States Embrace Electronic Discovery

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October 29, 2009

If you were under the misguided impression that attorneys and their litigant clients only need to deal expressly with electronic discovery in federal court, you need to wake up and smell the e-discovery coffee. In the wake of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, state legislatures have been getting into the act, adopting e-discovery rules for state court cases. Indeed, more than half of our 50 states have gone this route so far.

California is such a state. At the end of June, Governor Schwarzenegger signed into law the California Electronic Discovery Act. This law closely resembles the federal e-discovery rules in key respects, and is applicable to cases in the California state court system.

The California Act provides specific procedures for demanding as well as objecting to the manner in which electronic information is produced. Electronic information is to be produced in the way it ordinarily is maintained or in a reasonably usable form when the requested party does not request a particular format for production.

When a dispute arises as to the production of electronic information, the California Act entitles a judge to weigh the burdens and benefits of the electronic discovery at issue. Even if the electronic information sought is reasonably available for production, a judge may confine the scope of the production if the benefit of the production is outweighed by the burden. Long story short: the higher the probative value of the electronic information and the lower the production burden, the more likely the information will be ordered for production; the lower the probative value of the electronic information and the higher the production burden, the less likely the information will be ordered for production.

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Producing electronic information from various sources can be burdensome and expensive. For that reason, the California Act does allow a responding party to object on that basis and if electronic information is not reasonably accessible. Nevertheless, if the requesting party demonstrates good cause for the production of the subject electronic information, a court still can order production notwithstanding the objection.

This, of course, raises the question of which party should pay the freight for production of electronic information, especially when the information sought is not reasonably accessible and it will be burdensome and expensive to produce the information. Here, the California Act allows a judge to set conditions relating to the production of electronic information on a showing of good cause, "including allocation of the expense of discovery."

Lawyers and their litigant clients often are worried about arguments of "spoliation" of evidence. Namely, they are concerned about electronic information that is sought for production but that no longer is accessible or that has been destroyed. Perhaps a collective sigh of relief can be felt in California, as the California Act creates a safe harbor for the failure to maintain and produce electronic information based on "the routine, good faith operation of an electronic information system." Still, once a prospective or actual litigant knows of potential or actual legal claims, a litigation hold should be put in place and care must be taken to preserve electronic information that relates to those claims, notwithstanding existing retention and destruction policies.

When large quantities of electronic information are produced in litigation, there can be concerns about the inadvertent production of privileged materials. Here, under the California Act, when a producing party notifies the receiving party that it believes that it inadvertently produced privileged information, the receiving party must separate and return the subject information, or it must present the information to the court for resolution of the privilege assertion.

The California e-discovery features are not revolutionary and do not really deviate much from the federal e-discovery amendments. However, lawyers and their litigant clients in California and other state courts no longer can operate under the mistaken belief that e-discovery rules only apply in federal court.

Because electronic discovery can be extremely onerous in certain cases, counsel are smart on the front-end to meet and confer in good faith in an effort to get at the electronic information that truly matters, and to streamline the process in as an efficient and economical manner as possible.

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to [email protected] with the word "Subscribe" in the subject line.

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