• Do Lessons From 2006 Still Apply? Why California's New E-Discovery Amendments May Change the Rules
  • July 16, 2009 | Author: Erin A. Smart
  • Law Firm: Bingham McCutchen LLP - San Francisco Office
  • After an initial proposal in January 2008 and a veto by Governor Schwarzenegger last fall, California succeeded in amending its Rules of Civil Procedure to address electronic discovery effective July 1, 2009. Although based largely on the 2006 amendments to the Federal Rules of Civil Procedure, California’s amendments differ in subtle ways from the federal scheme; whether these differences will cause courts to interpret state rules differently than the federal rules remains to be seen.

    Summary of Differences in the California and Federal Rules

    • Electronically stored information (“ESI”) under the federal rules covers information “stored in any medium” as long as it can be obtained in a “reasonably usable form,” while California defines ESI as information stored in an electronic medium, with “electronic” meaning “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.”
    • While California has the same “default forms of production” as the federal rules, California fails to specify that those forms apply when a “form of production is not specified by party agreement or court order.”
    • The California state rule analogue to Federal Rule 37(e), unlike its federal counterpart, styles itself as an explicit “safe harbor” from sanctions for information “lost, damaged, altered, or overwritten as the result of the routine good faith operation of an electronic information system.”
    • While California provides a procedural mechanism for raising the issue of inadvertent privilege waiver with the court, it foregoes the “claw back” and “sneak peek” provisions of the federal rules and lacks the substantive protections available in Federal Rule of Evidence (“FRE”) 502.
    • California abandoned its initial attempts to modify the Rules of Court to add an early e-discovery meet and confer obligation similar to that in Federal Rule 26(f).

    Definition of Electronically Stored Information

    ESI is the term coined by the federal rules to encompass the types of material discoverable under the 2006 amendments. Avoiding a “limiting or precise definition,” ESI in the federal rules covers information “stored in any medium” as long as it can be obtained in a “reasonably usable form.” Fed. R. Civ. P. 34(a), and advisory committee’s note to 2006 amendment thereto. While California employs the same term, ESI there refers to “information that is stored in an electronic medium,” apparently without regard to whether it is in a “reasonably usable form.” See Cal. Civ. Proc. Code § 2016.020(e). California’s only explicit limitation on ESI is that “electronic” means “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.” Id. at subsection (d). Despite the definitional differences, it’s unclear whether in practice “ESI” in California will encompass something other than “ESI” in federal court.

    Not Reasonably Accessible ESI

    California’s initial proposal, in January 2008, was controversial for its treatment of “not reasonably accessible” ESI. Outside of allowing a responding party to move for a protective order, the original proposal did not specify a method for objecting to the production of ESI that is not reasonably accessible due to undue burden or cost. Critics of the initial proposal argued that the omission would create mandatory motions for protective orders in nearly every California litigation. Prior to their adoption, the rules were modified to explicitly allow a party to object to discovery of ESI “on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense.” Cal. Civ. Proc. Code 2031.210(d). The new provision requires the responding party to “identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible” and thereby “preserve[] any objections it may have relating to that electronically stored information.” Id. It remains to be seen whether this provision will be interpreted consistently with the federal “two-tier” system in which not reasonably accessible ESI is presumptively undiscoverable. See Fed. R. Civ. P. 26(b)(2)(B) (“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”).

    Form of Production

    The federal rules and California state law contain nearly identical provisions governing the form of production. Both permit a requesting party to specify the form in which it wants ESI to be produced and require a responding party to include in its response the form it intends to use if no form is specified or if it objects to the specified form. The two sets of rules also specify that a party need not produce the same ESI in more than one form and that production defaults to the form in which information is ordinarily maintained or a form which is reasonably usable. See Cal. Civ. Proc. Code §§ 2031.030(a), 2031.280(d); Fed. R. Civ. P. 34(b). Neither set of rules defines “reasonably usable.” However, the federal rules explain that the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome to use. Advisory committee’s note to 2006 amendment to Fed. R. Civ. P. 34(b). Unlike the federal rules, California fails to clarify whether the default forms of production apply when a “form of production is not specified by party agreement or court order.” Compare Fed. R. Civ. P. 34(b) and Cal. Civ. Code § 2031.280(d).

    Safe Harbor

    Federal Rule 37(e) is generally perceived as a shallow “safe harbor,” if it is one at all. The California state rule analogue, unlike its federal counterpart, styles itself as an explicit “safe harbor” from sanctions for information “lost, damaged, altered, or overwritten as the result of the routine good faith operation of an electronic information system.” The California rule, similar to the advisory committee notes to the federal rule, states that it is not intended to alter a party’s preservation obligations. See Cal. Civ. Proc. Code §§ 2031.060, 2031.300, 2031.310, 2031.320.

    Privileged Information

    California foregoes the “claw back” and “sneak peek” provisions designed to expedite document production in the federal rules. Instead, California provides that if a producing party inadvertently produces privileged information, it may notify the receiving party, who then must “immediately” sequester the information and either return it or present it under seal to the court within 30 days for determination of the privilege issues. See Cal. Civ. Proc. Code § 2031.285(b) and (d). California’s amendment provides a procedural mechanism for raising the issue of inadvertent disclosure with the court, but California lacks a substantive corollary to FRE 502, which defines when “disclosure does not operate as a waiver.” See Fed. R. Ev. 502.

    Additional Amendments

    California applies a “good cause” standard, similar to the federal rules, to determine whether a party may obtain discovery of inaccessible ESI. Compare Cal. Civ. Proc. Code § 2031.060(d) and Fed. R. Civ. P. 26(b)(2)(B). Other amendments make perfunctory changes, such as explicitly allowing parties to discover and subpoena ESI. See Cal. Civ. Proc. Code §§ 2031.010, 1985.8.

    Conclusion

    Based in part on the 2006 federal e-discovery rules, recent amendments to California law may be interpreted consistently with federal law in many respects. However, subtle differences between the two bodies of law — including application of the default forms of production, the definition of ESI, and the explicit adoption of a “two-tier” system — may cause divergence as courts wrestle with the significance of California’s selective replication of the federal rules.