2009 CHANGES IN
CALIFORNIA DISCOVERY
RULES
The California Electronic Discovery Act
Batya Swenson
E-discovery Task Force
bswenson@hansonbridgett.com
BACKGROUND
• Federal courts and 20+ states
have already codified discovery
rules for electronically stored
information (“ESI”)
• ~95% of all business data
• 100 billion
California’s E-Discovery Rules
• Let’s just call it the EDA for now
(Electronic Discovery Act)
• The EDA modifies existing discovery
provisions to specifically account for ESI
discovery
• EDA's provisions set out the manner for
requesting, responding to and producing
ESI, including subpoenas for ESI.
Been there….
• Since 2006, federal courts have
specifically addressed the
discovery of ESI
• EDA is similar to the federal rules
• EDA establishes ESI’s importance
in state court litigation
THE EDA
• Why is it important to you?
• What key concepts may affect you?
• What’s new and different?
WINNING CASE AND
AVOIDING SANCTIONS
• Attorney is often an outsider and needs your help
– New client, New department, New type of case
– Gathering evidence, imposing hold, responding to discovery
• Sanctions mandatory as always for discovery abuses
– No more excuses for failure to manage and preserve ESI
– Monetary, Evidence, Issue Sanctions
• NEW - Safe Harbor Rule
– Does not avoid preservation obligation
– Routine, good faith operations of IT systems
– Retention policy/program
• Discrepancy or consistency in implementation?
– Corruption of data
PARTIES MUST ACT EARLY
TO AVOID LOST ESI
•
Not a new concept in discovery but more developed and codified with respect to
application to ESI
•
Where Records Managers are most likely very involved
•
Preservation Obligation
– “Reasonable anticipation of litigation”
– What does this mean? Claims; Demand letters; Complaint
– Who decides if the obligation has been triggered?
– Be proactive – no sanctions for too much care and attention
•
Litigation Holds
– Initial Analysis (Relevant ESI/Custodians/Sources/BackUp/Retention Program)
– Implementation – Who’s the point person
– Communication and Buy In – Confirmation by staff
– Oversight – Duration of litigation
– Attorney’s Role – As required by courts
NEW - FORM OF PRODUCTION
•
Form of ESI identified in discovery
Result: requests more sophisticated
requests in state court matters
•
RESPONSES
As requested OR
Ordinarily maintained & reasonably usable
•
OBJECTIONS: “must identify the types or
categories of sources of ESI that it asserts
are not reasonably accessible”
NEW - EARLY MEET AND
CONFER REQUIREMENT
• Pre-CMC Meet and Confer Conference Topics
– Preservation
– Form(s)
– Timing
– Scope
– Privilege (Clawback Agreement)
– Confidentiality (Protective Order)
– Cost allocation
– Catch-all; Discovery plan (Phased)
NEW - THE STANDARD
WHAT COUNSEL WILL FACE IN A DISCOVERY MOTION
•
•
•
•
NOT REASONABLY ACCESSIBLE – BURDEN OF PROOF
“UNDUE BURDEN OR COST”: BALANCING TEST
– Less expensive, more convenient source
– Unreasonably cumulative or duplicative
– Ample opportunity to obtain the information through discovery
– Burden/expense v. benefit
• amount in controversy
• parties’ relative resources
• importance of the issues in the litigation
• importance of the requested discovery in resolving the issues
YOUR ROLE
– Helping counsel gather the facts
– Tracking investment of staff time and other hard expenses
– Declaration under penalty of perjury
– PMK Depositions
COURT CAN ORDER PRODUCTION BUT REALLOCATE COSTS
NEW - SUBPOENAS
• Issuing party must take reasonable steps
to avoid undue burden or expense on nonparty
• Similar rules in terms of form apply
• Responses in requested form
• Burden still on objecting party on issue of
reasonable accessibility
• Court can order production but reallocate costs
– Track expenses
BEST PRACTICES
FOR RECORDS MANAGERS
• Will vary with size and type of organization
– subpoenas, repeat litigation, other responsible staff and support
• Implement retention policy if it exists
– consult with counsel about the policy or writing one
• Inform yourself of IT structure, data management and
destruction processes
• Educate and assist counsel
• Act early and stay invested when a matter arises
• Understand scope of matter, key players & potential
exposures
• Communicate with internal case contact, IT and/or
attorney
• Monitor implementation of hold internally
EXAMPLES
• Back-up tape recycled and Inbox of former
employee lost
• Key employee laptop hard drive not
searched
• Text Messages not captured
• Automatic email deletion program