By Alexander Lubarsky, Esq.
Just when we thought that we were beginning to grow familiar with the 2009 Electronic Discovery Act, the State of California had to go and promulgate some new rules pertaining to ESI to keep us E-Disco dancers moving to that changing beat.
On January 1, several new changes went into effect for the California Code of Civil Procedure. The approved amendments address the production and discovery of ESI (electronically stored information) and protections for privileged communications. Understanding these important changes is critical to ensuring best practices for in-house counsel, and effective collaboration with outside counsel. Furthermore, having a firm grasp of the new rules always makes one appear more prepared and persuasive before the judge at a status conference or when arguing a motion – and similarly allows the ESI-rule-enlightened counsel to present himself or herself as a more fearsome adversary at the California EDA required Rule 3.724 meet and confer/status conference.
In California, it has long been the standard practice to maintain a log of all privileged documents. Although many California courts have requested production of this privilege log, the new additions to the Code of Civil Procedure now require that these logs be maintained and produced by law. Additionally, if an objection to the claim of privilege is filed, the withholding party must supply sufficient proof that the claims are merited.
The question of what constitutes “sufficient factual information” remains unanswered by California case law. However, a privilege log may be able to fulfill this requirement, according to the recent amendment.
ESI: Production and Discovery
Modern business practices call for new legislative changes; the old guidelines relating to physical documentation are insufficient to address the many issues that arise when handling electronically stored information. To this end, several provisions of California’s Code of Civil Procedure were amended specifically to address the production and discovery of ESI.
ESI now falls under the scope of items that must be produced upon subpoena. Previously, only physical items were bound by these laws. This marks a dramatic shift for future litigation; subpoenas may now request access to databases and computers in order to retrieve relevant ESI.
The new amendments also provide guidelines for objections if the source material were not reasonably accessible, or if responding to such a subpoena would cause undue cost burdens. In this case, the court may order evidence production and allocate the expenses to the requesting party.
Also, while the court has always been allowed the order of sanctions for parties who fail to comply with these discovery requests, the new amendments specify that sanctions cannot be issued for failure to produce ESI if the data in question has been altered, overwritten, damaged or lost due to routine maintenance when operating in good faith.
A court generally has the discretion to issue sanctions for the failure to comply with discovery requests. Under the new amendments, however, a court may not issue sanctions for the failure to produce electronically stored information that has been lost, damaged, altered or overwritten as the result of routine, good faith operation of an electronic information system.
Although it’s taken six years for them to catch up, California’s updated Civil Procedures now more closely mirror the Federal Rules of Civil Procedure. A new appreciation for the central role of ESI both in daily operations and during litigation is establishing new precedents for future legal proceedings.
TERIS has the tools and experience needed to create Privilege Logs, utilizing customized review tools to automate the process that meet the requirements of California’s State and Federal rules.