In this Emerging Issues Analysis, Paul R. Kiesel and Steve Williams report that California's new Electronic Discovery Act, effective June 29, 2009, makes comprehensive changes in California law relating to e-discovery. This commentary includes an analysis by these two authors who helped write the act, the full text of the Code of Civil Procedure provisions affected by the Act, plus the proposed Rules of Court and the corresponding federal e-discovery rules. “The explosion of data in the Information Age has changed the face of litigation. In the past, cases were often built on eyewitness accounts, personal recollection, and credibility,” Kiesel and Williams recall. “Documents always have been important, but smoking gun evidence was difficult to locate manually (among mountains of paper files) — or simply wasn't written down. “Litigation is different today”, the authors explain. “Juries are now conditioned to expect smoking gun evidence. This evidence is often found in the growing mass of e-mail, video, text messages, online commentary, instant messages, and presentations, electronically recorded and stored — somewhere. Electronic information often takes center stage when a dispute arises. A picture is worth a thousand words. So is an incriminatory e-mail. “Electronically stored information (ESI) is at issue in almost every case. Information stored on such devices as cell phones, blackberries, computers, computer networks, and voicemail systems is prevalent. It is difficult to imagine a case in which, at a minimum, early discussions to ascertain whether ESI is at issue would not be appropriate — and these discussions must take place at the earliest possible time to insure that ESI is not lost due to the normal functioning of the devices described above. All practitioners should make it a routine practice to identify these issues at the outset of discovery,” Kiesel and Williams recommend. “In the rare case in which ESI is not at issue, nothing will be lost aside from a short letter and a brief amount of time spent confirming that ESI is not at issue. Such cases, however, will be the exception; the rule is that ESI will almost always be at issue, and a practitioner who ignores this reality does so at her own peril, both in terms of seeking information from an adversary and in insuring that she has taken appropriate steps in relation to her own client.” This commentary examines: Regulation of Electronic Discovery.California Law Governing Electronic Discovery.Scope and Frequency of Allowable Discovery.Document Preservation Obligations.Meet and Confer Obligations.Form in Which Electronic Evidence Must Be Produced.Inadvertent Production of Privileged Information.
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