California Enacts Electronic Discovery Act
By Ryan McCoy and Mark S. Spring
Earlier this summer, Gov. Schwarzenegger signed the California Electronic Discovery Act into law. The Act implements new rules for electronic discovery in California civil cases. Fortunately for parties that are called into both California and federal courts, the Act tracks closely the Federal Rules of Civil Procedure relating to electronic discovery. The Act became effective immediately upon passage, as an urgency statute.
The Act extends the Civil Discovery Act - which regulates the production of hard-copy documents in civil litigation - to the production of electronically stored information ("ESI"). The Act defines ESI as "information that is stored in an electronic medium." This covers potentially a sweeping category, including e-mail, voice-mail, instant messages, text messages, web stored information, documents, spreadsheets, databases, digital images, diagrams, and other digital forms requiring the use of computer hardware or software or other electronic storage means.
Federal law had gotten in front of the electronic discovery issues, amending the Federal Rules of Civil Procedure in 2006 to add provisions related to electronic discovery. However, California lagged behind the feds and many other states. In fact, prior to the passage of the Act, there was very little guidance for California judges on how to handle issues related to electronic discovery and rulings were very unpredictable. The Act will now allow litigants and their attorneys to rely on basic standards that the courts will now be required to follow.
A complete copy of the Act is available by clicking here.
Some of the highlights of the Act include:
1. ESI, when demanded, must be produced in the form in which it is ordinarily maintained, or in a form that is reasonably usable, unless otherwise agreed between the parties.
2. Where a demand for production does not specify the form for producing ESI, the responding party must produce the information in a form in which the information is ordinarily maintained or in a form that is reasonably usable, but need not produce the same ESI in more than one form.
3. The Act starts with the presumption that all ESI is accessible. Although the responding party may object to production on the grounds that the material is not reasonably accessible because of undue burden or expense, the objecting party bears the burden of demonstrating the validity of the objection. If the objecting party establishes that the ESI is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the demanding party can show good cause.
4. Where a party responding to a production request for ESI objects to a specified form of production, or if no production form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of requested information.
5. The Act prohibits imposition of sanctions for failure to provide ESI that has been lost, damaged, or otherwise destroyed as the result of the "routine, good-faith operation of an electronic information system." Future case law will likely flesh out what this means.
6. With some limitations, the procedures for production of ESI apply to third parties who are compelled to produce information in response to valid subpoenas.
If you are involved in civil litigation being handled in the California state court system, you will want to become familiar with the California Electronic Discovery Act and your requirements under it as well as how you can use it to obtain information from your opponent.