Paul Sherod BAILEY, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF KERN, Respondent; SEARS, ROEBUCK AND CO., a corporation, Real Party in Interest.
This proceeding presents a question of first impression in California: absent a stipulation of the parties, does a trial court have the jurisdiction and, hence, the power, to order the video taping of a deposition? We hold that a trial court has such authority, provided the deposition is also stenographically recorded as required by Code of Civil Procedure section 2019, subdivision (c).
The facts upon which this proceeding is predicated are as follows: Petitioner Bailey, hereinafter ‘plaintiff,’ filed a complaint for personal injuries against real party in interest Sears, Roebuck and Co., a corporation, hereinafter ‘defendant,’ alleging that the defendant negligently designed and constructed a ‘Craftsman’ 8-inch radial arm saw with an 8-inch blade which it sold to plaintiff, that the negligent design proximately caused injuries to plaintiff in that in using the saw in the manner for which it was intended to be used, the saw severed four of the plaintiff's fingers on his right hand. Plaintiff apparently contends that the power turnoff switch on the saw was located in a dangerous position.
The defendant answered the complaint denying the allegations of negligent design and alleging as an affirmative defense that the plaintiff was fully aware of the risk inherent in using the saw, but, nevertheless, used the saw in a negligent manner proximately causing his injuries.
Thereafter, the defendant filed a motion in the trial court to allow the taking of plaintiff's oral deposition as provided in Code of Civil Procedure section 2019 and requested that the deposition include a reenactment by plaintiff of the accident for use at trial. The motion asked that the deposition be adjourned at a time convenient to counsel and the parties to plaintiff's residence where the accident was alleged to have occurred and where the saw is located, that the plaintiff then be required in response to questions to be proposed by counsel to reenact ‘the precise function that plaintiff was performing at the time of his injury’ utilizing the saw on which plaintiff sustained his injuries and using wood stock of the same dimensions he was using at the time of the injury. It was provided, however, that during the course of the reenactment the saw not be activated or connected to any source of electrical power.
The motion further asked that plaintiff's deposition at his residence be stenographically recorded by a certified shorthand reporter.
The motion also asked that the video tape so procured be deemed a part of plaintiff's deposition to be used in all respects as the use of a deposition is allowed by law; that in addition to reading, correcting and signing the stenographically recorded deposition, plaintiff review the video tape within a reasonable time after its completion and record any change or corrections he deemed necessary therein and that such changes or corrections, if any, be attached to the original video tape; and the original video tape together with plaintiff's changes or corrections, if any, be filed with the trial court in the same manner as the stenographically recorded deposition.
The motion asked that the court make such other and further protective orders as it deemed necessary in furtherance of justice and the ascertainment of the truth.
Prior to the filing of defendant's motion to video tape the deposition, defendant had submitted a written interrogatory to plaintiff asking plaintiff to describe in detail his version of the accident including a description of his movements immediately prior to and during the accident. Plaintiff answered the interrogatory.1
Defendant argued in support of his motion below that plaintiff's answer to the interrogatory describing his use of the saw at the time of the accident was not sufficiently clear and explicit to fully convey an adequate description of the facts and circumstances of the injury, that only by a video taped reenactment of plaintiff's use of the saw at the very location where the injury occurred, can a full ascertainment and preservation of the facts be obtained for further discovery, for possible settlement purposes, and for use in evidence at trial.
After carefully considering the arguments of counsel, the trial court granted the motion. It ordered that each party be permitted to obtain as many copies of the video tape as they might request, the expense of which is to be borne by the party requesting same, together with copies of any changes or corrections made in the video tape by the plaintiff.
Plaintiff thereafter petitioned this court for a writ of prohibition to restrain the respondent superior court from ordering the video tape reenactment of the accident. Enforcement of the order granting the motion was stayed by this court, and respondent was ordered to show cause before this court why the relief sought by petitioner should not be granted.
We issued the order to show cause to resolve a question of general importance to the trial courts and to the legal profession. (See Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439; 5 Witkin, Cal.Procedure (2d ed.) Extraordinary Writs, § 125, pp. 3901–3903.)
We are faced solely with a problem of statutory construction.
Plaintiff contends that the trial court went beyond its jurisdiction in granting defendant's motion to video tape the deposition; he asserts that under the statutory scheme governing the taking of depositions, only a deposition stenographically recorded is permitted. Thus, we must examine the applicable statutes.
Code of Civil Procedure section 2004 defines a deposition as a ‘written declaration, under oath, made upon notice . . ..’ (emphasis added). Code of Civil Procedure section 17 defines a ‘writing’ as including only typed and printed material, in addition to handwriting. Code of Civil Procedure section 2019, subdivision (c), provides that the officer before whom the deposition is taken shall put the witness on oath and shall personally or by someone under his direction and in his presence record the testimony of the witness. The statute provides that the testimony shall be recorded stenographically and transcribed unless the parties otherwise agree.
Evidence Code section 250, however, defines a ‘writing’ as ‘. . . handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.’ The law revision commission comment to section 250 states that ‘writing’ is defined very broadly to include all forms of tangible expression, including pictures and sound recordings. (Vol. 29B West's Ann.Cal.Codes, p. 28.)2 In enacting Evidence Code section 250, the Legislature recognized the widespread use of video tape in our society and its relevance to judicial proceedings. (People v. Moran, supra, 39 Cal.App.3d 398, 408, 114 Cal.Rptr. 413; Cal.Rules of Court, rule 250, allowing video taping in court room to perpetuate the record and to permit viewing in adjacent court facility, effective Jan. 1, 1977; see also Kornblum, Videotape in Civil Cases (1972) 24 Hastings L.J. 9, 11; Salomon, The Use of Video Tape Depositions in Complex Litigation (1976) 51 State Bar J. 20, 71.)
The primary and controlling concern in the construction of statutes is the determination of the legislative intent. (Code of Civ.Proc. § 1859; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049; 45 Cal.Jur.2d, Statutes, § 126, p. 634.) Thus, a construction that will promote the legislative purpose will override a construction that would defeat it. (Ibid.) And, once the legislative intent is ascertained, it must be followed ‘even though it may not be consistent with the strict letter of the statute.’ (Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 802, 151 P.2d 505, 508.)
Moreover, all statutes pertaining to the same subject matter, including those in different codes, must be construed together in the light of each other, so as to effect a harmonious relationship, if possible. This is so although the statutes were enacted at different times and although one deals specifically and in greater detail with a particular subject than does the other. (45 Cal.Jur.2d, Statutes, § 121, pp. 629–630.)
Also of particular importance to our interpretive task is the well established policy that the California discovery statutes set forth in the Code of Civil Procedure are to be liberally construed in favor of disclosure unless statutory or public policy considerations clearly prohibit it. (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 118, 130 Cal.Rptr. 257, 550 P.2d 161.) As stated in Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171, 84 Cal.Rptr. 718, 725, 465 P.2d 854, 861:
‘Appellate courts must keep the liberal policies of the discovery statutes equally in mind when reviewing a decision granting discovery. In this context, absent a showing by the petitioner that a substantial interest will be impaired by the discovery, the liberal policies of the discovery rules will generally counsel against overturning the trial court's decision granting discovery.’ (Court's emphasis.)
The definition of a ‘writing’ as contained in Code of Civil Procedure section 17 was enacted in 1872; it reflected the state of technology at that time by providing that the term included both printing and writing. In 1903, the definition was amended to include typewriting (see historical note to § 17, vol. 13, West's Ann.Cal.Code, pp. 38–39), and it has not been changed to this day.
Evidence Code section 250 was enacted in 1965, operative January 1, 1967, as part of the recodification of the law of evidence in California. The Evidence Code expressly provides that its provisions are to be liberally construed with a view to effecting its objects and promoting justice. (Evid.Code § 2.) Of particular relevance to the question before us is section 300 which provides:
‘Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a district court of appeal, superior court, municipal court, or justice court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings.’ (Emphasis added.)
Since the basic purpose of a deposition is to discover and preserve evidence or facts for use at trial and since the depositional process is an integral part of the ‘action’ in the trial court (Crocker v. Conrey (1903) 140 Cal. 213, 216, 73 P. 1006; Witkin, Cal.Evidence, § 947, p. 890), it reasonably can be inferred that the Legislature intended the Evidence Code section 250 definition of a writing to apply to the discovery statutes in the Code of Civil Procedure. By including pictures, sound recordings and ‘other forms of tangible expression’ within the evidentiary definition, the Legislature clearly intended to bring the advances in communication technology within the parameters of the rules governing the discovery and preservation of evidence for use at trial.
Further indication that the Legislature intended to apply Evidence Code section 250 to the dispositional process is the fact that Code of Civil Procedure section 2016, subdivision (d), enacted in 1957, provides that ‘[a]t the trial . . . any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition . . ., in accordance with any one of the following provisions: . . .’ (Emphasis added.) Because the discovery statute expressly encompasses the use of a deposition as evidence at trial, the Evidence Code definition of a writing rather than the Code of Civil Procedure definition logically should control the meaning of a writing for deposition purposes.
A recent decision of our Supreme Court demonstrates the great liberality to be used in interpreting the discovery statutes and supports our holding. In Shepherd v. Superior Court, supra, 17 Cal.3d 107, 130 Cal.Rptr. 257, 550 P.2d 161, a wrongful death action was filed by plaintiffs against a city and certain of its employees including police officers who allegedly inflicted fatal gunshot wounds on the plaintiff's son. Plaintiffs had moved under Code of Civil Procedure section 2031, subdivision (a) which provides for the discovery and production of ‘documents and things' for inspection, copying or photographing, for an order permitting the photographing of the defendant officers in the clothes they wore on the night of the shooting to facilitate the interviewing of witnesses by the plaintiff. The trial court was held to have erred in holding that it lacked authority to order the officers to submit to being photographed and in failing to address itself to the question whether plaintiff had shown ‘good cause’ for her request for such discovery. After stating that the California discovery statutes are to be construed liberally in favor of disclosure unless statutory or public policy considerations such as a claim of privilege clearly prohibit the discovery, the court ruled that the photographing of the face and body of a person came within the provisions of section 2031, subdivision (a). In footnote 3 of the opinion (17 Cal.3d at p. 118, 130 Cal.Rptr. 257, 550 P.2d 161) the court equates the taking of photographs with the taking of X-ray pictures of the body of a person. By analogy it reasonably can be argued that what the defendant is seeking in the present case is merely a succession of still photographs showing a continuous sequence of the plaintiff's motion accompanied by his verbal explanation.
Well reasoned and persuasive out of state authority supports our interpretation of the applicable statutes. In Blumberg v. Dornbusch (1976) 139 N.J.Super. 433, 354 A.2d 351, it is held that under the New Jersey rules of procedure which require that the officer before whom a deposition is taken put the witness on oath and personally or by someone acting under his direction record the testimony of the witness and that the testimony be recorded and transcribed on a typewriter unless the parties agree otherwise, does not prohibit innovative procedures such as the video taping of the testimony of an expert witness, so long as the basic protection provided for all parties at depositions is preserved. (354 A.2d at 353.)
Blumberg was a personal injury action and the plaintiff had appealed from an order of the New Jersey Superior Court denying application for leave to take a video taped deposition of a treating physician in New York for use at trial. The appellate court ruled that the trial court had the authority under the rules of procedure to permit video taping of depositions accompanied by a formal stenographic record; that if objection was raised to exhibiting the video tape to the jury at trial, the trial court could rule on the objection at that time bearing in mind that the test as to the admissibility of a video taped recording as with other recordings is whether the tape is a fair, accurate and undistorted representation of the deposition of the witness.
We believe that the Blumberg reasoning is sound. We are not reviewing an exercise of discretion by the trial court in permitting discovery under the particular circumstances of this case but rather the fundamental power of the trial court to order a video taped recording of a deposition when in its presumed wisdom it deems such a recording essential to the ascertainment and preservation of the truth and the administration of justice.
Plaintiff cites dictum in Voorheis v. Hawthorne-Michaels Co. (1957) 151 Cal.App.2d 688, 692, 312 P.2d 51, for the proposition that a deposition is limited to testimony delivered in a ‘writing’ in its traditional sense. Voorheis was a wrongful death action. The deposition of a key witness, Kirk, was taken by the plaintiffs. The deposition was transcribed and Kirk thereafter died without having read the transcription and without having signed it, as required by Code of Civil Procedure section 2032. At trial, over the defendant's objection, the court permitted plaintiffs to read Kirk's unread and unsubscribed deposition in evidence. The court of appeal reversed a verdict for the plaintiff, holding that it was error to admit an unread and unsubscribed deposition in evidence simply because there was no guarantee of its authenticity. It ruled that the verb ‘must’ as used in Code of Civil Procedure sections 2006 and 2032 relating to the method of taking and preparing depositions was mandatory.
Voorheis is clearly inapposite to the present case. There, the question was not the meaning of the term ‘writing’ but whether the writing had to be reviewed and verified before it could be used at trial. (See also People v. Hjelm (1924) 224 Cal.App.2d 649, 654–655, 37 Cal.Rptr. 36.) No question concerning the propriety of video taping or the nature of the ‘writing’ process was before the court. In the present case, the Voorheis requirements will be met because of the trial court's order that plaintiff be given the opportunity to review and correct the video tape transcript and to sign and subscribe the corrections as part of the official record.
Plaintiff argues that he should not be forced to reenact the events of his injury because of the psychological stress that will result from reliving the injury ‘before the eyes of hostile witnesses and an impersonal machine while knowing that the slightest misstep in his performance may cause him to endanger a just recovery.’ The argument falls, however, in the face of the discretion of the judge at trial to require plaintiff to demonstrate the circumstances leading to his injury using the allegedly defective saw in the courtroom and before the jury (Evid.Code § 140; Witkin, Cal.Evidence, § 647, p. 609; 31 Cal.Jur.3d, Evidence, § 395, pp. 501–503). Except where a privilege not to testify is claimed, a party in a civil action may not properly refuse to testify or furnish facts or information necessary to the presentation of his opponent's case. The trial court has an inherent power to compel a party or witness to testify or furnish such information. (Union Oil Co. v. Reconstruction Oil Co. (1935) 4 Cal.2d 541, 545, 51 P.2d 81; 31 Cal.Jur.3d, Evidence, § 4, pp. 34–35.)
Moreover, plaintiff has the right to seek a protective order from the trial court to prevent any unreasonable annoyance, embarrassment or oppression in connection with the video taping of his deposition (Code of Civ.Proc. § 2019(b)(1)). At any time during the taking of the deposition he may move to terminate the examination if he shows it to be in bad faith or unreasonably to annoy, embarrass or oppress him (Code of Civ.Proc. § 2019, subdivision (d)). Furthermore, subject to the provisions of Code of Civil Procedure section 2021(c), governing relevancy objections where the ground of the objection could have been obviated or removed at the time of the taking of the deposition, objections may be made at trial to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (Code of Civ.Proc. § 2016(e).) This, upon proper objection, the trial court will protect the plaintiff from defendant's improper use of the video tape at trial upon a showing that it is unfair or inaccurate in any material respect.
Finally, we observe that the discovery process is the quintessential tool in the settlement of civil actions short of actual trial. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 415, 15 Cal.Rptr. 119, 364 P.2d 295.) An electronically tape recorded motion picture reproduction of the physical circumstances of an injury accompanied by a verbal description of the actual participants is by far the most advanced and accurate means of ascertaining the facts and, hence, the truth, concerning the events in question. The truth in turn impels a realistic attitude toward settlement of the action without the necessity of a trial.
We hold that the judicial recognition of the propriety of video tape recording of depositions within the framework of the existing discovery statutes in those situations where the trial court finds it will aid in the discovery and preservation of the truth, is a necessary step toward the goal of the efficient administration of justice.
The petition for a writ is denied.
The majority opinion represents a distressing example of unauthorized judicial legislation. This dissent is grounded primarily upon two broad theses: (1) In the absence of a stipulation, video taping of oral depositions is not within the purview of the California statutes pertaining to discovery; and (2) by reason of precedent and sound public policy the Legislature, and not the courts, is peculiarly equipped to establish the minimum standards and guidelines pursuant to which a relatively new and innovative technique, such as video taping, should be permitted to be routinely used in the discovery process.
Initially, it is observed that implicit in the enactment of the Discovery Act of 1957 and prior discovery statutes is the recognition that it is the Legislature and not the courts that has the plenary power to prescribe the procedures and techniques available for use in civil discovery proceedings. In the landmark case of Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266, in defining the perimeters of what the statute authorized, the court confined itself to an interpretation of the legislative intent. It did not presume to arrogate unto itself the authority to go beyond the statutory proscriptions. Thus, at page 383, 15 Cal.Rptr. at page 103, 364 P.2d at page 279, the court said: ‘Although the statutory limitations on discovery must be applied when the facts so warrant, exercise of discretion does not authorize extension thereof beyond the limits expressed by the Legislature; . . .’ (Fn. omitted.)
Turning to the relevant discovery statutes, they plainly, clearly and unambiguously proscribe the use of any technique other than taking a deposition stenographically and transcribing it in written form unless the parties agree otherwise.
Code of Civil Procedure section 2004 defines a deposition as: ‘A deposition is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine.’ Code of Civil Procedure section 17 states that: ‘writing includes printing and typewriting; . . .’ Section 2019, subdivision (c), which pertains to depositions on oral examination, provides in pertinent part: ‘The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise.’
Case law buttresses the concept that only a stenographically reported and written transcription of an oral deposition is authorized. In Voorheis v. Hawthorne-Michaels Co. (1957) 151 Cal.App.2d 688, 692, 312 P.2d 51, 54, the court referring to an oral deposition, stated: ‘The term ‘deposition’ is now confined in meaning to testimony delivered in writing; testimony which in legal contemplation does not exist apart from a writing made or adopted by the witness.' Again, in People v. Hjelm (1964) 224 Cal.App.2d 649, 654–655, 37 Cal.Rptr. 36, 39, the court said: ‘In answering this question, we turn our attention to the nature of a deposition. It is one of the three modes provided by statute by which the testimony of a witness may be taken. By definition it is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine. (Code Civ.Proc., § 2004.) . . . A deposition is more closely akin to an affidavit, both being written declarations under oath. In fact, the only fundamental distinction between the two is that the affidavit is made without notice to the opposite party and without right of cross-examination.’ (Fn. omitted.)
Furthermore, legal commentators have recognized that without statutory amendments the taking of video taped depositions remains outside the purview of oral depositions authorized by the discovery statute.
‘[T]he more restrictive definition contained in the Code of Civil Procedure has not been changed and apparently governs the definition of deposition contained in the same code. Consequently, the right to a videotaped deposition remains limited in California; an amendment is required in order for a party to have a right to videotape a deposition in lieu of making a stenographic record.
‘. . . However, it should be noted that there is no provision for unilateral compulsion of a videotape recording; that is, there is no right to a videotape version of a deposition. Therefore, section 2019 also requires amendment to provide for a statutory right to a videotape transcription of the deposition.’ (Kornblum, Videotape in Civil Cases (1972) 24 Hastings L.J. 9, 17; fns. omitted.)
(See also Salomon, The Use of Video Tape Depositions in Complex Litigation (1976) 51 State Bar J. 20, 72.)
The legislative intent to restrict oral depositions to written transcriptions of stenographically reported proceedings could scarcely be clearer. In the face of such expressions it is not the courts' province to insert something not contained in the statute. ‘In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; . . .’ (Code of Civ.Proc., § 1858; see Estate of McDill (1975) 14 Cal.3d 831, 838, 122 Cal.Rptr. 754, 537 P.2d 874.) Where the meaning of a statute is plain, its language clear and unambiguous and there is no uncertainty as to legislative intent, there is no need for construction and the court should not indulge in it, whatever may be thought of the wisdom, expediency or policy of the act. (Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344, 353–354, 139 P.2d 908; First Congreg. Church v. County of L. A. (1937) 9 Cal.2d 591, 594, 71 P.2d 1106.)
The majority attempts to hurdle this insurmountable barrier by arguing that the definition of a ‘writing’ contained in Evidence Code section 250 is engrafted into the discovery statute contained in the Code of Civil Procedure. This feat of alchemy is accomplished by citing 45 Cal.Jur.2d, Statutes, § 121, pp. 629–630, for the principle that ‘all statutes pertaining to the same subject matter, including those in different codes, must be construed together in the light of each other, so as to effect a harmonious relationship, if possible.’ There are a number of flaws in this approach. The first and most obvious is that the two codes do not deal with the same subject matter. The evidence admissible at trial is defined in the Evidence Code, including section 250, and that code does not deal with the subject matter and problems of what may be discovered before trial. More importantly, Evidence Code section 250 does not deal with the procedures, techniques and methods by which the evidence discovered may be preserved. Thus, on its face the principle of interpretation relied upon by the majority does not apply.
Even if the two definitions could be construed to deal with the same subject matter, the definitions contained in the Evidence Code, including Evidence Code section 250, apply to that code only. Evidence Code section 100 makes this clear. That section provides: ‘Unless the provision or context otherwise requires, these definitions govern the construction of this code.’ Consequently, the court is not authorized to lift the definition of a writing from the Evidence Code and apply it to the discovery provisions in the Code of Civil Procedure.
Moreover, even absent the enactment of Evidence Code section 100, under general principles of construction the specific provisions relating to discovery in the Code of Civil Procedure prevail over a more general provision contained elsewhere. (See Code Civ.Proc., § 1859; In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593: Div. of Labor Law Enforcement v. Moroney (1946) 28 Cal.2d 344, 346, 170 P.2d 3.)
Section 250 of the Evidence Code, together with the balance of that code, was adopted by the Legislature in 1965. Code of Civil Procedure sections 17, 2004 and 2019, subdivision (c), preexisted the enactment of the Evidence Code and were not changed then nor have they been changed by the Legislature since, notwithstanding the interpretation given to those sections in Voorheis v. Hawthorne-Michaels Co., supra, 151 Cal.App.2d 668, 312 P.2d 51, and People v. Hjelm, supra, 224 Cal.App.2d 649, 37 Cal.Rptr. 36, and notwithstanding the numerous times the Code of Civil Procedure, the Discovery Act of 1957 and the Evidence Code have been amended since those decisions were rendered. From this failure to act on the part of the Legislature it may be presumed that it did not intend that the Evidence Code definition of a writing should apply to oral depositions. As the Supreme Court said in Estate of McDill, supra:
‘It is assumed that the Legislature has in mind existing laws when it passes a statute. [Citations.] ‘The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.’ [Citations.]' (14 Cal.3d at pp. 837–838, 122 Cal.Rptr. at p. 758, 537 P.2d at p. 378.)
“It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them. [Citations.]' [Citations.]' (14 Cal.3d at p. 839, 122 Cal.Rptr. at p. 758, 537 P.2d at p. 378.)
The same conclusion may be derived from the relationship between the Discovery Act of 1957 and discovery in the federal courts as authorized in the Federal Rules of Civil Procedure. The Discovery Act of 1957 was largely patterned after the Federal Rules of Civil Procedure, and the construction of the federal rules is of vital importance in construing its sections. (Gorman Rupp Industries, Inc. v. Superior Court (1971) 20 Cal.App.3d 28, 30, 97 Cal.Rptr. 377); Louisell and Wally, Modern California Discovery (2d ed. 1972) § 1.01, p. 2; Table of Corresponding Federal Rules for Depositions and Discovery, 22 West's Ann.Code of Civ.Proc. (1976 pocket supp.) p. 33.
Federal Rules of Civil Procedure rule 30(b)(4) was adopted in 1970, expressly authorizing video taped depositions. Before the adoption of that amendment the federal rules did not expressly authorize video taped depositions. Rule 30(c) provided, as does Code of Civil Procedure section 2019, subdivision (c), that ‘. . . the testimony shall be taken stenographically and transcribed unless the parties agree otherwise . . ..’ In holding the rule as it then existed did not authorize video taped depositions, the court in United States Steel Corp. v. United States (S.D.N.Y.1968) 43 F.R.D. 447, 451, stated:
‘There is no provision in Rule 30(c) for use of a tape recorder or video tape recorder. The deposition must be recorded stenographically and transcribed unless the parties agree otherwise. [Citations.]
‘. . .
‘. . . This court has no power to change the rules. Neither are any proposals with respect to proposed amendments to the Rules of Civil Procedure pertinent. The present Rules control presently-taken depositions. Actually nothing in the proposed rules authorizes the use of a video tape recorder.
‘Unless the statutes so provide or the parties consent, there is no authorization for the use of a video tape recorder either at trial or at a deposition in the federal courts.’
Next the majority relies on a well-established rule of liberal construction of discovery statutes to support its decision. That reliance is misplaced. The rule is succinctly restated in Shepherd v. Superior Court (1976) 17 Cal.3d 107, 118, 130 Cal.Rptr. 257, 262, 550 P.2d 161, 166; ‘As we have previously pointed out, California discovery statutes are to be construed liberally in favor of disclosure unless statutory or public policy considerations clearly prohibit it.’ Thus, the rule of liberal interpretation by its terms is inapplicable where the statute, as here, clearly prohibits what is sought to be accomplished. Moreover, as I have heretofore pointed out, a review of the leading cases in this area, including Greyhound Corp. v. Superior Court, supra, demonstrates that the rule of liberal construction does not authorize the court to go beyond the statutory limitations on discovery. Matters such as whether a deposition should be in writing or be permitted to be video taped are within the plenary power of the Legislature.
The holdings in Shepherd v. Superior Court, supra, and People v. Moran (1974) 39 Cal.App.3d 398, 114 Cal.Rptr. 413 lend little support to the majority's position. Neither Shepherd nor Moran involved the taking of a deposition in pretrial discovery proceedings. The Shepherd case related solely to the discovery of ‘objects and tangible things' under Code of Civil Procedure section 2031 and logically and correctly held that photographs were within that definition. It did not involve the interpretation of Code of Civil Procedure sections 17, 2004 and 2019, subdivision (c).
Moran quite properly applied the definition of a writing contained in Evidence Code section 250 to the issue of whether video taped testimony of a witness at the preliminary hearing was admissible at trial, the witness having died before the video tape was used. Under the analysis I have heretofore made, that issue is totally separate from and has no bearing upon what techniques or procedures may be used to discover evidence prior to trial and does not involve the strictures of Code of Civil Procedure sections 17, 2004 and 2019, subdivision (c).
One out-of-state case (Blumberg v. Dornbusch (1976) 139 N.J.Super. 433, 354 A.2d 351) is also cited to support the position of the majority. Out-of-state cases interpreting particular statutory provisions in the state where the decision is rendered which are not identical to the statutory provisions in this state and in which state the entire scope of discovery may be different than in this state, provide unpersuasive guidance to a California court seeking to interpret California statutes. The simple fact is that the barriers of Code of Civil Procedure sections 17, 2004 and 2019, subdivision (c), cannot be breached by the holding of an out-of-state case dealing with a different statutory structure.
Turning to the second major thesis of this dissent, it may be readily conceded that, assuming the proper safeguards are taken against incorrectly depicting the persons and events shown, and against inaccuracies, distortion in image and movements, omission of content, incompetent technicians and inadequate equipment, the use of video taped testimony would offer advantages not available through written transcriptions of stenographically reported depositions. (See People v. Moran, supra, 39 Cal.App.3d 398, 408–411, 114 Cal.Rptr. 413; Salomon, The Use of Video Tape Depositions in Complex Litigation (1976) 51 State Bar J. 20, 72; Kornblum, Videotape in Civil Cases (1972) 24 Hastings L.J. 9, 10–14; Marlboro Products Corp. v. North American Phillips Corp. (D.C.1972) 55 F.R.D. 487.) However, the necessary safeguards and guidelines should be adopted in advance of authorizing the routine use of this relatively new technology. Until such safeguards and guidelines are adopted neither the litigants nor the court can rely upon the use of video taped depositions with confidence. The clear necessity for the adoption of such guidelines and safeguards is recognized by the commentators. (Salomon, The Use of Video Tape Depositions in Complex Litigation (1976) 51 State Bar J. 20, 72–75; Kornblum, Videotape in Civil Cases (1972) 24 Hastings L.J. 9, 23–26, 29–30, 33–35.)
A number of aspects of this new technology should be governed by appropriate standards. A few of the matters requiring investigation and the enactment of suitable regulations that have been mentioned are: the development of minimum standards pertaining to the qualifications and responsibility of the television technicians who are to operate the cameras and for the audio operators used in video taping depositions; the development of a type of video tape camera and microphone equipment required for accurate recordation; the unmber of cameras and microphones necessary to effectively record what takes place; whether a portion of the testimony of a witness should be authorized, and whether the faces of both the interrogating counsel and the witness should be visible; whether a stenographic record should be required in addition to the video tape. There also exists a myriad of problems dealing with cost of the deposition; procurement of copies; provisions for reviewing the video tape by the witness; methods of accomplishing revisions and corrections; whether the video taping is restricted to certain types of actions and to certain witnesses; provisions for the certification of the correctness of the tapes and storage of the tapes.
The mere listing of these problems makes manifest that the legislative body, as distinguished from the courts, is the proper body to make the initial policy decision of whether video taped depositions are to be allowed; and if they are to be allowed, to develop the answers to the aforementioned problems and to establish appropriate standards and guidelines for video tape use. Unlike the courts, the Legislature, through its committee structure and investigative procedures available to it, can seek out various viewpoints and draw upon the advice and assistance of all segments of society and interested parties, including the legal profession, the judiciary and experts in the video tape industry in arriving at appropriate choices, compromises and decisions.
For the foregoing reasons I would issue the writ in this case.
1. Plaintiff's answer to interrogatory No. 66 was as follows: ‘I was out-ripping a 10-inch bookshelf composed of pressed wood about 3/4 of an inch thick. The saw dust shoot and anti-kickback was positioned and the blade was set. I had pushed the shelf through the blade with a push board. As I started to reach around the saw to turn off the switch, my right hand brushed against the exposed blade cutting my fingers. The switch in the crosscut position is located on the front of the saw but when the saw is turned 90 degrees to rip, the switch turns with it and is then positioned on the opposite side of the saw from where you have to stand to do the work. The blade was a combination, about 1/16th inch thick and the blade was lowered for a clean cut for material going through on the cutting table.’
2. ‘Video tape recording differs from the ordinary methods of recording images in permanent form in that the image is recorded electronically rather than photographically. Instead of relying on light rays to convey an invisible image, which is then revealed through a chemical process as does standard photography, video tape employs a process whereby the image is sensed by the camera and changed into electrical impulses which can be recorded on the tape. Thus, as in sound recording, the tape used in video recording does not have to be processed and thus can be replayed instantly. Moreover, video tape can also be used to provide either still or motion pictures. (2 Scott, Photographic Evidence: Preparation and Presentation (2d ed. 1974 Supp.) § 714, pp. 9–11.)’ (Emphasis added.) (People v. Moran (1974) 39 Cal.App.3d 398 at 407, 114 Cal.Rptr. at 418.)
FRANSON, Associate Justice.
GARGANO, J., concurs.