Calif. Judicial Council to Weigh New E-Discovery Rules

The Judicial Council will consider new rules for electronic discovery in California, a long-awaited package that's been received warily by the high-tech industry.

The proposed state rules, in their latest form, largely mirror federal regulations enacted in December 2006 that spell out how and when records from fax machines, computer databases, e-mails and even cell phones can be exchanged in civil litigation. The rules define what constitutes electronic information, and they allow "inspecting, copying, testing or sampling" by parties.

The new state e-discovery rules spell out what format the information should be provided in and add new "safe harbor" provisions to protect parties who lose e-materials due to "routine, good-faith operation" of their electronic systems.
Courts and litigants are already dealing with many of these issues through provisions -- originally designed for paper-based documents -- in the existing state Civil Discovery Act, said Patrick O'Donnell, supervising attorney at the Office of the General Counsel of the Judicial Council.

"But the current provisions don't really address the processes or the subtler issues that sometimes come up with technology," O'Donnell said.

The state rules have been in the works for more than a year, with judges, defense attorneys, trial lawyers and general counsel meeting to hammer out new language. The first draft, circulated at the beginning of the year, generated immediate opposition from high-tech companies and corporate groups that thought they strayed too far from the preferred federal rules.

Under federal rules, defendants don't have to search so-called "inaccessible" or "not reasonably accessible" data to respond to early discovery requests. Critics say mining for such documents, sometimes only available on backup systems designed for access after natural disasters, is costly and a potentially unfair burden on defendants.

The first draft of the California rules, as TechNet, Genentech and other critics interpreted them, would have placed the onus on defendants to automatically seek a protective order from inaccessible data searches.

"It seemed to be fostering motion practice," said Jerone English, a partner with Pillsbury Winthrop Shaw Pittman who specializes in e-discovery litigation.

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Source: Law.com
By: Cheryl Miller