California Passes Electronic Discovery Act

On June 29, 2009, California enacted its Electronic Discovery Act.  The legislation largely follows the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, but differs somewhat in its treatment of inaccessible information and in its safe harbor provisions.

The SmartRules Guides include all new and amended California Code of Civil Procedure provisions.  To see the new California Discovery Act provisions in action please visit the following California SmartRules Guides:  Request for Production, Response to Request for Production, Motion to Compel Discovery, Motion for Discovery Sanctions, Motion for Protective Order

DISCOVERY OF ESI

The new California Code of Civil Procedure provisions expressly permit discovery of electronically stored information. See CCP §2031.010(a), (e).

DISCOVERY OF ‘INACCESSIBLE INFORMATION’

The Act also permits parties to seek discovery of electronically stored information that is from a source that is not reasonably accessible. Unlike under the federal rules, the burden is on the responding party to bring a motion for a protective order or to make written objections to such a request.

The new California legislation assumes that all electronically stored information is accessible. Rather than requiring the requesting party to bring a motion to compel in the first instance, as under the federal rules, it instead provides that the responding party may bring a motion for a protective order. See CCP §2031.060(c).  The legislation does require that the responding party object in its written responses. Specifically, it must identify in its written responses the sources of electronically stored information that it asserts are not reasonably accessible. See CCP §§2031.210(d), 2031.310(d). By doing so, “the responding party preserves any objections it may have” related to that electronically stored information. See CCP §2031.210(d).  In opposing a motion to compel, the burden remains on the responding party to establish that the electronically stored information is inaccessible. See CCP §2031.310(d). As under the federal rules, even if the responding party establishes that the electronically stored information is inaccessible, the court for good cause may nevertheless order its production, although it may order the requesting party to share in the costs of doing so. See CCP §§2031.060(e), 2031.310(f).

SPECIFY THE FORM OF PRODUCTION

The requesting party may specify the form or forms in which it wants electronically stored information to be produced, and the responding party must include in its response the form it intends to use if no form is specified or if it objects to the specified form. But the responding party is not required to produce the same electronically stored information in more than one form. If a demand does not specify a form, then the responding party must produce it either in the form in which it is ordinarily maintained or in a reasonably usable form. See CCP §§2031.030(a)(2), 2031.280(c)-(d).

‘SAFE HARBOR’ FOR LOST DATA

The legislation provides that, “absent exceptional circumstances,” the court may not impose sanctions for failure to provide electronically stored information that has been lost, damaged, altered or overwritten as the result of the routine, good faith operation of an electronic information system. See CCP §§2031.060(i), 2031.300(d), 2031.310(j), 2031.320(d).

RETURN OF INADVERTENTLY PRODUCED PRIVILEGED INFORMATION (“CLAWBACK”)

After being informed of a claim of privilege regarding information already produced, the party that received the information must sequester it and either return it or make a motion within 30 days contesting the claim of privilege and presenting the documents to the court under seal. See CCP §2031.285. Before resolution of the motion, the receiving party is precluded from using or disclosing the information.

LIMITS ON ELECTRONIC DISCOVERY

Courts must limit electronic discovery where any of the following conditions exist: (1) it is possible to obtain the information from a more convenient, less burdensome or expensive source; (2) the discovery sought is unreasonably cumulative or duplicative; (3) the party seeking the discovery has had ample opportunity to previously obtain the information sought; or (4) the likely burden or expense outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues and the importance of the requested information in resolving the issues. See CCP §2031.060(f); see also CCP §1985.8(h).

SUBPOENAS OF ELECTRONICALLY STORED INFORMATION

The California Discovery Act also introduces a new section that expressly provides for the use of subpoenas to obtain electronically stored information from nonparties. See CCP §1985.8. It contains many of the same provisions described above applicable to requests to a party for production of electronically stored information, including the court’s ability to limit e-discovery in light of the amount in controversy, the producing party’s resources and the importance of the information.

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