July 2009 Blog Archive

There has been recent eDiscovery news out of Sacramento for those who practice or do business in California.  In 2006, the Federal Rules of Civil Procedure (FRCP) were amended in an attempt to deal with major eDiscovery issues arising in federal cases.  Since that time, state legislatures across the country have similarly been trying to address such issues at the state court level.  On June 29th, Governor Schwarzenegger signed California’s Electronic Discovery Act which went into effect immediately.  California companies and practitioners should take some comfort in that California’s version closely resembles the 2006 amendments to the FRCP.  The harmony between the California version and the FRCP means that parties have substantially identical obligations in federal and state court when litigating in California.

With the exception of the FRCP Rule 26(f) “Meet and Confer” process (which has no statutory equivalent in California), the vast majority of the requirements in California’s version mirror the 2006 FRCP amendments.  For example:

Information stored in the normal course of business:

• Any documents produced in response to an inspection demand are required to be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand

Form of production:

• If a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no 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 information
• If a demand for production does not specify a form for production, the responding party is required to produce the information in the form in which it is ordinarily maintained or in a form that is reasonably usable, but need not produce the same electronically stored information in more than one form

Safe Harbor and Sanctions:

• Existing law requires the court to impose a monetary sanction against any party or any attorney of a party for specified violations. AB-5 generally provides that the court shall not impose sanctions on a party or any attorney of a party 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

To read the full text of the Electronic Discovery Act, click here.