California’s New Electronic Discovery Act

Fourth Quarter 2009Newsletters California UPDATE Employment Law

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California's Electronic Discovery Act became effective on June 29, 2009. The Act defines electronically stored information (ESI) and integrates the procedures for discovery of ESI into the existing rules of discovery. Among other things, the Act also allows parties to subpoena non-parties to produce ESI, requires the court to limit the extent and frequency of discovery of ESI under certain conditions, contains a procedure for information produced inadvertently and provides that a responding party may be required to translate ESI into a reasonably usable form, at the reasonable expense of the requesting party.

Employers must also remember that, immediately upon notice of pending or threatened litigation, a party becomes obligated to preserve information that may in any way be relevant to the litigation, including ESI. The Act provides that a court shall not sanction a party or its attorney for failure to provide ESI that is “lost, damaged, altered, or overwritten as a result of routine good faith operation of an electronic system.”

While the Act closely parallels the December 2006 amendments to the Federal Rules of Civil Procedure, there are several differences. Most significantly, all ESI is presumed accessible under California law.An employer may object or seek a protective order in responding to a request for inaccessible ESI, but under California law, the employer must still identify the types or categories of sources of the ESI that are not reasonably accessible. Under the Federal Rules, there is no duty to produce ESI that is not reasonably accessible due to undue burden or expense.

ESI is an important and sometimes irreplaceable source of discovery and evidence in litigation. These recent amendments to the federal and state rules of discovery should be reviewed in order to properly preserve information and effectively plan and respond to discovery requests.