Kiesel and McBride on the Proposed e-Discovery Rules for California: How Will the New Rules Affect State Court Practice?

… It was widely anticipated that new rules governing electronic discovery would take effect on January 1, 2009 and, in fact, the California Judicial Councils proposal to revamp state e-discovery rules was passed by the legislature without opposition, as discussed below. However, the legislation was vetoed by Governor Schwarzenegger on September 27, 2008, as fallout from the California budget crisis that took up much of the Legislatures and Governors time during the late summer of 2008.

Despite the veto, it is expected that the legislation will be re-introduced in 2009. Thus, California attorneys should familiarize themselves with the proposed rules as the legal community awaits further developments.

 

Discussion. This commentary primarily addresses core subjects of the proposed California Rules for electronic discovery: the scope of production, the form of production, document preservation, and maintaining privilege. These are perhaps the most important substantive areas of electronic discovery. It also addresses the new meet and confer rules that are important to the smooth functioning of electronic discovery rules in practice.

Businesses and consumer advocates alike should prepare for these rules changes and be ready to implement them when officially passed into law.

1. Document Production Obligations

Production of electronic documents involves important considerations of subject matter, accessibility, and cost-benefit analysis. The obligation to identify and produce certain electronic documents is spelled out with particularity in the proposed California Rules for electronic discovery, as well as in the broader Civil Discovery Act itself.

 

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2. Document Preservation Obligations

Document preservation goes to the heart of electronic discovery. If documents are improperly destroyed, important evidence may be lost and the goals of discovery undermined. However, businesses need latitude to periodically destroy documents not part of reasonably anticipated or active litigation, and not otherwise subject to retention under, e.g., Sarbanes-Oxley, HIPPA, etc.

The proposed California Rules contain a new Rule of Court, rule 3.724(b)(1) that requires counsel to meet and confer at least 30 days before the date set for the initial case management conference regarding any issues related to the preservation of discoverable electronically stored information when any party informs any other party in writing that the discovery of electronically stored information is reasonably likely to be sought in the proceeding.

 

 

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3. Form of Production

The proposed California Rules currently contain somewhat competing provisions governing the form of production. One sees this by comparing the rules for specifying the form of production in a request against the rules for objecting to the form of production in a response.

Code Civ. Proc. § 2031.080(a)will be amended to allow the requesting party to specify the form in which each type of electronically stored information is to be produced. This provision suggests that the requesting party controls the form of production.

However a new section, Code Civ. Proc. § 2031.280(b), will also be added to allow the responding party to object to a specified form for production and state in its response the form in which it intends to produce each type of the information…..

 

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4. Inadvertent Production of Privileged Information

Inadvertent productions of privileged documents are not uncommon in the era of electronic discovery. When a party and reviewing counsel are producing hundreds of thousands of electronic files in one production, it is possible for privileged documents to slip through from time to time.

The proposed California Rules deal with this problem by adding an entirely new section to the Civil Discovery Act, Code Civ. Proc. § 2031.285, which works like this….

 

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5. Meet and Confer Obligations

In addition to amending the Civil Discovery Act (portions of the California Code of Civil Procedure), two Rules of Court will be amended that highlight important obligations of counsel to meet and confer regarding electronic discovery and authorize the court to include electronic discovery in its case management orders.

California Rules of Court, Rule 3.724will be amended to include a new subsection (b) that specifically addresses electronically stored information:….