Following the lead of the federal courts, the California Judicial Council has proposed a set of amendments to the Code of Civil Procedure intended to deal with electronic discovery in California state courts. The proposal includes amendments to the Civil Discovery Act (Code of Civil Procedure § 2016.010 et seq.), the addition of two new sections to the Code of Civil Procedure, and amending two case management rules in the California Rules of Court. In putting forward the proposal, the Counsel noted that the federal rules and the ABA Civil Discovery Standards have been revised to take electronic discovery into account and recognized that similar uniform standards were needed in California state courts.
The proposed amendments include a broad definition of what constitutes electronic information for purposes of discovery, referencing information stored in an electronic medium that is related to technology having “electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.” “Electronically stored information” would be defined as “information that is stored in an electronic medium.”
CCP 2031.010 would be amended to specifically state that a party may obtain discovery of “electronically stored information,” provide for “copying, testing, or sampling” of that information in addition to the right to inspect. The proposal does not alter the time frames for discovery. CCP 2031.030 would be amendment to include a provision that the party seeking discovery “may specify the form in which each type of electronically stored information is to be produced.”
Unlike the federal rules, where a party seeking information must move to compel production of information that is purportedly inaccessible, the California proposal would require a party seeking to avoid production to move for a protective order on the grounds that the information is inaccessible or production would be unreasonably burdensome. Even if such a showing is made, the court may still order production “if the requesting party shows good cause.” If such good cause is shown, the court may make appropriate allocation of the expenses associated with the production.
The proposed amendments would also include a safe harbor provision for information that has been “lost, damaged, altered, or overwritten” due to the routine and good faith operation of an electronic information system. The amendment would prohibit the imposition of sanctions in such a situation “absent exceptional circumstances.”
A “meet and confer” requirement would also be added that applies whenever any party informs any other party in writing that discovery of electronically stored information is reasonably likely to be sought.
The Judicial Council’s proposal and its invitation to comment may be viewed here:
http://www.courtinfo.ca.gov/invitationstocomment/documents/w08-01.pdf