On June 29, 2009, California Governor Arnold Schwarzenegger signed California Assembly Bill 5, the California Electronic Discovery Act, into law. The act amends the California Code of Civil Procedure to address the fact that technology has changed the way we communicate and store information since the state’s original Civil Discovery Act was enacted in the 1980s. With the Electronic Discovery Act, California joins an increasing number of state courts by clarifying the e-discovery process with new rules specific to electronic data.
Summary of the act and comparison to federal rules
The act, which took effect immediately on June 29, brings California largely in line with the 2006 amendments to the Federal Rules of Civil Procedure. Similar to the 2006 amendments to the Federal Rules, the act establishes a new category of materials—electronically stored information (ESI)—and creates new rules to specifically address issues unique to ESI. ESI is defined as information stored by a medium relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. Cal. Code Civ. Proc. §§ 2016.020(d) and (e).
With this definition change in place, the California Act goes on to add provisions dealing with the form of production, the impact of the “accessibility” of relevant information, and protection against the imposition of sanctions for the loss of certain information in specific circumstances. Notably absent is a specific requirement to meet and confer on ESI issues before a pre-trial conference. A potentially significant inclusion in the bill, however, is the adoption of Federal Rule 45’s general protections for non-parties against undue burden and expense in connection with subpoenas seeking ESI.
Form of production
Like the Federal Rules, the act sets forth procedures by which parties are to specify the form of production. In particular, a party requesting the material may specify the format in which the material is to be produced. Cal. Code Civ. Proc. § 2031.030(a)(2). If the requesting party fails to specify a format for production, the responding party may choose a format on its own, provided the format is either as the material is ordinarily kept or in another reasonably accessible format. Cal. Code Civ. Proc. § 2031.280(d)(1). Once the responding party produces the material in the form specified by the requesting party or the form chosen by the responding party if no request was made, the responding party need not produce the material again in any other format. Cal. Code Civ. Proc. § 2031.280(d)(2).
Inspection/production demands and “inaccessible” data
The act does not change how a party responds to inspection demands, but rather adds ESI to the categories of materials addressed in Cal. Code Civ. Proc. § 2031.010 et seq. A party responding to a demand to inspect ESI must respond separately in writing to each response, providing a statement of compliance or inability to comply or an objection. Cal. Code Civ. Proc. § 2031.210(a). However, the act contains specific provisions for objections to the production of ESI based on lack of reasonable access to such material. The responding party must object specifically, identifying the types or categories of sources it will not search and produce from, based on inaccessibility. Doing so preserves the objection. By doing so, the objection is preserved. Cal. Code Civ. Proc. § 2031.210(d).
As with any other objection in discovery, if a responding party objects to electronic production based on lack of reasonable accessibility, the asking party can move to compel further responses and production. Cal. Code Civ. Proc. § 2031.310 et seq. Unlike other objections, though, the burden is on the responding party to demonstrate that search and production of the ESI would be unduly burdensome or costly. Cal. Code Civ. Proc. § 2031.310(d). The responding party also bears this burden if it chooses to seek a protective order based on inaccessibility of the material, rather than simply making objections, which is also permitted. Cal. Code Civ. Proc. § 2031.210(d).
Some commentators have argued that the language in the act is significantly different from the Federal Rules. That proposition vastly overstates the differences, as (a) both systems leave it to the producing party to make a proper and specific objection in such circumstances and (b) the burden under both rules is placed upon the party asserting that the information is not reasonably accessible to prove the objection.
Sanctions and “safe harbors”
The California rules afford responding parties greater protection when ESI actually cannot be produced. Federal Rule 37 provides that no sanctions may be issued against a party or attorney for the loss of electronic data based on “routine, good faith operation” of electronic information systems. California provides the same measure of protection now, with language that includes damaged, altered, or overwritten data, as well as data “lost” as the result of the “routine, good faith operation of an electronic information system.” Cal. Code Civ. Proc. §§ 2031.060(i)(1) and 2031.300(d)(1).
California has long required attorneys to meet and confer before filing discovery motions and to attest to their good faith efforts to resolve disputes. Cal. Code Civ. Proc. § 2023.010. However, unlike the federal amendments to Rule 26 that set forth specific requirements to meet and confer on ESI issues in connection with the pre-trial conferences, California’s Rule of Court 3.724 was not amended in the act to require such discussions, despite the fact that the Judicial Council had recommended in 2008 that such a provision be included. That said, it is expected that many state court judges will expect such pre-trial discussions and best practices support such discussions in any event.
Non-party subpoenas for ESI
The rules the act sets forth for ESI are essentially the same for both subpoenas and requests for production to a party to the action. Cal. Code Civ. Proc §§ 1985.8 et seq. The parallel provisions address the form of production, production obligations relating to inaccessible data, and sanctions due to the loss of information as a result of the “routine, good faith operation of an electronic information system.” Section 1985.8(h) also incorporates proportionality considerations to address burdens and expenses.
Notably, the amended sections 1985.8(i) and (j) incorporate Federal Rule 45’s protections for non-parties that likely will be oft-cited in motion practice. Specifically, the section provides for mandatory protections of non-parties:
(j) A party serving a subpoena requiring the production of electronically
stored information shall take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena.
(k) An order of the court requiring compliance with a subpoena issued
under this section shall protect a person who is neither a party nor a party’s
officer from undue burden or expense resulting from compliance.
The bottom line …
Although some commentators have strained to find significant differences between the new California e-discovery rules and the 2006 Amendments to the Federal Rules of Civil Procedure, the differences are largely minor. In particular, the rules regarding “not reasonably accessible” information and the “safe harbor” provisions are effectively the same. Perhaps the most significant change to the California Discovery Act is the inclusion of Federal Rule 45’s protections for non-parties in the context of responding to subpoenas.
In dealing with e-discovery issues in California state courts, litigants should keep in mind that California courts (like their federal counterparts) retain substantial discretion to order discovery over a showing of undue burden and cost by the responding party. For example, if good cause exists, a court may order discovery of inaccessible information subject to certain restrictions, such as cost-shifting among the parties. Cal. Code Civ. Proc. § 2031.060(e). The court can also limit the frequency or scope of discovery if it determines it is possible to obtain the information from another, more-convenient or less-expensive source; the discovery is cumulative or duplicative; the requesting party has already had ample opportunity to discover the information sought; or the burden and expense of the discovery simply outweighs the benefits, based on the specific circumstances. Cal. Code Civ. Proc. § 2031.060(f). These limiting powers are available to the court for both electronic and traditional discovery.
Finally, in adopting the Electronic Discovery Act, California has joined 22 other states in adopting some form of statewide rules to govern electronic discovery in litigation. It is critical to note that, while many of these states have based their rules in whole, or in part, on the 2006 amendments to the Federal Rules, there remain substantial differences among the states. While some of these differences are largely procedural (e.g., required pre-trial meet-and-confer conferences), many of the differences are quite substantive (e.g., approaches to not reasonably accessible ESI, impact of inadvertent production of privileged information, cost-shifting).