California Electronic Discovery 101

© 2011 by Julie A. Goren, Esq.

[This article contains excerpts from “California Civil Litigation and Discovery,” by Julie A. Goren, Esq. and Barb Pollinger, J.D.]

Business and personal files of documents in paper form have been, and continue to be, routinely produced for inspection and copying. Today, however, most information is: (i) in digital rather than paper form (word processing, databases, and spreadsheets), (ii) located in numerous types of electronic devices (computers, printers, email, cell phones), and (iii) stored in all sorts of media (hard drives, flash memory, backup tapes, network servers). Discovery of this digitally stored information, often referred to as “electronic discovery” or “e-discovery,” is the subject of the California “Electronic Discovery Act,” enacted in 2009. Here are some highlights of the Act:

C.C.P. §2016.020 defines electronic as “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities,” and “electronically stored information” (“ESI”) as “information that is stored in an electronic medium.”

C.C.P. § 2031.030 allows a party demanding inspection of ESI to specify the form in which the ESI is to be produced. If not specified, C.C.P. § 2031.280 allows the responding party to produce the ESI in a form in which it is ordinarily maintained or that is reasonably usable. The responding party may object to the form specified by the demanding party.

C.C.P. § 2031.060 deals generally with protective orders relating to inspection demands, and specifically addresses those based upon claims that ESI is not reasonably accessible because of undue burden or expense. It sets forth the moving party’s and the opposing party’s burdens of proof, and gives the court authority to set conditions for the discovery of ESI.

C.C.P. § 2031.285 deals with inadvertent disclosure of privileged or protected ESI. The party who produced the ESI may notify the demanding party of the basis for the claim of privilege or other protection. The party who received the ESI must immediately return it, or present it to the court conditionally under seal for a determination of the claim.

There are “safe harbor” provisions throughout the code protecting parties from sanctions for failing to produce ESI that has been lost, damaged, altered, or overwritten as a result of the “routine, good-faith operation of an electronic information system.”

When ESI is reasonably likely to be sought, C.R.C., Rule 3.724 requires the parties to meet and confer about preservation of ESI, the form or forms in which it will be produced, the time within which it will be produced, how the cost of production is to be allocated among the parties, etc.

E-discovery is not today limited to large cases or any particular type of case, and it will become more common as we continue the transition to digitally stored information. If you have not yet come into contact with e-discovery, you certainly will soon. It would behoove you to familiarize yourself with the subject as soon as possible through self-study or courses. If you have little or no idea what “metadata,” “hidden files,” “scrubbing,” “culling,” “encryption,” “archival ESI,” “protocols,” and “de-duplication” are, or if, prior to reading this article, you thought that e-discovery meant serving discovery demands via email, you best get moving!

Julie A. Goren, Esq. is the author of Litigation By The Numbers, devoted solely to the intricacies of California civil litigation procedure, and updated twice yearly.

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