April 9, 2001
The Honorable Dede Alpert
Chair
Senate Appropriations Committee
State Capitol, Room 5050
Sacramento, CA 95814
The Honorable Carole Migden
Chair
Assembly Appropriations Committee
State Capitol, Room 2114
Sacramento, CA 95814
Subject: SB 11 (Escutia) and AB 36 (Steinberg)
Dear Senator Alpert and Assemblymember Migden:
Testimony on SB 11 in the Senate Judiciary Committee on April 3 made it clear beyond a doubt that this bill (and its Assembly counterpart) have been erroneously keyed non-fiscal.
These bills would establish a legal presumption of public access to information gathered in the civil pre-trial discovery process or included in a private settlement but never admitted in court to adjudicate a case. The presumption could be overcome for selected information proven in court to be a trade secret, constitutionally privileged, or in an "overriding interest" privacy category.
Under astute, persistent questioning by Senator Byron Sher, the bill's sponsor admitted SB 11 would require that every request to protect deposition or settlement privacy would require a judge's review of the material at issue and a ruling applying a complex test to determine whether confidentiality is permitted. This would be the case, Senator Sher's questioning served to emphasize, no matter whether all parties agreed that confidentiality was entirely appropriate.
In the past Legislative Session, a version (SB 1254 - Schiff) of this proposal which was more candid about the need for a judge's document-by-document review was keyed fiscal. The Judicial Council estimated that SB 1254 would cost the state an additional $460,000 a year - a low figure based on an unrealistic assumption that only one extra hour per case would be spent by court personnel due to SB 1254's provisions. It is clear that SB 11 would have no less of a fiscal impact than SB 1254.
An author's amendment in committee to SB 11 states that information presumed public is that which is "evidence" of liability under the bill's litigation categories. Presumably such a determination would be made by a judge, though under what definition of evidence is not explained. Because there is no guidance given in the bill about either the definition of evidence or when such a determination would be made, it is likely the courts will be burdened with "mini-trials "to determine whether a particular document or group of documents constitutes "evidence of" a product defect, financial fraud, environmental hazard, or unfair insurance practice. All of this dictates significant court time and a significant fiscal impact on the courts.
Senate Bill 11 and AB 36 also raise the question of whether the public access presumption would mean that non-parties whose information becomes part of discovery would have to file a separate legal action for purpose of asserting a confidentiality exception for portions of their depositions or documents they desire to maintain private. This will be added court workload.
The irreversible effects of SB 11 and AB 36 disclosure would understandably result in parties coming to the court to seek privacy rulings in advance of complying with discovery requests.
All this adds up to a significant increase in court workload. The two current bills apply to more categories of cases than their predecessor. All categories of cases covered by the bills often involve voluminous discovery.
At a time when forecasts of a bountiful General Fund surplus have unfortunately plummeted, bills like SB 11 and AB 36 with their potentially significant cost impact must undergo an added measure of fiscal scrutiny.
We urge the Legislature to undertake that task.
Sincerely,
John H. Sullivan
President
cc: Senator Martha Escutia
Assemblyman Darrel Steinberg
Chief Justice Ron George, Chair, Judicial Council
Tal Finney, Office of Governor Gray Davis
Ann Richardson, Office of Governor Gray Davis
Tim Gage, Director of Finance
Bion M. Gregory, Legislative Counsel
Elizabeth G. Hill, Legislative Analyst
Judge William C. Harrison, President, California Judges Association
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