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…

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