California’s 2009 Changes to the ESI Law – 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 Judicial Council of California proposed amendments to the California Court Rules regarding ed-discovery, but with the Federal Rule Amendments scheduled to be published in 2006, California delayed its own amendments. to see how the Federal Rules of Civil Procedure (FRCP) would be developed and what guidance would be given on how to treat this new distinction in discovery.

Many states were quick to adapt their own rules to the new Federal Rules, but California was now falling behind. A technology leader and the home of Silicon Valley had fallen behind nearly 20 other states in clarifying its ESI rules, 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 California’s top priority,” meaning he wanted California to focus primarily (and almost exclusively) on its budget process, vetoing most laws that did not 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 affects access to court.” Presented as an urgent measure, the bill entered into force immediately after it was signed. Although budget talks were stalling as much as they had 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 Act amended several parts of the California Rules of the Courts, bringing the state rules in line 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 is not “reasonably accessible ESI” and for a party to object to discovery of ESI “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 it may have in relation to such electronically stored information.” .

Incidentally, 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 discovery of electronically stored information from sources that the party identifies as not reasonably accessible due to undue burden or cost.” It seems that state rules make it a bit harder to resist discovery and production when it comes to ESI.

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

Instead of using the FRCP Rule 26 retrieval provisions 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 ” Sequester the information and return it or present it sealed to the court within 30 days for determination of privilege issues.

Very similar to the FRCP, the CCP allows a court to limit the frequency or scope of discovery of ESI if the court determines that any of the following conditions exist:
Whether the ESI can be retrieved from another source that is more convenient, less expensive, or less burdensome.

If the ESI is unreasonably cumulative or duplicated.

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

If the burden is likely to exceed the benefit.
The CCP specifically allows the respondent to object to or request a protective order on the grounds that the requested ESI is “not reasonably accessible due to undue burden or expense.” If there is an objection (in lieu of a protection order), there must be a written response identifying the “types or categories of sources” that it claims are not reasonably accessible, and that the “accessibility” is largely due to the expense or burden of converting, restoring, or otherwise 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 falls on the respondent, making it appear (to this author) that the court is more likely to find 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 bona fide, routine operation of an electronic information system. In other words, if evidence was lost by accident or carelessness, penalties may not apply as they would for intentional destruction or theft 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 directs the responding party to produce the ESI in the form normally held, or to be 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 45 days. 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 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, 2031.290, 2031.300, 2031.310, and 2031.320 , and Sections 1985.8 and 2031.285 were added.

The 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 comes before the Court. The Amendments discussed above are certainly not final. In fact, changes are being discussed even now that may come into effect in December 2015. Some of the proposed changes make it even more difficult to apply ESI loss of evidence penalties. We will discuss some of the upcoming proposed amendments to the California Civil Code in the next installment of this series.