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Eugene Brodsky is tired of getting ripped off. The San Francisco maritime lawyer says he’s been keelhauled for years by large deposition reporting firms that give discounts to insurance companies at the expense of plaintiffs. He estimates that in a typical case, his clients are squeezed for an extra few thousand dollars. Now he wants to do something about it. But other plaintiff lawyers and anti-contracting groups have two words for him: good luck. For the past 15 years, a lineup of passionate advocates has picked at this bone, only to drop away once they experience the resistance to any ban on contracts. Now they say their prospects are bleaker than ever. Even as copy costs rise, Gov. Arnold Schwarzenegger is trying to eliminate the state board that oversees reporters. “I think it’s outrageous. � People taking depositions should feel there’s not prejudice on one side or the other. That’s why we need the independent board,” said Stephanie Grossman, a Palo Alto deposition reporter who considered herself “the queen of anti-contracting at one time.” That was 10 years ago. Since then, lawsuits and legislation pushed by the California Court Reporters Board have failed to stop insurance companies from retaining large deposition reporting outfits that do their insurance defense work at a discount. Plaintiff lawyers have no choice but to purchase copies from reporters hired by the defense side. “The attorney that notices the deposition, by custom and practice, is the one who hires the court reporter,” said Brodsky, noting that he hires his own reporter when he deposes an adverse witness. “Except I hire someone cheap.” Plaintiff attorneys and local reporters say that defense-side discounts are offset by overcharging plaintiffs for copies. “The industry as a whole has been dealing with this since the early or mid-’90s, when insurance companies went to larger firms and said, ‘If you contract with us, we’ll give you all our business,’” said Julie Peak, chair of the state board. Since then, she said, insurance companies have lowered rates, leading reporting companies to raise copy fees charged to plaintiffs. “They had to make up the differential somewhere,” she said. Just how much more plaintiff firms pay is not clear, since officials with insurers and large reporting firms would not discuss pricing. John Kozero, a spokesman for Fireman’s Fund, acknowledged only that the Novato-based insurer has contracts with two national court reporting firms but would not discuss details. Similarly, Michael Jarvis, GC for the country’s largest reporting firm, Esquire Deposition Services, demurred, saying, “We consider that proprietary information.” Brodsky and the California Deposition Reporters Association say the rising difference in copy prices between national and local firms — a gap often more than $1 per page — indicates the extent of the problem. Brodsky — a partner with Brodsky, Baskin & Miller — said rates charged by out-of-town reporters have been rising for about two years. According to several invoices Brodsky provided, Esquire and deposition reporting firm Ben Hyatt charged $2.75 and $3.30 per page, respectively. Most local firms charge about $2 per page for copies, said Peak. In May, Brodsky protested high transcript fees and sought intervention by the reporters board. But the board said it had no legal basis to act. Esquire’s Jarvis would not confirm that his firm signs nationwide contracts with insurers, a practice that he noted is outlawed or restricted in many states. But he said Esquire enters into large-scale agreements with insurance companies, just as other vendors would. S.F. insurance specialist Robert Schiff said insurers contract with most vendors. “The intent is to try to control litigation costs, which to some extent affect the cost of premiums,” said the partner at Haight Brown & Bonesteel. Jarvis dismisses local firms’ objections to the practice as anticompetitive. “It’s about reporters and/or smaller reporting firms attempting to pass legislation that prohibits fair competition,” he said. Local reporters protest that contracting is a direct hit to their business. “It’s the bane of my existence,” said Holly Moose, a CDRA director based in Sausalito. “I can’t compete.” But reporters say the issue transcends pricing. “Contracting directly with a party to an action can raise the question of whether the other side is getting equal treatment,” said Marshall Jorpeland, spokesman for the National Court Reporters Association. Pricing and ethics concerns have boiled over repeatedly since the 1980s, and the NCRA — along with the spinoff group Citizens for Impartial Justice — have successfully lobbied 29 states to limit the practice. A series of lawsuits in 1994 led by a Sacramento man — the husband of a deposition reporter — failed to convince courts that contracts are an unfair business practice, which he calls “underhanded, dirty and corrupt.” The issue was revisited five years later by the state Legislature, but a 1999 bill to end contracting failed. The only recourse for complaints about fees, they say, is the state board, which the California Performance Review — Schwarzenegger’s blueprint for government overhaul — suggests eliminating. Its regulatory functions would be folded into a new Department of Commerce and Consumer Protection. Grossman and Brodsky say this would gut an oversight system that is already inadequate and currently surviving on a budget of about $1 million a year, down more than 50 percent over the past three years. Grossman also points out that cutting the board would save the state no money since it’s entirely funded by reporter licensing fees. But Performance Review spokesman Robert Martinez says the board does not necessarily provide effective regulation. “A lot of times, boards act more like an entity that sustains a particular profession,” he said. The board’s fate, he added, should be clear by mid-January. In the meantime, some big plaintiff firms are taking a cue from defenders and pursuing their own contracts. A staffer at Lieff Cabraser Heimann & Bernstein said the firm contracts with Esquire, while a partner with Lerach Coughlin Stoia Geller Rudman & Robbins said the firm also signs nationwide deals for reporters handling their own deposition work. When told that his plaintiff peers had obtained contracts, Brodsky shot back: “That doesn’t make it right, does it?”

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