On June 29th, the Governator signed the new Electronic Discovery Act, which is effective immediately. Just last year, he vetoed an identical version of the act to focus on the budget crisis, I guess he was too busy to veto the same version of the bill, but now it’s law, so here we go. The Act is modeled after the 2006 amendments to the FRCP. The Act is the first significant revision of the civil discovery rules in a few decades and addressed electronically stored information, hot issues right now. For example, if you send a discovery request to Defendant for all documents pertaining to “x,” the Defendant must search all electronically stored information as well, i.e. they have to check their email systems, backup servers, backup tapes, digital forms of storage, etc. It applies really to all civil cases, since almost everything is stored electronically, in some form somewhere, whether we overtly think about it or not. Here are a few bullets of the more notable changes to the rules:
- A party can now request a sampling or testing of discoverable information, not just an inspection or copying. This is good news for intellectual property folks, who litigate over formulas, etc.
- Requests for Electronically stored information (ESI) may be objected to on the grounds that a) it is not stored in a reasonable accessible source. The objection must identify the source deemed not reasonably accessible (“the server is in Canada somewhere”); b) production would cost a lot or create a big burden; c) Objecting party can refuse to conduct a search absent a cost sharing agreement. This is a big change – previously, you had to pay for it, and seek cost sharing via a motion.
- Requesting party can specify form in which the ESI must be produced. Of course, you can object to this or provide an alternate form. If no form identified, responding party must produce in the form that it is kept in standard business practice. You cannot be required to produce more than one form of the requested ESI. Of course you have to also use these guidelines when subpoenaing ESI from third parties in the course of your litigation.
- If you are claiming the ESI is not maintained in a source reasonable accessible, you have the burden of showing specific facts and evidence of the alleged burden and expense. Once the burden is met, the burden shifts to requesting party to show good cause why the info should still be produced. The Court can set limits on how the ESI is produced.
- Mandated cost shifting is now under CCP 1985.8(g), with respect to subpoenas for ESI.
- Where requested information must be translated to render it accessible or intelligible, the requesting party bears the burden of that cost. (This affects wage disputes where we request large amounts of payroll information, which is not always prepared, stored or provided in a rational or intelligible way)
- Sanctions for failure to produce ESI are authorized, however, sanctions are prohibited if the failure to produce ESI resulted from the loss of ESI during routine good faith business operations. (“we deleted it” doesn’t count – even permanently deleted items are recoverable, don’t let that excuse fly.)
- ESI must be returned at the conclusion of the case because producing a large amount of ESI usually increases the risk that there may be privileged information in such disclosure (or trade secrets, etc.)
Discovery requests may also be limited when it is: 1)unreasonably cumulative/duplicative; 2) info can be found in a more easily accessible or less expensive source; 3) requesting party had ample opportunity to obtain the information but did not do so (serve requests early in the case to avoid this defense!!); 4) burden and expense of production is outweighed by the expected benefits.