After Prior False Starts, California Adopts Comprehensive eDiscovery Rules

On June 29, California Governor Arnold Schwarzenegger signed California's Electronic Discovery Act into law, effective immediately. The act contains comprehensive eDiscovery rules that largely parallel the now well-established Federal Rules of Civil Procedure, but with a very important difference.

In comparison to some other states, California is late to the eDiscovery table due to some prior false starts. Without a comprehensive set of rules, California has had a makeshift approach to electronic discovery by weaving such eDiscovery concepts into existing discovery law. See, e.g., Cal. Civ. P. Code §§ 2016.020 (incorporates electronic data with term "writing" defined in Cal. Evid. Code § 250); 2017.710-2017.740 (enabling court to order use of "technology" in conducting discovery in complex cases).

In 2005/2006, the California Judicial Council drafted proposed eDiscovery amendments for the California Rules of Court, but on the eve of their scheduled adoption, put them on hold in order to evaluate the effect of the amended Federal Rules in practice. The California State Legislature then took up the cause over the ensuing years, but was met with a veto in the fall of 2008 when Governor Schwarzenegger deemed an earlier version of the Electronic Discovery Act as being not of the "highest priority" due to the state's 2008 budget crisis. Despite the eerily reminiscent circumstances of the state's current budget negotiations, Governor Schwarzenegger nevertheless signed this latest version of the act, with its urgency provision, into law.

The California Electronic Discovery Act bears substantial similarities to its Federal Rules counterpart:

• Terminology - Adopts the same terminology, i.e., "electronically stored information" or "ESI"

• Format of Production - Provides that the requesting party may specify the form in which the ESI is to be produced but permits the producing party to object and specify the form in which it intends to produce the ESI so long as it is in the form in which it is ordinarily maintained or in a reasonably usable format

• Not Reasonably Accessible ESI - Authorizes the producing party to withhold from production ESI that is not reasonably accessible on grounds of burden or expense, but requires specific identification of the inaccessible ESI and enables the court to require its production upon good cause

• Preservation Requirements - Requires preservation of all relevant ESI, accessible and inaccessible, even if not required to be produced on grounds of inaccessibility

• Privilege - Permits a party who inadvertently produces privileged ESI to request its return or isolation until the issue is resolved

• Sanctions - Allows the courts to issue sanctions for noncompliance, but bars the imposition of sanctions if ESI has been lost, damaged or altered as a result of the routine, good faith operation of IT systems

• Subpoenas - Applies not only to party litigants, but also to third-party subpoenas.

There is, however, one very important difference to bear in mind: Unlike the Federal Rules, California does not have a Rule 16/26 counterpart. Consequently, California litigants have no mandatory meet and confer, no initial disclosures, no required discovery plan, and no court discovery order that must be issued prior to the parties' initiation of discovery. In the federal system, parties, their counsel, and the court are required and typically able to get a sense of electronic discovery issues at the onset of a case and to set appropriate ground rules that largely govern expensive discovery efforts. Given the omission of such procedures in California, "discovery" on ESI issues, with the attendant expense and prolonged acrimony, likely will continue to pervade discovery efforts in cases involving significant ESI.

If you have any questions or would like any more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis attorneys:

New York
Denise E. Backhouse

Philadelphia
Stephanie A. "Tess" Blair
Jacquelyn A. Caridad
Scott A. Milner