California Adopts Electronic Discovery Provisions That Impact Most Cases

On June 29, 2009, California Governor Arnold Schwarzenegger signed a new California law regarding electronic discovery that will affect most litigants in state court. A copy of the Electronic Discovery Act (the “Act”) is available at the State of California’s Legislative Counsel’s web site.

The Electronic Discovery Act takes effect immediately and applies to discovery requests made in pending cases after its effective date. The new law essentially parallels the 2006 amendments to the Federal Rules of Civil Procedure. The Act provides that generally, only reasonably accessible sources of electronic data are discoverable. It also provides that absent exceptional circumstances, courts should not impose sanctions on parties or their attorneys for information lost due to routine, good faith operation of an electronic information system.

Sections 2031.210, 2031.060, 2031.310 of the California Code of Civil Procedure now specifically provide that a party may object to an inspection demand, move for a protective order, or oppose a motion to compel production on the basis “that the information is from a source that is not reasonably accessible because of undue burden or expense.” The responding party preserves any objections related to electronically stored information if it objects and identifies “information of a type or category of source or sources that are not reasonably accessible.” Additionally, if a responding party objects to the manner specified for the production of electronically stored information, or if no form is specified, “the responding party shall state in its response the form in which it intends to produce each type of information.”

The Act attempts to balance the need for information with other factors such as cost to produce the information and the amount in controversy. For example, even if a party establishes that information is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause. Conversely, even if a party seeks information from a source that is reasonably accessible, a court may still limit the production of such electronically stored information if, for example, the “likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.”

Significantly, the new law does not alter any obligation to preserve discoverable information. It does provide, however, that “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as a result of the routine, good faith operation of an electronic information system.”