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AB-2433 Civil discovery: subpoenas.(2007-2008)

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AB2433:v93#DOCUMENT

Assembly Bill No. 2433
CHAPTER 742

An act to amend Sections 1987.1 and 1987.2 of the Code of Civil Procedure, relating to civil discovery.

[ Approved by Governor  September 30, 2008. Filed with Secretary of State  September 30, 2008. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2433, Krekorian. Civil discovery: subpoenas.
Existing law accords certain rights and protections to a consumer whose personal records are subject to a subpoena that is directed to a witness with whom the consumer has transacted business or who has acted as agent or fiduciary of the consumer. Existing law also accords certain rights and protections to an employee whose employment records are subject to a subpoena that is directed to his or her employer or a labor organization that has represented the employee. Under existing law, those rights and protections include the power of the court to make an order quashing, modifying, or directing compliance with the subpoena, and to make any other order appropriate to protect the consumer or the employee from unreasonable or oppressive demands. The court may award reasonable expenses incurred in making or opposing the motion for the order, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith, without substantial justification, or that any requirement of the subpoena was oppressive.
This bill would authorize the court to make these orders to protect a person whose personally identifying information, as defined, is sought. The court would be authorized under the above provisions to award reasonable expenses incurred in making or opposing the motion for the order, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith, without substantial justification, or that any requirement of the subpoena was oppressive. However, the court would be required to award reasonable expenses, including reasonable attorney’s fees, incurred in making the motion for an order to quash or modify a subpoena for personally identifying information from a court of this state for use in an action pending in another state, territory, or district of the United States, or in a foreign nation, if the moving party prevails and that subpoena has been served on any Internet service provider, or on the provider of any other interactive computer service, and if the underlying action arises from the moving party’s exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1987.1 of the Code of Civil Procedure is amended to read:

1987.1.
 (a) If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.
(b) The following persons may make a motion pursuant to subdivision (a):
(1) A party.
(2) A witness.
(3) A consumer described in Section 1985.3.
(4) An employee described in Section 1985.6.
(5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.
(c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6.

SEC. 2.

 Section 1987.2 of the Code of Civil Procedure is amended to read:

1987.2.
 (a) Except as specified in subdivision (b), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.
(b) If a motion is filed under Section 1987.1 for an order to quash or modify a subpoena from a court of this state for personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, for use in an action pending in another state, territory, or district of the United States, or in a foreign nation, and that subpoena has been served on any Internet service provider, or on the provider of any other interactive computer service, as defined in Section 230(f)(2) of Title 47 of the United States Code, if the moving party prevails, and if the underlying action arises from the moving party’s exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action, the court shall award the amount of the reasonable expenses incurred in making the motion, including reasonable attorney’s fees.