California Enacts Electronic Discovery Law
by Dean Gonsowski on July 14th, 2009
There are legions of Arnold Schwarzenegger quotes, including the famous “I’ll be back” from The Terminator. Well, true to this sentiment, The Governator finally coughed up his hairball and made good on the promises to push through California’s long overdue alignment with the electronic discovery changes made by the FRCP on 12/1/2006.
Citing mysterious budgetary concerns (which still elude me), The Governator initially vetoed Assembly Bill No. 5. But as of July 1st, California’s new electronic discovery provisions were finally made law. Interestingly enough, California (which tends to more progressive than most) was way behind the times in terms of adopting the new framework of the FRCP…
“The California Discovery Act hadn’t really been revised or amended since the mid-1980s,” said Patrick O’Donnell, the supervising attorney for the Judicial Council’s Office of the General Counsel who led efforts to write the state’s e-discovery law. “This is really a major step to address the changes in the world of electronic data since then. … This gives a lot more clarity and certainty in how the issue will be focused on.”
Instead of the alleged budgetary concerns it appeared that California had (and still has) bigger fish to fry and needed some extra cycles to get lawmakers, attorneys, Silicon Valley leaders and court administrators all on the same page.
The new California provisions pretty closely mirror the FRCP language with a few minor exceptions, called out by Joshua M. Briones and Anahit Tagvoryan in their recent article…
- Minor tweaks to the Rule 37 language around the safe harbor provisions broadening slightly (beyond “loss”) the California language to also preclude sanctions where ESI is “lost, damaged, altered, or overwritten.”
- No corresponding meet & confer provisions in the California statute similar to the Rule 16 and 26 sections in the FRCP.
- Inaccessibility provisions of FRCP 26(b)(2)(B) changed slightly to require producing party to file a protective order for ESI it believes is not reasonably accessible due to “undue burden or expense.”
While a long time in the offing, these provisions (despite the minor tweaks) should be a refreshing change for California practitioners who’ve been waiting too long for the other shoe to drop. Now, case law can start to develop, which will continue the honing-in process…
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