California’s 2009 Changes to the ESI Act – Evolution of Electronic Discovery

The 2009 California Law Changes Regarding ESI

The Evolution of Electronic Discovery and Computer Forensics, Part 4

In 2005 and 2006, the California Judicial Council proposed amendments to the California Rules of Court regarding electronic discovery (ediscovery), but with the Federal Rules Amendments slated for publication in 2006, California deferred its own amendments to End of See how the Federal Rules of Civil Procedure (FRCP) would develop and what guidance would be provided on how to deal with this new distinction in discovery.

Many states were quick to adapt their own rules to the new Federal Rules, but California was now lagging behind. A tech leader and Silicon Valley home had lagged behind 20 other states in clarifying its rules on ESI, leaving the legal landscape in the West in some disarray. An attempt was made to pass new rules (Assembly Bill 926) in 2008, but was vetoed by then-Governor Arnold Schwartzenegger on September 27 of that year. The reason given was that he was “only signing bills that are the highest priority for California,” by which he meant that he wanted California to focus primarily (and almost exclusively) on its budget process, vetoing most laws. they were not dealing 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 discovery of electronically stored information. “(” ESI “) and” minimize unnecessary and costly litigation that negatively affects access to court. ” Presented as an urgent measure, the bill was to take effect immediately after it was signed. Although budget talks were stalled as much as they had in 2008 (and many other years), Governor Schwartzenegger signed the bill into law and it became law on June 29, 2009.

The California Electronic Discovery Act amended various parts of the California Rules of Court, aligning the state’s rules with the 2006 Federal Amendments, but with several distinctions.

Perhaps further changes will be required when quantum computing becomes mainstream …

The new California Rules provide clarification on what “reasonably accessible ESI” is not and for a party to object to ESI’s discovery “on the basis that it comes from a source that is not reasonably accessible due to undue expense or charge. “. The respondent must now “identify in its response the types or categories of sources of electronically stored information that it claims are not reasonably accessible” and therefore “preserve any objections it may have in relation to that stored information. electronically “.

Incidentally, the vetoed 2008 bill had not included this clarification to address resistance to discovery. Federal Rules differ in that they state, “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible due to undue cost or charge.” It seems that state rules make it a bit more difficult to resist discovery and production when it comes to ESI.

Given the proliferating and available tools in the areas of electronic discovery and computer forensics, ESI production is simpler in many cases, making resistance to production difficult in some cases.

Rather than use the take-back provisions in FRCP Rule 26 to protect “inside information,” the CCP states that if a producing party inadvertently produces inside information, it can notify the receiving party, who must then seize the information “immediately. “and return it or present it sealed to the court within 30 days for the privilege issues to be determined.

Much like the FRCP, the CCP allows a court to limit the frequency or scope of ESI discovery if the court determines that any of the following conditions exist:

Whether the ESI can be recovered from another source that is more convenient, less expensive, or less expensive.

If the ESI is excessively cumulative or duplicative.

If the applicant has had enough time and opportunity to discover the information sought.

If the load is likely to exceed the benefit.

The CCP specifically allows the responding party to challenge or request a protection order on the grounds that the ESI being sought is “not reasonably accessible due to undue expense or burden.” If it is an objection (rather than a protection order), there must be a written response that identifies the “types or categories of sources” that you claim are not reasonably accessible, and the “accessibility” is due in largely at the expense or burden of converting, restoring, or manipulating the data so that it can be reasonably produced.

The burden of proof to show that the specific ESI is not reasonably accessible now rests with the respondent, making it appear (to this author) that the court is more likely to consider the data to be “accessible”.

The CCP makes penalties for destroyed data slightly less likely, as long as the ESI has been lost, damaged, altered, or overwritten as a result of the routine and bona fide operation of an electronic information system. In other words, if the evidence was lost by accident or carelessness, penalties may not apply as would be applied to the intentional destruction or theft of electronic evidence.

Like Federal Rules, the requesting party may, within limits, specify the form of production, but if it does not do so, the CCP provides that the responding party produce the ESI in the form normally maintained, or that it is reasonably usable. . You do not need to produce it in more than one way.

Finally, if it is reasonably likely that ESI is part of the case, new California rules require the parties to meet and consult within 45 days of the case, while initial case management meetings can be held within 30 days. Since all documents begin on a computer as electronically stored information, the 45-day rule seems likely in an increasing number of cases.

The sections of the California Code of Civil Procedure as 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, 2031.300.320, and 2031.300.320. , and Sections 1985.8 and 2031.285 were added.

Technology regarding the Law is changing and evolving at an ever increasing rate, and the Rules of Civil Procedure must continue to change in order to stay current and relevant to what is presented before the Court. The amendments discussed above are certainly not final. In fact, changes are being discussed even now that may take effect in December 2015. Some of the proposed changes make it even more difficult to apply sanctions for loss of probative ESI. We will discuss some of the upcoming proposed amendments to the California Civil Code in the next installment of this series.