The evolution of e-discovery and computer forensics, Part 4

In 2005 and 2006, the California Judicial Council proposed amendments for the California Rules of Court with regard to electronic discovery (ediscovery), but with Amendments to the Federal Rules set to be released in 2006, California held off on their own amendments in order to see how the Federal Rules of Civil Procedure (FRCP) would play out, and what guidance would be given on how to treat this new distinction in discovery.

Many states hurried to bring their own rules into line with the new Federal Rules, but California was now lagging. A leader in tech and the home of Silicon Valley had fallen behind nearly 20 other states in clarifying its rules about ESI, 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 the highest priority for California,” by which he meant he wanted California to focus primarily (and almost solely) on its budget process, vetoing most legislation that did not deal directly with the budget.

Desperate for clarification, the California Judicial Council again recommended changes to the Civil Code in California, and the State Legislature passed the California Electronic Discovery Act to “eliminate uncertainty and confusion regarding the discovery of electronically stored information” (“ESI”) and “minimize unnecessary and costly litigation that adversely impacts access to the courts.” Put forth as an urgent measure, the bill was set to take effect immediately upon its signing. Although budget talks were bogging down much as they had in 2008 (and many other years), Governor Schwartzenegger signed the bill and it became force of law on June 29, 2009.

The California Electronic Discovery Act amended several parts of the California Rules of Court, bringing the state’s rules somewhat in line with the 2006 Federal Amendments, but with several distinctions.

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

California’s new Rules provide clarification as to what is not “reasonably accessible ESI,” and for a party to object to ESI discovery “on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense.” Now the responding party is required to “identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible” and thereby “preserve any objections it may have relating to that electronically stored information.”

Incidentally, the vetoed 2008 Bill had not included this clarification to deal with resisting 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 because of undue burden or cost.” It appears that the 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 more straightforward in many cases, making it more difficult to resist production in some cases.

Rather than use the clawback provisions in Rule 26 of the FRCP to protect “privileged information,” the CCP provides that if a producing party inadvertently produces privileged information, it may notify the receiving party, who then must “immediately” sequester the information and either return it or present it under seal to the court within 30 days for determination of the privilege issues.

Very similar to the FRCP, the CCP permits a court to limit the frequency or extent of discovery of ESI if the court finds that any of the following conditions exist:

• If the ESI can be retrieved from another source that is more convenient, less expensive, or less burdensome.
• If the ESI is unreasonably cumulative or duplicative.
• If the requestor has had ample time and opportunity to discover the information sought.
• If the burden is likely to outweigh the benefit.

The CCP specifically allows the responding party to object or move for a protective order on the grounds that the ESI being sought is “not reasonably accessible because of undue burden or expense.” If an objection (rather than a protective order), there must be a written response identifying the “types or categories of sources” that it claims are not reasonably accessible, with “accessibility” being largely driven by expense or burden of converting, restoring, or manipulating the data so it can be produced in a reasonable form.

The burden of proof for showing that specific ESI is not reasonably accessible now falls on the responder, making it seem (to this author) that data is more likely to be seen by the court as being “accessible.”

The CCP makes sanctions for destroyed data a little less likely, as long as the ESI was lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. In other words, if evidence was lost by accident or oversight, sanctions may not be applied as they might for purposeful destruction or spoliation of electronic evidence.

Like the Federal Rules, the requesting party can, within limits, specify the form of production, but if it does not, the CCP provides that the responding part produce the ESI in the form in which it is ordinarily maintained, or that is reasonably usable. It need not produce it in more than one form.

Finally, if it is reasonably likely that ESI will be a part of the case, the new California rules require the parties to meet and confer within 45 days before the case, while initial case management meetings can be held within 30 days. Given that all documents start on a computer as electronically stored information, the 45-day rule seems likely in an ever-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.

Technology with regard to the Law is changing and evolving at an ever-increasing rate, and the Rules of Civil Procedure must continue to change to keep up and stay relevant to what comes before the Court. The Amendments discussed above are certainly not the final ones. In fact, changes are being discussed even now that may come into force in December of 2015. Some of the proposed changes make it even harder to apply sanctions for loss of evidentiary ESI. We will discuss some of the forthcoming proposed amendments to California’s Civil Code in the next installment of this series.

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