California Finally Updates E-Discovery Rules

Amid the angst that surrounded state budget negotiations Monday night, Gov. Arnold Schwarzenegger quietly signed into law California's first set of electronic discovery regulations.

The new rules, crafted over three years from negotiations among lawmakers, attorneys, Silicon Valley leaders and court administrators, took effect immediately. They largely mirror federal regulations and for the first time offer state litigants specific definitions of what constitutes electronically stored information.

"Our hope is that this will cut down significantly on discovery disputes that require the courts to intervene," said Daniel Pone, a senior attorney for the Judicial Council who has worked on the issue for years.

With the now near-universal business use of e-mail, the Internet, data storage and text messaging, e-discovery has grown into a large and costly sector of litigation. The 2008 Socha-Gelbmann Survey estimated that commercial spending on electronic data discovery topped $2.7 billion in 2007.

"The California Discovery Act hadn't really been revised or amended since the mid-1980s," said Patrick O'Donnell, the supervising attorney for the Judicial Council's Office of the General Counsel who led efforts to write the state's e-discovery law. "This is really a major step to address the changes in the world of electronic data since then. ... This gives a lot more clarity and certainty in how the issue will be focused on."

California's new rules represent a compromise between trial lawyers, who wanted greater access to electronic records, and defense counsel and high-tech companies, who wanted protection for data they say is too costly or too difficult to produce. State law -- again, much like federal law -- will allow respondents to object to producing records they deem inaccessible so long as they specify the category of information they're trying to protect. That protection was a crucial element in securing tech companies' support for the bill.

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Source: law.com
By: Cheryl Miller