California Rules to Amend Inaccessible ESI

In 2003, in an attempt to address the growing concerns regarding electronic discovery, the U.S. District Court for the Southern District of New York, in Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, set forth what was, at the time, a ground-breaking rule regarding electronically stored information. The first in the series of cases on the issue, Zubulake I, assessed whether costs of production should be shifted to the requesting party. The Zubulake court found that there were certain types of information that were inaccessible, such as backup tapes and erased or fragmented data. The court in Zubulake I reasoned that the restoration process for backup tapes was lengthy, with each tape taking approximately five days to restore. The cost and time to the responding party therefore, would appear to be extreme. Zubulake IV, 220 F.R.D. 212, expanded on this idea of accessibility, seemingly finding that disaster recovery tapes are per se inaccessible.

Today, nearly six years after Zubulake, these concerns are not nearly as prevalent. It no longer takes days to restore a single backup tape. Rather, given the vast advances in technology since the days of Zubulake, or even the 2006 amendments to the Federal Rules of Civil Procedure, many companies now have disaster recovery systems from which data can be completely restored within a matter of hours. As such, data that was once deemed per se inaccessible, is now, in fact, readily accessible.

The Dec. 1, 2006 amendments to the federal rules regarding e-discovery were written in broad enough terms to encompass these advances in technology -- potentially opening the door for production of documents from disaster recovery systems, despite Zubulake's holding otherwise.
California has now followed suit with its own proposed rule changes. These rule changes make it even more likely that a court will find that backup data is accessible.

On Sept. 27, 2008, Gov. Arnold Schwarzenegger vetoed Assembly Bill 926 that would have amended California's Civil Discovery Act to address e-discovery issues. The amendments have been reintroduced to the Assembly as Assembly Bill 5, unchanged except for the addition of a statement regarding the urgency of its passage, which would make the bill effective immediately once signed. On March 3, 2009, the bill passed the Assembly Judiciary Committee and has since been read in the Senate and referred to the Committee on Rules.

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Source: Law.com
By David M. Hickey and Veronica Harris