Rule of Court 3.724 was amended to require discussion of “Any issues relating to the discovery of electronically stored information” no later than 30 calendar days before the date set for the initial case management conference.  The broad language (i.e., “any”) was augmented by eight specific categories that must be expressly discussed:

(A) Issues relating to the preservation of discoverable electronically stored information;

(B) The form or forms in which information will be produced;

(C) The time within which the information will be produced;

(D) The scope of discovery of the information;

(E) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

(F) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

(G) How the cost of production of electronically stored information is to be allocated among the parties;

(H) Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information;

Many of these issues track FRCP language (including forms of production, preservation, privilege issues, etc.).  However, section G seems somewhat novel given the historical “American Rule” where the producing party is required to bear all necessary costs of production.

Curiously missing, in comparison with FRCP 26 B(2)(b), is the need to discuss the handling of “inaccessible” ESI, although this could easily be subsumed in the “any other issues” language of section H.  Also missing is a discussion about proposed searching and/culling protocols (aka “keyword negotiations”) which are often part of the core meet and confer topics in Federal court.

Nevertheless, the scope is broad enough to require *a* discussion of all likely relevant electronic discovery issues, which was often lacking historically.  Once that discussion starts, reasonably savvy counsel should be able to flesh out most of the significant issues.  And, given this broad language a judge would presumably give them a hard time for any material omissions.

Learn More On: Frcp Electronic Discovery.

Citing mysterious budgetary concerns (which still elude me), The Governator initially vetoed Assembly Bill No. 5.  But as of July 1^st, 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…