California Joins Other States in Directly Addressing Electronic Evidence Issues

California recently joined approximately thirty other states in deciding to amend its Code of Civil Procedure to more directly address electronic evidence.  After a rocky start and a veto by Governor Schwarzenegger, the California Electronic Discovery Act (the “Act”) was finally signed into law in June of this year.  Given the urgency of the matter, the Act became effective immediately.  Its final form closely tracks the 2006 amendments to the Federal Rules of Civil Procedure relating to electronic evidence.  Among other things, the Act does the following:

• Establishes procedures for obtaining discovery of a wide range of electronically stored information (i.e., any information stored in an electronic medium);
• Permits the parties to agree to extend the date for inspection, copying, testing, or sampling beyond those provided in specified provisions;
• The court may limit discovery if the likely burden or expense of the proposed discovery “outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues;”
• Provides that if a party responding to a demand for production of electronic evidence objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information. In general if a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party would be required to produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable, but need not produce the same electronically stored information in more than one form;
• Sets forth procedures for requesting and objecting to the form(s) of production of electronic evidence;
• Creates a safe harbor for electronic evidence that has been lost, damaged, altered, or overwritten as a result of “the routine, good faith operation of an electronic information system;”
• It permits the producing party to object to the production of electronic evidence from a source that is not reasonable accessible because of undue burden or expense,  but the objecting party shall bear the burden of demonstrating such unreasonableness;
• If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery;

• In the event privileged information is inadvertently produced, the disclosing party can notify the receiving party and the receiving party must immediately “sequester the information and either return the specified information and any copies that may exist” or present the information for court review.