Alert > Electronic Document Retention and Discovery
California e-Discovery Proposal Vetoed
Last January, California’s Judicial Council proposed amendments to the Code of Civil Procedure and Rules of Court to address electronic discovery. The proposal quickly progressed through the Judicial Council and the state legislature. Last week, the California e-discovery amendments fell prey to the governor’s veto pen. The development likely means only that the bill will be delayed a year before it becomes law. Thus, important changes to California law affecting electronic discovery are still on the horizon and parties must be aware of what those changes mean for them.
Original Proposal Had Been Modified
The vetoed bill represented a somewhat modified proposal from the one the Judicial Council originally released. The revised proposal foregoes amendments to the Rules of Court and makes certain modifications to the amendments to the Code of Civil Procedure. Most significantly, the modifications affect sections governing motions to compel (Proposed Cal. Civ. Proc. Code § 2031.310(d)-(g)) and subpoenas (Proposed Cal. Civ. Proc. Code § 1985.8). The changes were meant to address concerns that motion practice routinely would be necessary to determine the discoverability of inaccessible ESI under the new rules. While making explicit that requesting parties, in addition to responding parties, may bring a motion to resolve the discoverability issue, the Judicial Council declined to adopt the federal rules’ “two-tier” approach which specifies that “a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible.” See Fed. R. Civ. P. 26(b)(2)(B). Given the governor’s recent veto, the success of these modifications remains uncertain for at least another year.
Although the Judicial Council retained the “good cause” standard for determining when a party may obtain discovery of inaccessible ESI, it added a clarification, similar to the federal rules, that the “good cause” standard is subject to the court’s ability to limit the frequency or extent of discovery. Proposed Cal. Civ. Proc. Code § 2031.060(d). Other concerns raised by commentators were rejected. The proposal’s definition of “electronically stored information” or “ESI” continues to differ slightly from that of the federal rules. Compare Fed. R. Civ. P. 34(a) and Proposed Cal. Civ. Proc. Code § 2016.020. And the form of production proposal contains a slight, but potentially significant, difference from the federal rules — the proposal, unlike the federal rules, fails to specify a default form of production when a requesting party’s specified form is objectionable. Compare Fed. R. Civ. P. 34(a) and Proposed Cal. Civ. Proc. Code § 2031.080(c)-(d).
Looking Ahead
Whether the Judicial Council succeeded in its attempts to foster a balanced discovery process and avoid unnecessary motion practice will likely remain unsettled for another year until the bill is proposed a second time and, presumably, signed by the governor. Once the bill becomes law, parties and counsel will experience the full effect of the modifications and can judge the extent of both the changes to California law and the Judicial Council’s modifications to the original proposal.
A copy of the revised proposal along with selected commentary is available at: http://www.courtinfo.ca.gov/jc/documents/reports/042508item4.pdf.
This alert was prepared by Bingham's complex and class action litigation partner Geoff Howard and associate Erin Smart.
Geoff Howard is managing partner of Bingham's San Francisco office, and former chair of the Complex & Class Action Litigation Group. He is a recognized authority on electronic discovery, and chairs PLI's Electronic Discovery for Corporate Counsel seminar. His comments on electronic discovery have been published by Reuters, CBS MarketWatch, the National Law Journal, the Legal Times and the San Francisco Daily Journal.
Erin Smart's work is focused on litigation and e-discovery issues. She co-authored "Discovery Channels," which was published in the Los Angeles Daily Journal in September 2007.
Clients rely on Bingham’s Electronic Document Retention and Discovery Practice as part of Bingham's focus on high-stakes litigation where technological savvy offers a competitive advantage. For more information on this alert or other electronic document retention and discovery issues, please contact any of the following attorneys:
Gary Adler, Practice Co-Leader, gary.adler@bingham.com, 212.705.7803
Geoff Howard, Practice Co-Leader, geoff.howard@bingham.com, 415.393.2485
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