A “Blog-iography”: Best of Commentary on New California State-Court E-Discovery Rules

August 1, 2009 6:11 AM - By Seth | 2 Comments

After several years of drafting, debate, and hold-ups due to the budget situation, California’s state-court rules on electronic discovery have finally been signed into law. The rules, which make up the California Electronic Discovery Act (CEDA, also sometimes referred to as AB5) are largely modeled on the e-discovery provisions of the Federal Rules of Civil Procedure and also on the Uniform Rules Relating to the Discovery of Electronically Stored Information promulgated by the National Conference of Commissioners of Uniform State Laws.

Much has already been written in the way of commentary on these new rules, both in blogs and publically disseminated law firm publications. This post, like the “historiographies” that I read in college – collecting and commenting on what had been written on a particular historical event – tries to capture the best of the commentary so far on the key features, failings, and anticipated impact of AB5.

The Same, But Different. A common theme of blog commentary, such as this post from Perry Segal of E-Discovery Insights, is that the California rules share many similarities with the federal rules, but that there are important differences. For example, like the federal rules, the California rules broadly define discoverable ESI, and address the issue of form of production, permitting the requesting party to specify the form in which ESI should be produced, and protecting producing parties from having to produce ESI in more than one form. However, as noted by Joshua Gilliland (aka BowTie Law Blogger) in this presentation, available on his blog, the California rules lack the federal rules’ Advisory Committee notes on, among other things, what “reasonably usable” and other terms mean. And, unlike the federal rules, and as is generally true in California, there are no mandatory disclosures, and no explicit treatment of the scope of waiver upon inadvertent disclosure as in FRE 502, as pointed out in this post by Perry Segal and treated in depth in this article by Fenwick & West’s Robert D. Brownstone and Michael A. Sands.

Meet and Confer – Eventually. The federal rules create a “meet and confer” requirement with regard to discovery of ESI at the outset of litigation. The California statute does not have this kind of automatic requirement, but the California Rules of Court were amended in mid-August to include a discussion of electronic discovery to the mandatory meet and confer before the initial case management conference. And, as discussed in this client alert from Wes Billingsley of Seyfarth Shaw, the California discovery rules require that the parties meet and confer prior to bringing any discovery issue to the court – a requirement of the federal rules as well (see FRCP 37(a)(1)). The mandatory early conference of counsel was heralded as a key to accomplishing of the important goals of federal Rule 26(f), which is to identify disputes early, before the parties have entrenched their positions, developed significant animosity, or become subject to looming deadlines. As Joshua M. Briones and Anahit Tagvoryan of DLA Piper argue in their excellent chart comparing the California rules with the federal rules, an early meet and confer to try to control costs and avoid disputes down the road is imperative.

Safe Harbor – or Treacherous Shoals of Judicial Interpretation? The California rules also include a more explicit and broader “safe harbor” than was created by Federal Rule of Civil Procedure 37(c) that protects a party from being sanctioned if ESI is “lost, damaged, altered, or overwritten as the result of the routine good faith operation of an electronic information system.” The federal rule only protects data that is “lost.” As Perry Segal points out in this post, the California safe harbor provision, like the federal rules contains the caveat “absent exceptional circumstances, ” which is not a defined term and may result in judicially-created rules that overwhelm the actual intent of the rule.

Accessing the Inaccessible. The part of the proposed rules that received the most attention (as in this post from Ralph Losey) during the drafting process was the portion dealing with ESI that is not easily accessible. The California rules as originally drafted appeared to require that a party objecting to discovery from a particular source had to move for a protective order in order to avoid having to produce the information. This was in contrast to the federal rules, which lay out a procedure for objections to be made outside of court and put the burden on the requesting party to bring a motion to compel. As enacted, the California rules make it fairly clear that the producing party has the option of either moving for a protective order, or simply making an objection in the response to the discovery request. Despite this change commenters such as David Hickey and Veronica Harris of Winston & Strawn, writing in Law Technology News, believe that the California rules maintain a presumption that all ESI is discoverable and thus are still in “stark contrast — if not technically then in theory and perspective” to a presumption in the federal rules that some sources of ESI are not discoverable because they are inaccessible. Hickey and Harris argue that to the extent that the federal presumption is based on the Zubulake line of cases, the California rules actually represent a more modern take on the issue because sources that were hard to reach in 2003 are now more technologically “accessible.” And despite the fact that the comments to the new rules state that the intent is not to require a motion for protective order many, like eDiscoTECH’s Gregory J. Krabacher, believe that the rules will result in a motion for protective order “every time a large corporation is served with a discovery request.”

Another related issue where the California rules differ from the federal rules is cost-shifting. As Billingsley points out in his article, the California courts since Toshiba v. Superior Court in 2004 have mandated cost shifting for ESI that requires costly “translation” in order to become reasonably usable – in other words, data that is not readily accessible, such as backup tapes. This rule was codified into statute. The new California rules maintain the Toshiba rule. Billingsley argues convincingly, however, that a requesting party offers may not be entitled to discovery of difficult-to-access data even if it pays for the cost of translating data because under the new rules (like the federal rules) the court may deny discovery of the data altogether on the basis that it is not reasonably accessible, a standard that factors in more than just cost.

Why Should You Care? California’s effort to enact e-discovery rules will inform, for better or worse, other ongoing efforts to enact state-level rules, such as the ongoing effort to push through such rules in Washington. Also, California’s state courts generate case law at a pace unmatched by virtually any other state due to its size (and, one might argue, the litigiousness of its business community) – meaning that we may soon have California state case law joining federal trial court case law to cite when litigating ESI issues. Understanding how California’s rules are different from the federal rules will be important in assessing whether that case law provides applicable guidance. Finally, as Perry Segal articulates, electronic discovery is a business cost that can have a serious impact on the financial viability of smaller companies; if the widespread adoption of electronic discovery in California state courts proves to increase the already-incredible costs of litigating business disputes, you can be sure that the e-discovery naysayers will again raise a cry to slow the movement of law practice into the 21st century.