E-Discovery

The fact-finding process of discovery is a common and important staple in the course of litigation. In today's technological world, more people and business entities are choosing to store their documents and information online, which poses procedural questions for the discovery process.

On June 29, 2009, California enacted the Electronic Discovery Act ("EDA") to regulate discovery of electronically stored information. In the absence of defined procedures and steps, courts were burdened with litigation as parties attempted to resolve e-discovery disputes. Before California passed the EDA into law, the Code of Civil Procedure exclusively governed both traditional and electronic discovery.

E-Discovery is an entirely new way to conduct discovery. The process includes more than rephrasing discovery requests to include electronically stored information ("ESI") and the discovery produces more than emails. In fact, ESI is defined as “information that is storedin an electronic medium.” The term “electronic”is defined as “relating to technology having electrical, digital, magnetic,wireless, optical, electromagnetic, or similar capabilities.” The legislature probably intended thedefinition to cover new storage technologies by including the catch-all phrase“similar capabilities.” These new rules seemto permit the discovery of ESI, and allow for such discovery in the form of ademand to inspect, copy, test, or sample” such information. It runs across a spectrum that includes, everything from conducting scientific forensic searches, to uncovering electronically stored data on servers, and discovering traditional information that is stored electronically.

This new form of discovery is especially influential in relation to documents and information that do not exist in physical form and therefore could not be the subject of discovery requests prior to the EDA. For example, online postings on social networking sites are now subject to discovery.

Both attorneys and citizens have a duty to preserve ESI in case such documents are the subject of discovery at a later date. Indeed, Zubulake v. UBS Warburg, LLC, and subsequent decisions have established that late or insufficient production of electronic data, as prescribed by the discovery requests, may constitute gross negligence that is punishable by court sanctions. However, parties charged with the production of electronic documents may be exempt under the safe harbor provision of the EDA if they can establish that the information was lost in good faith in the course of normal operations. As the law continues to merge with technology, the knowledgeable and planned use of ESI and E-Discovery may result in favorable and successful court findings in all sorts of legal matters.