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The 2009 California Changes to ESI Law – Evolution of E-Discovery
2009 California changes the law regarding ESI
The Evolution of Electronic Discovery and Computer Forensics, Part 4
In 2005 and 2006, the Judicial Council of California proposed amendments to the California Rules of Court regarding electronic discovery (ediscovery), but with the Amendments to the Federal Rules set to be published in 2006, California rejected its own amendments to to see how the Federal Rules of Civil Procedure (FRCP) will work and what guidance will be provided on how to handle this new discovery distinction.
Many states rushed to bring their rules in line with the new federal rules, but California is now lagging behind. A technology leader and the home of Silicon Valley had lagged behind nearly 20 other states in clarifying its rules regarding ESI, leaving the legal landscape in the West in something of a mess. An attempt was made to pass new rules (Assembly Bill 926) in 2008, but it was vetoed by then-governor Arnold Schwartzenegger on September 27 of that year. The reason given was that he was “signing only the bills that are the highest priority for California,” meaning that he wanted California to focus primarily (and almost exclusively) on its budget process, vetoing most legislation that did not deals directly with the budget.
Desperate for clarification, the California Judicial Council again recommended changes to the California Civil Code, and the State Legislature passed the California Electronic Discovery Act to “eliminate uncertainty and confusion regarding the disclosure of electronically stored information” (“ESI “) and “minimize unnecessary and costly litigation that adversely affects access to the courts.” Enacted as an emergency measure, the bill was set to take effect immediately upon its signing. Although budget talks were stalling much like in 2008 (and for many years to come), Governor Schwartzenegger signed the bill into law on June 29, 2009.
The California Electronic Discovery Act amended several parts of the California Rules of Court, bringing the state rules somewhat in line with the 2006 Federal Amendments, but with some differences.
Perhaps new changes will be required when quantum computing becomes mainstream…
California’s new rules provide clarification on what is not “reasonably accessible ESI” and that a party may object to disclosure of ESI “on the grounds that it is from a source that is not reasonably accessible because of unnecessary burden or expense”. Now, the responding party is required to “identify in its response the types or categories of sources of electronically stored information that it claims are not reasonably accessible” and thereby “preserve any objections that may relating to that electronically stored information”.
Incidentally, the vetoed 2008 bill did not include this clarification to deal with resistance to discovery. The Federal Rules differ in that they state, “A party need not secure disclosure of electronically stored information from sources that the party identifies as reasonably inaccessible because of undue burden or cost.” It appears that state regulations make it a bit more difficult to resist discovery and production when it comes to ESI.
Given the available and proliferating tools in the fields of electronic discovery and computer forensics, the production of ESI is more straightforward in many cases, making it more difficult to resist production in some cases.
Rather than using the fallback provisions in FRCP Rule 26 to protect “privileged information,” the CCP provides that if a producing party inadvertently produces privileged information, it may notify the receiving party, which must then “immediately” to seize the information and either return it or file it under seal with the court within 30 days for determination of privilege issues.
Very similar to the FRCP, the LPP allows a court to limit the frequency or extent of disclosure of ESI if the court finds that any of the following conditions exist:
If the ESI can be obtained from another source that is more convenient, less expensive or less burdensome.
If ESI is unreasonably cumulative or duplicative.
If the applicant has had sufficient time and opportunity to discover the requested information.
If the burden is likely to outweigh the benefit.
The CCP specifically allows the responding party to object to or seek a protective order on the grounds that the ESI sought is “not reasonably accessible due to undue burden or expense.” If an objection (rather than a protective order), there must be a written response identifying the “types or categories of resources” she claims are not reasonably accessible, with “accessibility” being the primary cause from the expense or burden of converting, restoring, or manipulating the data so that it can be produced in a reasonable form.
The burden of proof to show that specific ESI is not reasonably accessible now falls on the responder, making it appear (to this author) that the data is more likely to be viewed by the court as “accessible”.
The CCP makes sanctions for destroyed data somewhat less likely, as long as the ESI was lost, damaged, altered, or overwritten as a result of the routine and good faith operation of an electronic information system. In other words, if the evidence was lost accidentally or through oversight, sanctions may not apply as they would for the intentional destruction or theft of electronic evidence.
Like the Federal Rules, the requesting party may, within limits, specify the form of production, but if it does not, the CCP requires the responding party to produce the ESI in the form in which it is customarily maintained, or which is reasonably usable. . There is no need to produce it in more than one form.
Finally, if there is a reasonable likelihood that ESI will be part of the case, the new California rules require the parties to meet and confer within 45 days prior to the case, while initial case management meetings can be held within 30 days. Given that all documents begin on a computer as electronically stored information, the 45-day rule seems feasible in an ever-increasing number of cases.
The sections of the California Code of Civil Procedure amended were Sections 2016.020, 2031.010, 2031.020, 2031.030, 2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240, 2031.250, 2031.260, 2031.270, 2031.280, 2031.290, 2031.300, 2031.310, and 2031.320 , and articles 1985.8 and 2031.285 were added.
Technology in relation to the Law is changing and developing at an ever-increasing rate, and the Rules of Civil Procedure must continue to change to keep up and stay relevant with what comes before the Court. The amendments discussed above are certainly not the final ones. In fact, even now, changes are being discussed that could go into effect in December 2015. Some of the proposed changes make it even more difficult to enforce sanctions for the loss of evidentiary ESI. We’ll discuss some of the upcoming proposed changes to the California Civil Code in the next part of this series.
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