Rules Go Into Effect Immediately.
Because discovery disputes can carry monetary sanctions (including attorney’s fees), we alert readers to the fact that effective June 29, 2009, California has new statutory provisions relating to electronic discovery. Assembly Bill No. 5 adds Code of Civil Procedure sections 1985.8 and 2031.285 as well as amends 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.
Although many sections mirror federal e-discovery rules, there are differences. First, because state courts generally do not have early meeting requirements, there are no analog provisions from the federal rules that have been incorporated into the new state provisions. Second, responding parties can object to production of records that they deem inaccessible so long as the categories of protected information are specified. Third, the new state provisions expand “safe harbor” protections to responding parties who have lost, damaged, altered, or overwritten data as the result of routine, good faith operation of an electronic information system. (In comparison, federal rules only protect deleted data under the “safe harbor.”) Also, the subpoenaed party must bear the expense of providing the data in reasonably usable form, although the subpoenaing party will have to bear the expenses of translating data compilations, through detection devices, into a reasonably usable form.
If an in-house attorney signs a response for a party, that party waives any lawyer-client privilege and word product protection concerning the identity of the information sources contained in the response to document requests.
In cases where privileged information is inadvertently produced during electronic discovery, the asking party must either return the information to the opponent or sequester the information so the court can rule on the privileges in a sealed in camera proceeding.
The new rules also have a provision to address situations where there is a waiver of a privilege by a responding party’s failure to timely object. If a response is substantially compliant and there is a showing of mistake, inadvertence or excusable neglect, a court can grant relief from a past waiver.
New section 2031.310(h) does have a mandatory sanctions provision applicable to the discovery motion loser unless the court finds that the loser acted with substantial justification or other circumstances make the imposition of a sanction unjust. This means case law will be evolving on the application of this sanction in e-discovery cases; so, stay tuned as the jurisprudence develops!