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

California’s 2009 changes to the law 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 Courts regarding ed-discovery, but with the Amendments to the Federal Rules scheduled to be published in 2006, California delayed its own amendments. to see how the Federal Rules of Civil Procedure (FRCP) would develop and what guidance would be given on how to treat this new distinction in discovery.

Many states rushed to adapt their own rules to the new Federal Rules, but California was now falling behind. A technology leader and Silicon Valley home had lagged nearly 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 Law 926) in 2008, but it 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 California’s top priority,” meaning he wanted California to focus primarily (and almost exclusively) on its budget process, vetoing most laws that didn’t address 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 “remove uncertainty and confusion regarding the discovery of electronically stored information.” (“ESI”) and “minimize unnecessary and costly litigation that negatively impacts access to courts.” Introduced as an urgent measure, the bill went into effect immediately after it was signed. Though budget talks were stalling As much as in 2008 (and many other years), Governor Schwartzenegger signed the bill into law and it went into effect on June 29, 2009.

The California Electronic Discovery Law amended various parts of the California Rules of Courts, bringing the state rules in line with the 2006 Federal Amendments, but with several distinctions.

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

The new California Rules provide clarification as to what is not “reasonably accessible ESI” and for a party to object to ESI discovery “on the basis that it comes from a source that is not reasonably accessible due to undue burden or expense.” . Now, the responding party must “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 you may have in relation to that electronically stored information.” .

By the way, the 2008 vetoed bill had not included this clarification to deal with resistance to discovery. The Federal Rules differ in that they state: “A party need not provide for discovery of electronically stored information from sources that the party identifies as not being reasonably accessible due to undue burden or cost.” It seems that state rules make it a little harder to resist discovery and production when it comes to ESI.

Given the proliferating and available tools in the areas of e-discovery and computer forensics, ESI production is easier in many cases, making it more difficult to resist production in some cases.

Rather than use the recall provisions of FRCP Rule 26 to protect “inside information,” the CCP provides that if a producing party inadvertently produces inside information, it may notify the receiving party, who must then “immediately ” seize the information and return it or submit it sealed to the court within 30 days for determination of privilege issues.

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 onerous.

If the ESI is unreasonably cumulative or duplicate.

Whether the requester has had sufficient time and opportunity to discover the information sought.

Whether the burden is likely to outweigh the benefit.

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

The burden of proof to show that the specific ESI is not reasonably accessible now rests with the respondent, which makes it seem (to this author) that the court is more likely to find the data “accessible”.

The CCP makes penalties for destroyed data slightly less likely, provided the ESI has been lost, damaged, altered, or overwritten as a result of the routine, 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 they would for intentional destruction or dispossession of electronic evidence.

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

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

The California Code of Civil Procedure sections amended were Sections 2016.020, 2031.010, 2031.020, 2031.030, 2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.2 40, 2031.250, 2031.260, 2031.270, 2031.280, 2031.290, 2031.300, 2031.310 and 2031.320 , and added Sections 1985.8 and 2031.285.

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