SACRAMENTO - John Doherty, president of the Civil Justice Association of California, isn’t willing to leave anything to chance over a bill in the State Assembly that would expand pre-litigation subpoena power.
Assembly Bill 814 remains on the Senate floor and is still eligible to move if sponsors can find enough votes to support it before the end of the end of session Aug. 31.
“As the group primarily opposing 814, our concern over it is still high and we remain prepared to act against it,” Doherty told the Northern California Record. "With all the damage it could do and the imbalance it would create, our job is to prevent that from happening.”
John Doherty
Introduced by Assemblymember Richard Bloom (D-Santa Monica), AB 814 would extend the power of pre-litigation subpoena to city attorneys if they believe there was a violation of the state’s Unfair Competition Law in cities with populations topping 750,000. Presently, that power is only held by the state attorney general and county district attorneys. Several regions would be affected if AB 814 becomes law, including San Diego, San Jose, Los Angeles, San Francisco and San Francisco County.
Though relatively small in number, Doherty sees the expansion of power as potentially being a major problem for many by virtue of the breadth and scope the government would be allowed in being able to issue subpoenas prior to actually filing an action.
“We are concerned because the bill would allow law enforcement to file pre-subpoenas and send out discovery demands for anyone under suspicion,” Doherty said. “They would have to meet very few requirements of why the information is needed. Even in a civil suit, you have the context of what the information is for. To allow things to be done this way raises major, major questions about due process.”
Doherty added that allowing the bill to become law would also expose state business owners to unreasonable demands for information at any time in an investigation.
“The bill has no real limits,” he added. “Small business owners could be forced to produce years of documents and other business owners could be required to spend millions of dollars. This doesn’t limit the action to just the person under suspicion and can be issued to anyone involved. And once issued, you have the full weight of city attorney’s office demanding the documents.”
Meanwhile, Bloom said if the bill moves forward it won’t be in its current form, though he adds that development isn’t entirely based on all the criticisms voiced against the legislation.
“I will be amending substantively different language into it having to do with the acquisition of the Sylmar armory by the county of L.A.,” he told The Record.
Bloom points to the recent Wells Fargo case as evidence of why the law needs to be on the books in some form and fashion.
In that instance, the Los Angeles Times reported bank officials agreed to settle a class-action suit in March 2017 for $110 million after a 16-month investigation found bank staffers regularly engaged in a practice of opening millions of accounts that were never authorized by customers.
“AB 814 would have allowed city attorneys to gather evidence more quickly and investigate allegations of wrongdoing more efficiently,” Bloom said. “This streamlined investigative process would have reduced the length of time that consumers were exposed to risk. The Los Angeles City Attorney’s recent investigation, and eventually successful suit against Wells Fargo illustrates the need for these additional powers. When the LA City Attorney launched its investigation into Wells Fargo, it took 16 months to gather sufficient evidence to file suit, a time frame that would have undoubtedly been shorter had the City Attorney had pre-litigation subpoena power.”
Still, Doherty and other organizations, like the California Chamber of Commerce and the Civil Justice Association of California, argue more harm than good would come from the bill as currently proposed.
“Again, there’s that imbalance as it relates to due process,” he said. “It’s as if we would be picking and choosing who would be entitled to it based on issues that have nothing to do with being assured that right.”
In the bill’s infancy, Doherty and others pushed for measures that add due process protections such as allowing defendants to file motions to quash, the ability to hear what they have been accused of as part of the process and the right to ask a third party to verify the suspicions of the attorneys.