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…