Category Archives: eDiscovery California

Duties, eDiscovery California, Law, Privilege, Scope

e-Discovery California: Amended C.R.C. 3.724 “Initial” Meet & Confer & Clawbacks

J0387759 About six weeks ago, I wrote that the new e-discovery California rules didn't include provisions for meet & confer or clawback agreements.

On August 14th, 2009, the Judicial Counsel amended the California Rules of Court 3.724 Duty to Meet and Confer to include the following language:

Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider each of the issues identified in rule 3.727 and, in addition, to consider the following:

(8)    Any issues relating to the discovery of electronically stored information, including:

    (A)    Issues relating to the preservation of discoverable electronically stored information;

    (B)    The form or forms in which information will be produced;

    (C)    The time within which the information will be produced;

    (D)    The scope of discovery of the information;

    (E)    The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

    (F)    The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

    (G)    How the cost of production of electronically stored information is to be allocated among the parties;

    (H)    Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information; and

(9)    Other relevant matters.

Well…that settles that!

eDiscovery California, Miscellaneous

e-Discovery California: The “California Factor”

J0436946 I stretched the boundaries of this blog by talking about toothbrushes (though I thought it was for a good purpose; demonstrating the result of poor management decisions), but I'm going to stretch a bit further.  The L.A. Times has an excellent article about the challenges of doing business in the state of California.

What does this have to do with e-discovery?  High overhead is a critical factor.  If I have to triage revenue to service the high cost of doing business – and the high cost of living – that's money that is segregated away from upgrading equipment & software, obtaining additional training, or perhaps I just have to put in longer hours.

Add the cost, necessary as it may be, of complying with the new e-discovery rules and the hole just gets a little deeper.

I'm proud of the fact that I'm in my 11th year of operating my company in California and have remained fiercely independent.  The article sheds some light on what it takes to make that happen.

If nothing else, it involves coffee.  That makes it all worthwhile…

Duties, eDiscovery California, Judges, Law, Sanctions

e-Discovery California: How Safe is your Harbor?

J0437217 Last time, I discussed what isn't in the CEDA.  Now, let's take a look at what is in there and how it differs from the Federal rules.  First up; Safe Harbor.

I've always tried to explain law in a common-sense fashion (which may be counter-intuitive to some, but I try).  In most cases, it's the procedural aspects that make things complicated (that, and vagueness of the laws themselves), but the basics still rely on logic.  For e-discovery Safe Harbor, you can almost understand it by channeling 'Watergate + 1' – what did you know and when did you know it?  The '+1' is, how did you react?

To me, how one might reach a violation is similar to the Federal rules; how sanctions are imposed is where things go in a different direction.

You want the easiest way to avoid sanctions?  Remember the word "but".  Absent exceptional circumstances, if you fail to preserve information due to a routine, good faith procedure, you're fine, but if you knew or should have reasonably anticipated that there was an obligation to preserve discoverable information…

Get the idea?

Here's where I see the problem; the language "Absent Exceptional Circumstances".  Anybody want to take a crack at what might be "exceptional circumstances"?  What happens when nobody can nail down what that means?  You probably guessed it; the judge will decide!

Monetary sanctions will likely be harder to come by under the California Safe Harbor rules.  Unfortunately, adverse inferences and/or sanctions on counsel may be more likely.

I suppose this is where I normally make a witty closing comment like, "Don't let your case go down with the ship by striking an e-discovery iceberg."  Naaaah…too predictable…

eDiscovery California, Law, Strategy

e-Discovery California: Boo-Hoo-Hoo! No Rule 502!

J0382859 …or Rule 16…or Rule 26, for that matter…

Sorry…I did say my next post was going to be about what didn't make it into the CEDA (California Electronic Discovery Act), but then the ABA and Gibson, Dunn fouled that up with two excellent reports.

As the title suggests, Federal Rule 502, which addresses inadvertent production, clawbacks and subject matter waiver is not emulated in the CEDA.

Also, Rules 16 and 26, which address pre-trial conferences and disclosure respectively, aren't there, either.

The Federal rules may mandate "Meet & Confer" and "Disclosure", but
for those who don't know, California is not a disclosure state; we only
have discovery; so it's not surprising that a version of Rule 26 isn't there.

The key word to remember here is "mandatory".  Although technically 502 could come up at any time, my colleagues and I have been hammering home that the proper time to handle all of the open questions is at the outset of litigation – not after something goes wrong.

The answer?  Simple.  There's nothing stopping you from raising these pre-trial issues and agreeing upon a course of action.  As to how cooperative your adversary might be, well, that's another matter entirely…

eDiscovery California, Law, Technology

PANIC ROOM! (Or: How to Stop Worrying and Learn to Love the CA E-Discovery Act)

NHN Wombat Lawyers; it’s been roughly three weeks since Governor Arnold
Schwarzenegger signed the California Electronic Discovery Act into law.  How are you coping so far?  Maybe a better question is; how are you
assisting your clients to cope?

Our clients are not going to be responsible for interpreting, understanding
and/or complying with the new law; we are. 
Besides, our clients are like that ferocious neighborhood dog we ran
away from as kids; they’re much more scared than we are. 

We must take the lead and there’s no way around this
fact.  Why?  Because we’re presumed competent.  We’re going to run into two kinds of judges;
those who “get” e-discovery and those who don’t.  Re the former, we don’t want to earn their
wrath; re the latter, this is our opportunity to run the show, especially if our opponents haven't brought themselves up to speed.

Let’s distill this down to some simple concepts.  First of all, Electronic Discovery is still
“Discovery”.  If you’ve ever lost a
document and had to search through file cabinets, desk drawers and bankers’
boxes looking for it like a needle in a haystack, then relax!  The only difference here is that it’s an electronic haystack.  In the former analogy, the needle has no way
of revealing itself to you – unless you happen to be carrying a heck of a big
magnet in your pocket – but electronically stored information (ESI) gives you
that ability.  If you carefully consider and
perfect your method of search, the needle will come to you – not you to it.

The other thing to remember is that this is civil procedure
law, pure and simple.  It’s the nuts and
bolts of what we do.  We know this stuff!  Ok, so maybe I describe my past experience
studying civ pro as ‘algebra masquerading as law’, but I’m getting over my
phobia…

The rules may have been formalized on June 29th,
2009, but these procedures have been around since the dawn of electronic
data.  Plus, Federal Rules have been in
place since December 2006.  We have
existing case law and resources available to guide us.  Call me a contrarian, but I look at having a
uniform guide as a good thing, not a bad thing. 
Like it or not, there is now a level playing field that applies to
everyone in the State.

Now, like everything else in law, we’re tasked with
navigating the various exceptions between jurisdictions; but we can handle
that.  We already do!

The first e-discovery case I worked on was in 1997.  The plaintiff made a motion demanding
emails.  We, as the defendant, did not
want to produce them.  We presented the
argument that, due to changes in our internal technology, compelling us to reconstruct
our prior back-up tape system to comply with the motion would be cost-prohibitive
and unduly burdensome.  The court agreed
and we prevailed on the motion.

Today, under the Federal Rules, it would be described as a
Zubulake ‘accessible vs. inaccessible’ argument with cost-shifting thrown in
for good measure.

You didn’t think this stuff was new, did you?

Remember this number – 27. 
It’s important for this reason – people at or under this age group are more
likely to be techno-weenies.  They’ll be
comfortable in the world of Twitter, Blackberries, texting (and worse, sexting),
SEO and HTML.  People who are over
27?  Well…it depends.  I’m 46, but was lucky (or unlucky) enough to
be immersed in technology at a young age. 
It probably helped that my older cousin was a computer scientist.  This makes me as rare as the Northern Hairy-nosed Wombat; an attorney who possesses a deep understanding of
technology – and unlike the Wombat, I come with my own nose-clippers.

E-Discovery may result in the biggest generational gap a law
firm has ever seen.  By default, where
technology is concerned, it creates two classes; those who know, and those who don’t
know.  Believe me, you don’t want to
be in the class that doesn’t know, you want to be in the class that knows.  You know?

Do you see where I’m going with this?  You need
each other.  Those who understand
technology need to work very closely with those who understand the law.  If you’re lucky, you have both resources
available to you under one roof.  If not,
I have only one suggestion; hire your experts early – you’re going to need
them.

Keep in mind, someone will have to testify.  This may be the first time in recorded
history where having a ponytail and a pocket protector will actually lend your testifying expert credibility
rather than detract from it.  Alas, I
have neither of those…

I want you to remember another number – 42.  The only significance is that it's the answer to Life, the Universe, and Everything from one of my favorite book series, The Hitchhiker's Guide to the Galaxy.  Unfortunately, it's not the answer to e-discovery.  For that, perhaps I should have re-titled this post like the slogan associated with the series; "Don't Panic!"…

As promised, next week we'll start picking apart the new rules…

California Lawyer, Duties, eDiscovery 101, eDiscovery California, Education, Implementation, Law, Law Practice Management, Technology

CALIFORNIA ELECTRONIC DISCOVERY ACT

BILL NUMBER: AB 5CHAPTERED 06/29/09

CHAPTER 5
FILED WITH SECRETARY OF STATE JUNE 29, 2009
APPROVED BY GOVERNOR JUNE 29, 2009
PASSED THE SENATE JUNE 15, 2009
PASSED THE ASSEMBLY MARCH 12, 2009

INTRODUCED BY Assembly Member Evans
 (Coauthors: Assembly Members Feuer and Tran)
 (Coauthors: Senators Corbett and Harman)

  DECEMBER 1, 2008

 An act to amend Sections 2016.020, 2031.010, 2031.020, 2031.030,
2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240,
2031.250, 2031.260, 2031.270, 2031.280, 2031.290, 2031.300,
2031.310, and 2031.320 of, and to add Sections 1985.8 and 2031.285
to, the Code of Civil Procedure, relating to civil discovery, and
declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL'S DIGEST

 AB 5, Evans. Civil discovery: Electronic Discovery Act.

 The Civil Discovery Act permits a party to a civil action to
obtain discovery, as specified, by inspecting documents, tangible
things, and land or other property in the possession of any other
party to the action. Existing law requires the party to whom an
inspection demand has been directed to respond separately to each
item or category of item by any of certain responses, including a
statement that the party will comply with the particular demand for
inspection by the date set for inspection pursuant to a specified
provision.
 This bill would establish procedures for a person to obtain
discovery of electronically stored information, as defined, in
addition to documents, tangible things, and land or other property,
in the possession of any other party to the action. This bill would
permit discovery by the means of copying, testing, or sampling, in
addition to inspection, of documents, tangible things, land or other
property, or electronically stored information.
 The Civil Discovery Act permits the party demanding inspection and
the responding party to agree to extend the time for service of a
response to a set of inspection demands, or to particular items or
categories of items in a set, to a date beyond that provided in a
specified provision.
 This bill would permit the parties to agree to extend the date for
inspection, copying, testing, or sampling beyond those provided in
specified provisions.
 The Civil Discovery Act requires any documents produced in
response to an inspection demand to be produced as they are kept in
the usual course of business, or be organized and labeled to
correspond with the categories in the demand. The documents are to be
produced on the date described above or as agreed to by the parties
pursuant to an extension.
 This bill would make this provision applicable, in addition, to
documents produced in response to a demand for copying, testing, or
sampling. The bill would furthermore provide that if a party
responding to a demand for production of electronically stored
information objects to a specified form for producing the
information, or if no form is specified in the demand, the responding
party shall state in its response the form in which it intends to
produce each type of information. In general if a demand for
production does not specify a form or forms for producing a type of
electronically stored information, the responding party would be
required to produce the information in the form or forms in which it
is ordinarily maintained or in a form that is reasonably usable, but
need not produce the same electronically stored information in more
than one form.
 The bill would also provide that a party seeking a protective
order regarding, or a party objecting to or opposing a demand for,
production, inspection, copying, testing, or sampling of
electronically stored information, on the basis that the information
is from a source that is not reasonably accessible because of the
undue burden or expense shall bear the burden of demonstrating that
the information is from a source that is not reasonably accessible
because of undue burden or expense. If it is established that the
electronically stored information is from a source that is not
reasonably accessible because of undue burden or expense, the court
may nonetheless order discovery if the demanding party shows good
cause, subject to specified restrictions in specified circumstances.
 Existing law requires the court to impose a monetary sanction, as
specified, against any party or any attorney of a party for specified
violations.
 This bill would generally provide that, notwithstanding the above
provision, the court shall not impose sanctions on a party or any
attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as
the result of the routine, good faith operation of an electronic
information system.
 This bill would declare that it is to take effect immediately as
an urgency statute.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

 SECTION 1. This act shall be known as the Electronic Discovery
Act.
 SEC. 2. Section 1985.8 is added to the Code of Civil Procedure, to
read:
 1985.8. (a) (1) A subpoena in a civil proceeding may require that
electronically stored information, as defined in Section 2016.020,
be produced and that the party serving the subpoena, or someone
acting on the party's request, be permitted to inspect, copy, test,
or sample the information.
 (2) Any subpoena seeking electronically stored information shall
comply with the requirements of this chapter.
 (b) A party serving a subpoena requiring production of
electronically stored information may specify the form or forms in
which each type of information is to be produced.
 (c) Unless the subpoenaing party and the subpoenaed party
otherwise agree or the court otherwise orders, the following shall
apply:
 (1) If a subpoena requiring production of electronically stored
information does not specify a form or forms for producing a type of
electronically stored information, the person subpoenaed shall
produce the information in the form or forms in which it is
ordinarily maintained or in a form that is reasonably usable.
 (2) A subpoenaed person need not produce the same electronically
stored information in more than one form.
 (d) The subpoenaed person opposing the production, inspection,
copying, testing, or sampling of electronically stored information on
the basis that information is from a source that is not reasonably
accessible because of undue burden or expense shall bear the burden
of demonstrating that the information is from a source that is not
reasonably accessible because of undue burden or expense.
 (e) If the person from whom discovery of electronically stored
information is subpoenaed establishes that the information is from a
source that is not reasonably accessible because of undue burden or
expense, the court may nonetheless order discovery if the subpoenaing
party shows good cause, subject to any limitations imposed under
subdivision (h).
 (f) If the court finds good cause for the production of
electronically stored information from a source that is not
reasonably accessible, the court may set conditions for the discovery
of the electronically stored information, including allocation of
the expense of discovery.
 (g) If necessary, the subpoenaed person, at the reasonable expense
of the subpoenaing party, shall, through detection devices,
translate any data compilations included in the subpoena into a
reasonably usable form.
 (h) The court shall limit the frequency or extent of discovery of
electronically stored information, even from a source that is
reasonably accessible, if the court determines that any of the
following conditions exists:
 (1) It is possible to obtain the information from some other
source that is more convenient, less burdensome, or less expensive.
 (2) The discovery sought is unreasonably cumulative or
duplicative.
 (3) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought.
 (4) The likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in
controversy, the resources of the parties, the importance of the
issues in the litigation, and the importance of the requested
discovery in resolving the issues.
 (i) If a subpoenaed person notifies the subpoenaing party that
electronically stored information produced pursuant to a subpoena is
subject to a claim of privilege or of protection as attorney work
product, as described in Section 2031.285, the provisions of Section
2031.285 shall apply.
 (j) A party serving a subpoena requiring the production of
electronically stored information shall take reasonable steps to
avoid imposing undue burden or expense on a person subject to the
subpoena.
 (k) An order of the court requiring compliance with a subpoena
issued under this section shall protect a person who is neither a
party nor a party's officer from undue burden or expense resulting
from compliance.
 (l) (1) Absent exceptional circumstances, the court shall not
impose sanctions on a subpoenaed person or any attorney of a
subpoenaed person for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as
the result of the routine, good faith operation of an electronic
information system.
 (2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
 SEC. 3. Section 2016.020 of the Code of Civil Procedure is amended
to read:
 2016.020. As used in this title:
 (a) "Action" includes a civil action and a special proceeding of a
civil nature.
 (b) "Court" means the trial court in which the action is pending,
unless otherwise specified.
 (c) "Document" and "writing" mean a writing, as defined in Section
250 of the Evidence Code.
 (d) "Electronic" means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.
 (e) "Electronically stored information" means information that is
stored in an electronic medium.
 SEC. 4. Section 2031.010 of the Code of Civil Procedure is amended
to read:
 2031.010. (a) Any party may obtain discovery within the scope
delimited by Chapters 2 (commencing with Section 2017.010) and 3
(commencing with Section 2017.710), and subject to the restrictions
set forth in Chapter 5 (commencing with Section 2019.010), by
inspecting, copying, testing, or sampling documents, tangible things,
land or other property, and electronically stored information in the
possession, custody, or control of any other party to the action.
 (b) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to copy a document that is in the possession, custody,
or control of the party on whom the demand is made.
 (c) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to photograph, test, or sample any tangible things
that are in the possession, custody, or control of the party on whom
the demand is made.
 (d) A party may demand that any other party allow the party making
the demand, or someone acting on that party's behalf, to enter on
any land or other property that is in the possession, custody, or
control of the party on whom the demand is made, and to inspect and
to measure, survey, photograph, test, or sample the land or other
property, or any designated object or operation on it.
 (e) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect, copy, test, or sample electronically stored information
in the possession, custody, or control of the party on whom demand is
made.
 SEC. 5. Section 2031.020 of the Code of Civil Procedure is amended
to read:
 2031.020. (a) A defendant may make a demand for inspection,
copying, testing, or sampling without leave of court at any time.
 (b) A plaintiff may make a demand for inspection, copying,
testing, or sampling without leave of court at any time that is 10
days after the service of the summons on, or appearance by, the party
to whom the demand is directed, whichever occurs first.
 (c) Notwithstanding subdivision (b), in an unlawful detainer
action or other proceeding under Chapter 4 (commencing with Section
1159) of Title 3 of Part 3, a plaintiff may make a demand for
inspection, copying, testing, or sampling without leave of court at
any time that is five days after service of the summons on, or
appearance by, the party to whom the demand is directed, whichever
occurs first.
 (d) Notwithstanding subdivisions (b) and (c), on motion with or
without notice, the court, for good cause shown, may grant leave to a
plaintiff to make a demand for inspection, copying, testing, or
sampling at an earlier time.
 SEC. 6. Section 2031.030 of the Code of Civil Procedure is amended
to read:
 2031.030. (a) (1) A party demanding inspection, copying, testing,
or sampling shall number each set of demands consecutively.
 (2) A party demanding inspection, copying, testing, or sampling of
electronically stored information may specify the form or forms in
which each type of electronically stored information is to be
produced.
 (b) In the first paragraph immediately below the title of the
case, there shall appear the identity of the demanding party, the set
number, and the identity of the responding party.
 (c) Each demand in a set shall be separately set forth, identified
by number or letter, and shall do all of the following:
 (1) Designate the documents, tangible things, land or other
property, or electronically stored information to be inspected,
copied, tested, or sampled either by specifically describing each
individual item or by reasonably particularizing each category of
item.
 (2) Specify a reasonable time for the inspection, copying,
testing, or sampling that is at least 30 days after service of the
demand, unless the court for good cause shown has granted leave to
specify an earlier date. In an unlawful detainer action or other
proceeding under Chapter 4 (commencing with Section 1159) of Title 3
of Part 3, the demand shall specify a reasonable time for the
inspection, copying, testing, or sampling that is at least five days
after service of the demand, unless the court, for good cause shown,
has granted leave to specify an earlier date.
 (3) Specify a reasonable place for making the inspection, copying,
testing, or sampling, and performing any related activity.
 (4) Specify any inspection, copying, testing, sampling, or related
activity that is being demanded, as well as the manner in which that
activity will be performed, and whether that activity will
permanently alter or destroy the item involved.
 SEC. 7. Section 2031.040 of the Code of Civil Procedure is amended
to read:
 2031.040. The party making a demand for inspection, copying,
testing, or sampling shall serve a copy of the demand on the party to
whom it is directed and on all other parties who have appeared in
the action.
 SEC. 8. Section 2031.050 of the Code of Civil Procedure is amended
to read:
 2031.050. (a) In addition to the demands for inspection, copying,
testing, or sampling permitted by this chapter, a party may propound
a supplemental demand to inspect, copy, test, or sample any later
acquired or discovered documents, tangible things, land or other
property, or electronically stored information in the possession,
custody, or control of the party on whom the demand is made.
 (b) A party may propound a supplemental demand for inspection,
copying, testing, or sampling twice before the initial setting of a
trial date, and, subject to the time limits on discovery proceedings
and motions provided in Chapter 8 (commencing with Section 2024.010),
once after the initial setting of a trial date.
 (c) Notwithstanding subdivisions (a) and (b), on motion, for good
cause shown, the court may grant leave to a party to propound an
additional number of supplemental demands for inspection, copying,
testing, or sampling.
 SEC. 9. Section 2031.060 of the Code of Civil Procedure is amended
to read:
 2031.060. (a) When an inspection, copying, testing, or sampling
of documents, tangible things, places, or electronically stored
information has been demanded, the party to whom the demand has been
directed, and any other party or affected person, may promptly move
for a protective order. This motion shall be accompanied by a meet
and confer declaration under Section 2016.040.
 (b) The court, for good cause shown, may make any order that
justice requires to protect any party or other person from
unwarranted annoyance, embarrassment, or oppression, or undue burden
and expense. This protective order may include, but is not limited
to, one or more of the following directions:
 (1) That all or some of the items or categories of items in the
demand need not be produced or made available at all.
 (2) That the time specified in Section 2030.260 to respond to the
set of demands, or to a particular item or category in the set, be
extended.
 (3) That the place of production be other than that specified in
the demand.
 (4) That the inspection, copying, testing, or sampling be made
only on specified terms and conditions.
 (5) That a trade secret or other confidential research,
development, or commercial information not be disclosed, or be
disclosed only to specified persons or only in a specified way.
 (6) That the items produced be sealed and thereafter opened only
on order of the court.
 (c) The party or affected person who seeks a protective order
regarding the production, inspection, copying, testing, or sampling
of electronically stored information on the basis that the
information is from a source that is not reasonably accessible
because of undue burden or expense shall bear the burden of
demonstrating that the information is from a source that is not
reasonably accessible because of undue burden or expense.
 (d) If the party or affected person from whom discovery of
electronically stored information is sought establishes that the
information is from a source that is not reasonably accessible
because of undue burden or expense, the court may nonetheless order
discovery if the demanding party shows good cause, subject to any
limitations imposed under subdivision (f).
 (e) If the court finds good cause for the production of
electronically stored information from a source that is not
reasonably accessible, the court may set conditions for the discovery
of the electronically stored information, including allocation of
the expense of discovery.
 (f) The court shall limit the frequency or extent of discovery of
electronically stored information, even from a source that is
reasonably accessible, if the court determines that any of the
following conditions exist:
 (1) It is possible to obtain the information from some other
source that is more convenient, less burdensome, or less expensive.
 (2) The discovery sought is unreasonably cumulative or
duplicative.
 (3) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought.
 (4) The likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in
controversy, the resources of the parties, the importance of the
issues in the litigation, and the importance of the requested
discovery in resolving the issues.
 (g) If the motion for a protective order is denied in whole or in
part, the court may order that the party to whom the demand was
directed provide or permit the discovery against which protection was
sought on terms and conditions that are just.
 (h) Except as provided in subdivision (i), the court shall impose
a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully
makes or opposes a motion for a protective order, unless it finds
that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
 (i) (1) Notwithstanding subdivision (h), absent exceptional
circumstances, the court shall not impose sanctions on a party or any
attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as
the result of the routine, good faith operation of an electronic
information system.
 (2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
 SEC. 10. Section 2031.210 of the Code of Civil Procedure is
amended to read:
 2031.210. (a) The party to whom a demand for inspection, copying,
testing, or sampling has been directed shall respond separately to
each item or category of item by any of the following:
 (1) A statement that the party will comply with the particular
demand for inspection, copying, testing, or sampling by the date set
for the inspection, copying, testing, or sampling pursuant to
paragraph (2) of subdivision (c) of Section 2031.030 and any related
activities.
 (2) A representation that the party lacks the ability to comply
with the demand for inspection, copying, testing, or sampling of a
particular item or category of item.
 (3) An objection to the particular demand for inspection, copying,
testing, or sampling.
 (b) In the first paragraph of the response immediately below the
title of the case, there shall appear the identity of the responding
party, the set number, and the identity of the demanding party.
 (c) Each statement of compliance, each representation, and each
objection in the response shall bear the same number and be in the
same sequence as the corresponding item or category in the demand,
but the text of that item or category need not be repeated.
 (d) If a party objects to the discovery of electronically stored
information on the grounds that it is from a source that is not
reasonably accessible because of undue burden or expense and that the
responding party will not search the source in the absence of an
agreement with the demanding party or court order, the responding
party shall identify in its response the types or categories of
sources of electronically stored information that it asserts are not
reasonably accessible. By objecting and identifying information of a
type or category of source or sources that are not reasonably
accessible, the responding party preserves any objections it may have
relating to that electronically stored information.
 SEC. 11. Section 2031.220 of the Code of Civil Procedure is
amended to read:
 2031.220. A statement that the party to whom a demand for
inspection, copying, testing, or sampling has been directed will
comply with the particular demand shall state that the production,
inspection, copying, testing, or sampling, and related activity
demanded, will be allowed either in whole or in part, and that all
documents or things in the demanded category that are in the
possession, custody, or control of that party and to which no
objection is being made will be included in the production.
 SEC. 12. Section 2031.230 of the Code of Civil Procedure is
amended to read:
 2031.230. A representation of inability to comply with the
particular demand for inspection, copying, testing, or sampling shall
affirm that a diligent search and a reasonable inquiry has been made
in an effort to comply with that demand. This statement shall also
specify whether the inability to comply is because the particular
item or category has never existed, has been destroyed, has been
lost, misplaced, or stolen, or has never been, or is no longer, in
the possession, custody, or control of the responding party. The
statement shall set forth the name and address of any natural person
or organization known or believed by that party to have possession,
custody, or control of that item or category of item.
 SEC. 13. Section 2031.240 of the Code of Civil Procedure is
amended to read:
 2031.240. (a) If only part of an item or category of item in a
demand for inspection, copying, testing, or sampling is
objectionable, the response shall contain a statement of compliance,
or a representation of inability to comply with respect to the
remainder of that item or category.
 (b) If the responding party objects to the demand for inspection,
copying, testing, or sampling of an item or category of item, the
response shall do both of the following:
 (1) Identify with particularity any document, tangible thing,
land, or electronically stored information falling within any
category of item in the demand to which an objection is being made.
 (2) Set forth clearly the extent of, and the specific ground for,
the objection. If an objection is based on a claim of privilege, the
particular privilege invoked shall be stated. If an objection is
based on a claim that the information sought is protected work
product under Chapter 4 (commencing with Section 2018.010), that
claim shall be expressly asserted.
 SEC. 14. Section 2031.250 of the Code of Civil Procedure is
amended to read:
 2031.250. (a) The party to whom the demand for inspection,
copying, testing, or sampling is directed shall sign the response
under oath unless the response contains only objections.
 (b) If that party is a public or private corporation or a
partnership or association or governmental agency, one of its
officers or agents shall sign the response under oath on behalf of
that party. If the officer or agent signing the response on behalf of
that party is an attorney acting in that capacity for a party, that
party waives any lawyer-client privilege and any protection for work
product under Chapter 4 (commencing with Section 2018.010) during any
subsequent discovery from that attorney concerning the identity of
the sources of the information contained in the response.
 (c) The attorney for the responding party shall sign any responses
that contain an objection.
 SEC. 15. Section 2031.260 of the Code of Civil Procedure is
amended to read:
 2031.260. (a) Within 30 days after service of a demand for
inspection, copying, testing, or sampling, the party to whom the
demand is directed shall serve the original of the response to it on
the party making the demand, and a copy of the response on all other
parties who have appeared in the action, unless on motion of the
party making the demand, the court has shortened the time for
response, or unless on motion of the party to whom the demand has
been directed, the court has extended the time for response.
 (b) Notwithstanding subdivision (a), in an unlawful detainer
action or other proceeding under Chapter 4 (commencing with Section
1159) of Title 3 of Part 3, the party to whom a demand for
inspection, copying, testing, or sampling is directed shall have at
least five days from the date of service of the demand to respond,
unless on motion of the party making the demand, the court has
shortened the time for the response, or unless on motion of the party
to whom the demand has been directed, the court has extended the
time for response.
 SEC. 16. Section 2031.270 of the Code of Civil Procedure is
amended to read:
 2031.270. (a) The party demanding inspection, copying, testing,
or sampling and the responding party may agree to extend the date for
the inspection, copying, testing, or sampling or the time for
service of a response to a set of demands, or to particular items or
categories of items in a set, to a date or dates beyond those
provided in Sections 2031.030, 2031.210, 2031.260, and 2031.280.
 (b) This agreement may be informal, but it shall be confirmed in a
writing that specifies the extended date for inspection, copying,
testing, or sampling, or for the service of a response.
 (c) Unless this agreement expressly states otherwise, it is
effective to preserve to the responding party the right to respond to
any item or category of item in the demand to which the agreement
applies in any manner specified in Sections 2031.210, 2031.220,
2031.230, 2031.240, and 2031.280.
 SEC. 17. Section 2031.280 of the Code of Civil Procedure is
amended to read:
 2031.280. (a) Any documents produced in response to a demand for
inspection, copying, testing, or sampling shall either be produced as
they are kept in the usual course of business, or be organized and
labeled to correspond with the categories in the demand.
 (b) The documents shall be produced on the date specified in the
demand pursuant to paragraph (2) of subdivision (c) of Section
2031.030, unless an objection has been made to that date. If the date
for inspection has been extended pursuant to Section 2031.270, the
documents shall be produced on the date agreed to pursuant to that
section.
 (c) If a party responding to a demand for production of
electronically stored information objects to a specified form for
producing the information, or if no form is specified in the demand,
the responding party shall state in its response the form in which it
intends to produce each type of information.
 (d) Unless the parties otherwise agree or the court otherwise
orders, the following shall apply:
 (1) If a demand for production does not specify a form or forms
for producing a type of electronically stored information, the
responding party shall produce the information in the form or forms
in which it is ordinarily maintained or in a form that is reasonably
usable.
 (2) A party need not produce the same electronically stored
information in more than one form.
 (e) If necessary, the responding party at the reasonable expense
of the demanding party shall, through detection devices, translate
any data compilations included in the demand into reasonably usable
form.
 SEC. 18. Section 2031.285 is added to the Code of Civil Procedure,
to read:
 2031.285. (a) If electronically stored information produced in
discovery is subject to a claim of privilege or of protection as
attorney work product, the party making the claim may notify any
party that received the information of the claim and the basis for
the claim.
 (b) After being notified of a claim of privilege or of protection
under subdivision (a), a party that received the information shall
immediately sequester the information and either return the specified
information and any copies that may exist or present the information
to the court conditionally under seal for a determination of the
claim.
 (c) (1) Prior to the resolution of the motion brought under
subdivision (d), a party shall be precluded from using or disclosing
the specified information until the claim of privilege is resolved.
 (2) A party who received and disclosed the information before
being notified of a claim of privilege or of protection under
subdivision (a) shall, after that notification, immediately take
reasonable steps to retrieve the information.
 (d) (1) If the receiving party contests the legitimacy of a claim
of privilege or protection, he or she may seek a determination of the
claim from the court by making a motion within 30 days of receiving
the claim and presenting the information to the court conditionally
under seal.
 (2) Until the legitimacy of the claim of privilege or protection
is resolved, the receiving party shall preserve the information and
keep it confidential and shall be precluded from using the
information in any manner.
 SEC. 19. Section 2031.290 of the Code of Civil Procedure
is amended to read:
 2031.290. (a) The demand for inspection, copying, testing, or
sampling, and the response to it, shall not be filed with the court.
 (b) The party demanding an inspection, copying, testing, or
sampling shall retain both the original of the demand, with the
original proof of service affixed to it, and the original of the
sworn response until six months after final disposition of the
action. At that time, both originals may be destroyed, unless the
court, on motion of any party and for good cause shown, orders that
the originals be preserved for a longer period.
 SEC. 20. Section 2031.300 of the Code of Civil Procedure is
amended to read:
 2031.300. If a party to whom a demand for inspection, copying,
testing, or sampling is directed fails to serve a timely response to
it, the following rules shall apply:
 (a) The party to whom the demand for inspection, copying, testing,
or sampling is directed waives any objection to the demand,
including one based on privilege or on the protection for work
product under Chapter 4 (commencing with Section 2018.010). The
court, on motion, may relieve that party from this waiver on its
determination that both of the following conditions are satisfied:
 (1) The party has subsequently served a response that is in
substantial compliance with Sections 2031.210, 2031.220, 2031.230,
2031.240, and 2031.280.
 (2) The party's failure to serve a timely response was the result
of mistake, inadvertence, or excusable neglect.
 (b) The party making the demand may move for an order compelling
response to the demand.
 (c) Except as provided in subdivision (d), the court shall impose
a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully
makes or opposes a motion to compel a response to a demand for
inspection, copying, testing, or sampling, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
If a party then fails to obey the order compelling a response, the
court may make those orders that are just, including the imposition
of an issue sanction, an evidence sanction, or a terminating sanction
under Chapter 7 (commencing with Section 2023.010). In lieu of or in
addition to this sanction, the court may impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010).
 (d) (1) Notwithstanding subdivision (c), absent exceptional
circumstances, the court shall not impose sanctions on a party or any
attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as a
result of the routine, good faith operation of an electronic
information system.
 (2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
 SEC. 21. Section 2031.310 of the Code of Civil Procedure is
amended to read:
 2031.310. (a) On receipt of a response to a demand for
inspection, copying, testing, or sampling, the demanding party may
move for an order compelling further response to the demand if the
demanding party deems that any of the following apply:
 (1) A statement of compliance with the demand is incomplete.
 (2) A representation of inability to comply is inadequate,
incomplete, or evasive.
 (3) An objection in the response is without merit or too general.
 (b) A motion under subdivision (a) shall comply with both of the
following:
 (1) The motion shall set forth specific facts showing good cause
justifying the discovery sought by the demand.
 (2) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040.
 (c) Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or on or
before any specific later date to which the demanding party and the
responding party have agreed in writing, the demanding party waives
any right to compel a further response to the demand.
 (d) In a motion under subdivision (a) relating to the production
of electronically stored information, the party or affected person
objecting to or opposing the production, inspection, copying,
testing, or sampling of electronically stored information on the
basis that the information is from a source that is not reasonably
accessible because of the undue burden or expense shall bear the
burden of demonstrating that the information is from a source that is
not reasonably accessible because of undue burden or expense.
 (e) If the party or affected person from whom discovery of
electronically stored information is sought establishes that the
information is from a source that is not reasonably accessible
because of the undue burden or expense, the court may nonetheless
order discovery if the demanding party shows good cause, subject to
any limitations imposed under subdivision (g).
 (f) If the court finds good cause for the production of
electronically stored information from a source that is not
reasonably accessible, the court may set conditions for the discovery
of the electronically stored information, including allocation of
the expense of discovery.
 (g) The court shall limit the frequency or extent of discovery of
electronically stored information, even from a source that is
reasonably accessible, if the court determines that any of the
following conditions exists:
 (1) It is possible to obtain the information from some other
source that is more convenient, less burdensome, or less expensive.
 (2) The discovery sought is unreasonably cumulative or
duplicative.
 (3) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought.
 (4) The likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in
controversy, the resources of the parties, the importance of the
issues in the litigation, and the importance of the requested
discovery in resolving the issues.
 (h) Except as provided in subdivision (j), the court shall impose
a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully
makes or opposes a motion to compel further response to a demand,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
 (i) Except as provided in subdivision (j), if a party fails to
obey an order compelling further response, the court may make those
orders that are just, including the imposition of an issue sanction,
an evidence sanction, or a terminating sanction under Chapter 7
(commencing with Section 2023.010). In lieu of or in addition to that
sanction, the court may impose a monetary sanction under Chapter 7
(commencing with Section 2023.010).
 (j) (1) Notwithstanding subdivisions (h) and (i), absent
exceptional circumstances, the court shall not impose sanctions on a
party or any attorney of a party for failure to provide
electronically stored information that has been lost, damaged,
altered, or overwritten as the result of the routine, good faith
operation of an electronic information system.
 (2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
 SEC. 22. Section 2031.320 of the Code of Civil Procedure is
amended to read:
 2031.320. (a) If a party filing a response to a demand for
inspection, copying, testing, or sampling under Sections 2031.210,
2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit
the inspection, copying, testing, or sampling in accordance with
that party's statement of compliance, the demanding party may move
for an order compelling compliance.
 (b) Except as provided in subdivision (d), the court shall impose
a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully
makes or opposes a motion to compel compliance with a demand, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
 (c) Except as provided in subdivision (d), if a party then fails
to obey an order compelling inspection, copying, testing, or
sampling, the court may make those orders that are just, including
the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to that sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010).
 (d) (1) Notwithstanding subdivisions (b) and (c), absent
exceptional circumstances, the court shall not impose sanctions on a
party or any attorney of a party for failure to provide
electronically stored information that has been lost, damaged,
altered, or overwritten as the result of the routine, good faith
operation of an electronic information system.
 (2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
 SEC. 23. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
 In order to eliminate uncertainty and confusion regarding the
discovery of electronically stored information, and thereby minimize
unnecessary and costly litigation that adversely impacts access to
the courts, it is necessary for this act to take effect immediately.
eDiscovery California, Law

e-Discovery California: AB 5: End of Chapter!

J0427617 Well, the day has arrived.  We've moved from where we were to where we are.  On June 29th 2009, AB 5 was "Approved" by the Governor and Chaptered by the Secretary of State (SOS).

What does that mean?  According to the California SOS web site, "The Secretary of State assigns an Assembly or Senate bill (bill) a number
known as the chapter number; when the Governor approves, signs, dates, and
deposits the bill with the Secretary of State. This copy is the official record
and law of the State."

Here's the official roll.  So, AB 5 is now officially known as "Chapter 5, Statutes of 2009".

Based on the substantial increase in traffic to my corporate web site this past couple of weeks, I think I'm about to get busy.

Fasten your seatbelts.  It's going to be a bumpy night!

eDiscovery California, Law

e-Discovery California: AB 5: Pass! To Consent Calendar

J0427752 This will probably never happen again.  I was actually up early and sitting at the PC when my latest update on California AB 5 arrived in my inbox.

Yes, that actually is yours truly on the left – hey; I told you I'm not a morning person…

The bill passed its first reading in the senate yesterday (you'll recall I posted on this hearing earlier), will have its second reading today, then it's on to the consent calendar for the third and final reading (explanation here).

Will the third time be a charm?  Stay tuned!