Weil, Gotshal & Manges LLP

California's Electronic Discovery Act

Lender, David J.

(July 7, 2009, eDiscoverings)


On June 29, 2009, Governor Schwarzenegger signed California’s Electronic Discovery Act (the "California Act") into law, establishing procedures to govern the discovery of electronically stored information ("ESI") in California state courts. The California Act tracks in large measure the 2006 amendments to the Federal Rules of Civil Procedure, and includes provisions:

(i) setting forth procedures for requesting and objecting to the form(s) of production of ESI, and requiring the production of ESI in the form(s) in which it is ordinarily maintained or in a form that is reasonably usable where the request does not specify the form(s) for production;

(ii) adopting the two-tier approach set forth in Fed. R. Civ. P. 26(b)(2)(B) by permitting a producing party to object to the production of ESI from a source that is not reasonable accessible because of undue burden or expense, but allowing the court to nonetheless order the production of such ESI if good cause is shown by the requesting party;

(iii) expressly endorsing cost-shifting by providing that if the court finds good cause for the production, it may set conditions for the discovery, "including allocation of the expense of discovery";

(iv) adopting the burden/benefit analysis similar to that set forth in Fed. R. Civ. P. 26(b)(2)(C), but expressly stating that it applies even to reasonably accessible ESI, so that a court may limit the scope of discovery of any ESI if it determines that the burden of the discovery outweighs the likely benefit;

(v) adopting the safe harbor set forth in Fed. R. Civ. P. 37(e) for the failure to produce ESI lost as a result of "the routine, good faith operation of an electronic information system," and;

(vi) adopting the privilege protocol set forth in Fed. R. Civ. P. 26(b)(5)(B) by requiring a receiving party to immediately sequester and return, or present to the court for a determination of the claim, in the event that a producing party notifies the receiving party that it has produced privileged information in discovery.

California joins a growing trend of approximately 30 states that have decided to include provisions in their rules aimed directly at the discovery of ESI. The California Act is particularly promising given that it expressly contemplates cost-shifting as well as limits on discovery of accessible as well as inaccessible ESI. Other states also have begun to enact amendments to their evidentiary rules following the recent adoption of Rule 502 of the Federal Rules of Evidence relating to privilege and waiver.

For a link to the text of California's Electronic Discovery Act click here.

Please contact David Lender at (212) 310-8153 or david.lender@weil.com if you would like to discuss any electronic discovery issues.


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