reason, sexual offense perpetrators are no longer able to seek anonymity within the confidentiality provisions of settlement agreements. California Code of Civil Procedure Section 1002 voids any provision in a settlement agreement that prevents the disclosure of the facts underlying a civil claim for an act that may be prosecuted as a felony sex offense. This includes an act of childhood sexual abuse, sexual exploitation of a minor, or an act of sexual assault against an elder or dependent adult. Even the courts are barred from signing an order that restricts disclosure of the information specified in Section 1002 (a). However, Section 1002 does not preclude the parties from making an agreement to prevent a defendant from disclosing personal identifying information about the victim. Likewise, it does not prevent a nondisclosure agreement regarding the settlement amount.
Practice Tip: An attorney representing a sexual offense perpetrator in a civil case should think twice before demanding such a confidentiality provision as they can face disciplinary action and investigation from the California State Bar.
California employees can no longer be compelled to litigate disputes outside of California.
California Labor Code, Section 925, has a direct impact on employment contracts for employees who live and work primarily in California. Generally speaking, prior to Section 925, employers could add choice of law and choice of venue clauses to their employment contracts. This new California Labor Code provision prohibits the use of contract provisions that apply another state’s law or require adjudication of disputes in another state as a condition of the employment for an individual who primarily resides and works in California. This includes both litigation and arbitration proceedings. Section 925 applies to contracts entered into, modified, or extended on or after January 1, 2017. If an employee did not use an attorney to negotiate his or her contract, he or she may void a contract provision that violates this law.
Practice Tip: Employers should not ignore this new law as it specifically allows for the recovery of reasonable attorney’s fees and injunctive relief for those employees having to enforce their rights under Section 925.
Additional steps are now required to make electronically stored information ‘accessible’.
A deponent asked to produce electronically stored information (ESI) by subpoena or deposition notice will now have to give the requesting party direct access to this electronically stored information if it is password protected or otherwise inaccessible. California Code of Civil Procedure Section 2025.280 has been amended to add subsection (c), which states this electronically stored information will have to be made accessible by either: (1) providing a means of gaining direct access to this password protected information; or (2) providing a translation of the password protected information into a reasonably useable form.
Practice Tip: Although the statute does not expressly state what is meant by “reasonably usable form”, this presumably means the ESI must be produced in a form that a party can access and read. Depending on the case, this may call for a paper printout or it may call for the production of an electronically readable and searchable file using commonly available programs – e.g., Microsoft Access or Excel.