On June 29, 2009, Governor Schwarzenegger signed into law California’s Electronic Discovery Act, which is effective immediately. These amendments to California’s discovery rules are very similar to the recent revisions to the Federal Rules of Civil Procedure, and generally bring California in line with federal e-discovery standards.

Under the new Act, the party requesting production of electronically stored information (ESI) may specify the format in which it should be produced (e.g., native format, or TIFF, with or without certain metadata, etc.). Cal. Code Civ. Proc. §§ 1985.8(b), 2031.030(a)(2). If no format is specified, the responding party should produce the ESI in either the same format as it is ordinarily kept or in a "reasonably usable" form, and need only produce the ESI in one form. Id., §§ 1985.8(c), 2031.280(d). Thus, if a requesting party fails to specify the format of production in its request, and the responding party produces the ESI in a "reasonably usable format," the requesting party cannot then compel a different form of production.

A responding party can resist production of ESI on the grounds that it is not “reasonably accessible” because of undue burden or expense, and may do so by moving for a protective order or by opposing or objecting to the subpoena or request. Id., §§ 1985.8(d), 2031.060(c). However, a party objecting to the production of ESI as not reasonably accessible must still identify the types or categories of sources of ESI that it asserts are not reasonably accessible. Id., § 2031.210(d).

The party objecting to the production of ESI on this basis has the burden of proving that the ESI is not reasonably accessible. Id., §§ 1985.8(d), 2031.060(c), 2031.310(d). Once that burden is met, the burden shifts to the requesting party to show good cause for production even though the ESI is not reasonably accessible. Id., §§ 1985.8(e), 2031.060(d), 2031.310(e). If good cause is shown, the court has discretion to order production of the ESI in question under conditions it deems appropriate, including cost-shifting. Id., §§ 1985.8(f), 2031.060(e), 2031.310(f).

Significantly, the revised discovery rules require that courts limit the frequency or extent of discovery of ESI, even from sources that are reasonably accessible, if they find that any of the following conditions exist: (i) it is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive; (ii) the discovery sought is unreasonably cumulative or duplicative; (iii) the party seeking discovery has had ample opportunity through discovery to obtain the information sought; or (iv) the likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues. Id., §§ 1985.8(h), 2031.060(f), 2031.310(g).

Finally, the new discovery rules provide important limitations on the imposition of sanctions for loss of ESI. Absent exceptional circumstances, the revised statutes direct California courts not to impose sanctions on parties or their attorneys for failure to provide ESI that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. Id., §§ 1985.8(l)(1), 2031.060(i)(1), 2031.310(j)(1).

Authored By:
Michael W. Scarborough
(415) 774-2963