California Electronic Discovery Act
Discovery is a fundamental part of litigation. In general, both sides utilize discovery to clarify the facts of a case, gain insight into the other side's case-in-chief, and explore the strengths and weaknesses of the litigation strategy. A successful discovery strategy requires being able to properly phrase requests and interrogatories to ensure the other party produces all the required information and documents. However, the discovery process is changing with the expansion of technology. Specifically, technology affects how people store and transfer information. Accordingly, the approach to discovery must be flexible with these changes. California has implemented the Electronic Discovery Act to help outline this changing scheme of discovery. Are you involved in litigation? Would you like to conform your discovery to changing rules and the Electronic Discovery Act? You may contact us to discuss how these new rules impact the discovery strategy.
On June 29, 2009, Governor Schwarzenegger signed into law the California Electronic Discovery Act (aka E-Discovery Act). The E-Discovery Act amends the Code of Civil Procedure to account for the fact that technology has changed the communication and storage of information. The E-Discovery Act is largely comparable with the 2006 amendments to the Federal Rules of Civil Procedure. This body of law establishes a new category of discoverable material-electronically stored information (ESI). The Code of Civil Procedure defines ESI as "information that is stored in an electronic medium." The E-Discovery Act also establishes new guidelines to apply to this body of information.
Interestingly, the new rules do not require parties to "meet and confer" on ESI issues prior to a pre-trial conference. Parties "meet and confer" to discuss a variety of issues outside of court in the hopes of resolving disputes themselves rather than seeking court intervention. However, the new rules leave the resolution of ESI-related issues in the courts' hands. Nonetheless, state court judges reserve the right to require the parties to meet and confer on ESI-related issues prior to a court conference. The E-Discovery Act protects non-parties from the burden and expense of producing documents in response to discovery requests. For example, a court can modify discovery or limit its scope if it finds there is a more convenient or less-expensive source for the information. Additionally, where parties demonstrate in good faith that they cannot produce the information, the law provides a greater degree of protection from sanctions (i.e., penalties). These provisions stand to shape the climate of discovery moving forward in litigation.