…and eventually, I’ll write an in-depth analysis of California AB 5 and contrast it with the Federal Rules. But, take a look at this fine analysis from Law.com regarding how California will deal with Zubulake ‘accessible vs. inaccessible’ ESI and how it contrasts with the Federal rules.
Finished reading? Great. Now let me tell you why nothing in the analysis rattles me. You should have been treating your ESI as accessible all along. Here’s why:
The law is all about exceptions. Everyone knows the general rule, but ultimately the facts dictate whether an exception is in order. At Sony Pictures in 1997, we successfully fought off a request for ESI in a California court because we made the case that it was accessible, but at punitive cost because we’d long since retired that particular backup system and complying would have required a $250,000 outlay (there was no product like Index Engines around in 1997).
I had a very smart professor in law school. His advice was to always assume the worst-case scenario, then work backwards. It’s actually a very logical approach. Yes, the flood may be that bad, yes, the stock market may fall that much and yes, your adversary may make a persuasive argument to the judge.
Be an actuary. They look at everything as ‘cost vs. risk’. Which will likely cost more, paying to protect or paying after the fact? A young PC user asked me the other day, “Why do I need a firewall? What are the chances that I will be the one that will be hacked?” My answer was, “If you want to gamble, that’s your call, but here’s a short list of things that could happen if you’re the unlucky one.”
Gamble if you like; but be prepared to face the consequences.