On June 29, 2009, Governor Arnold Schwarzenegger signed into law Assembly Bill 5, which enacts California's new Electronic Discovery Act. The new legislation's provisions are similar to the ediscovery rules in the Federal Rules of Civil Procedure, but are not identical to the Federal Rules.
Some of the highlights are as follows.
- The rules allow the discovery of electronically stored information (ESI) and allow the requesting party to specify a form of production. If no form of production is specified, the responding party can produce the information in a form ordinarily maintained or reasonably usable.
- The responding party can move for a protective order if the ESI is not “reasonably accessible,” but the court can order production for “good cause.”
- The rules contain “clawback” procedures to allow the responding party to recover privileged materials inadvertently disclosed.
- The rules contain a safe harbor for information lost due to good faith operation of an electronic information system, just as the Federal Rules do. In addition, California's safe harbor also precludes sanctions for information that is damaged, altered, or overwritten by the routine operation of the system, absent some exceptional circumstances.
- The proposed rules of court add a duty to meet and confer before the case management conference to discuss ediscovery issues.
- The case management order may address the discovery of ESI.
The Judicial Council sponsored a bill last year, AB 926, to add the proposed rules to the Code of Civil Procedure and California Rules of Court. Governor Schwarzenegger, however, vetoed the bill last September, citing the legislature’s delay in passing a budget and his intention to sign only those bills that are the highest priority for California.
The Judicial Council reintroduced the legislation as AB 5 in December. The legislature passed AB 5 without a single "no" vote, and the Governor signed it.
The ediscovery rules in the Federal Rules of Civil Procedure caused significant changes to federal litigation. We can expect California's Electronic Discovery Act to make similar changes to state litigation. And because around 90% of litigation is in state court, the changes to state rules may cause considerably more change to the legal system than the federal ediscovery rules.
The Electronic Discovery Act's text appears here.