Electronic Discovery Rules Enacted In California
California follows federal, and some state, courts in enacting new e-discovery rules. The rules took immediate effect and apply to all pending and future lawsuits. Cal. Code Civ. Proc. § 2031. The rules for the most part mirror the 2006 changes made to the Federal Rules of Civil Procedure.
The new California rules provide for discovery of electronically stored information (“ESI”). ESI is defined as information stored in an electronic medium and can include technology with electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. Parties are allows to inspect, copy, test, and sample ESI in the possession, custody or control of the other party. The requesting party may specify the form in which ESI is to be produced and the responding party can object and indicate the form in which it will be produced, or if no mention is specified, produce it as it is ordinarily maintained and in a form that is reasonably usable.
Request and Production of Electronically Stored Information. A party must specifically request the production of ESI and may specify the form in which it is produced. Consistent with the requirements applicable to other document requests, the Act requires the requesting party to specify what categories of information it is seeking when requesting production of ESI and may request to copy, test, or sample the responding party's ESI. A party responding to a request for ESI should produce it in the form requested or, if the responding party objects or there is no form of production specified, produce the ESI in the form in which it is ordinarily maintained or in a reasonably usable form.
Inaccessible ESI. A party objecting to the production of ESI on the grounds that it is not reasonably accessible and would cause an undue burden must set forth a specific objection rather than boilerplate language. This requires a party to identify the types of ESI that are not reasonably accessible. On a motion to compel, the burden is on the responding party to demonstrate the undue burden or expense.
Cost Shifting. Generally, the party producing ESI must bear the costs of production. However, if a party objects and demonstrates that data is not reasonably accessible because of undue expense, a court may order production "for good cause" and shift the costs to the demanding party.
Safe Harbor for Destruction of ESI. There is a safe harbor provision. The court "shall not impose sanctions on a party" for the destruction of ESI pursuant to a "routine, good faith" operation of a document/electronic information destruction policy. The provision does not alter a party's obligation to preserve ESI when it is on notice of litigation.
Claims of Privilege and Work Product. If a party producing ESI notifies the other parties that ESI subject to a claim of privilege or work product was inadvertently produced, the other parties shall either return the privileged information or present it to the court under seal for a determination of the privilege claim. A party challenging the assertion of a claim of privilege or work product cannot use or disclose the privileged information until the challenge is resolved.
Differences between the California and Federal Rules include that:
- In the federal system, the parties must meet at the beginning of the case to discuss discovery issues, including the preservation and production of ESI. The new California rules do not mandate these early meet and confer requirements or the related federal initial disclosure requirements. (However, many Judges require parties to meet and confer on discovery, especially prior to requesting court intervention.)
- California’s safe harbor is potentially broader (at least in theory) than its federal counterpart, which only mentions "lost" information.
