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…
