A Closer Look at Calif. E-Discovery Law

On June 29, in the midst of the state's budget crisis, Gov. Arnold Schwarzenegger quietly signed into law the Electronic Discovery Act (Assembly Bill 5), which enacts comprehensive electronic discovery rules through amendments to the California Code of Civil Procedure. Because the Legislature deemed it urgent legislation, it is effective immediately.

Almost identical legislation passed the California Legislature unanimously in 2008, but Schwarzenegger vetoed it -- not based on any opposition on its merits, but rather because at that time the governor was vetoing all bills he considered nonpriority during the state's 2008 budget crisis.

Although the legislation largely follows the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, it differs somewhat in its treatment of inaccessible information and in its safe harbor for lost information.

EXPRESSLY PERMITS DISCOVERY OF ESI

The legislation expressly permits discovery of electronically stored information and provides that parties may demand copying, testing, sampling or inspection of such information. See CCP §2031.010(a), (e). In doing so, it recognizes that almost all cases to some extent or another now involve electronic discovery. This should not be surprising, as by some estimates more than 90 percent of all information generated today is in digital form and approximately 70 percent of that information is never reduced to hard copy.

PERMITS DISCOVERY OF 'INACCESSIBLE INFORMATION'

The legislation permits parties to seek discovery of electronically stored information that is from a source that is not reasonably accessible because of undue burden or expense (for example, backup tapes). Unlike under the federal rules, the burden is on the responding party in the first instance to bring a motion for a protective order or to make written objections to such a request.

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Source: law.com
By: Gareth T. Evans