Is All ESI Accessible in California?

Is All ESI Accessible in California?

On June 29, 2009, Governor Schwarzenegger signed into law California’s Electronic Discovery Act, which is effective immediately.  For the most part, the recent eDiscovery amendments to the California Code of Civil Procedure track the federal rules.  For example, similar to the federal rules, the California rules use a broad definition of “electronically stored information,” allow requesting parties to inspect, copy and sample ESI, and require both parties to meet and confer regarding ESI discovery issues early in the litigation (in CA this must be done 45 days before a case management conference compared with 21 days under the federal rules).

However, the California amendments depart from the federal rules in a few distinct and important ways.  Lawyers practicing in California must be aware of these changes because failing to adhere to them could result in dire consequences for their clients.

There are two other major ways in which the California rules do not mirror the federal rules.  First, although the California rules set forth certain conditions for limiting the scope of electronic discovery in a fashion similar to the federal rules, a key variation among the rules is that California’s start with the presumption that all ESI is accessible.  Where FRCP 26(b)(2)(B) explicitly limits discovery seeking inaccessible ESI, the California rule shifts the burden to the responding party.  After receiving a request for production of ESI, the responding party must specifically object to the production of ESI on grounds that the information is inaccessible.  Further, if the requesting party moves to compel production, it is the responding party who bears the burden of proving that the requested ESI is in fact, inaccessible.

Second, and perhaps more importantly, the California rules require parties to identify and detail their inaccessibility objections in their responses to discovery requests, regardless of whether they intend to move for a protective order.  Failing to adhere to this rule could result in the responding party’s waiver of inaccessibility as a basis not to produce ESI.  Because the California rules require a detailed response as to why certain information is inaccessible, it is important for attorneys to have a comprehensive understanding of the client’s information technology systems. The earlier an attorney can familiarize his or her self with the client’s IT systems, the better prepared he or she will be to explain what information is inaccessible when served a request to produce documents.  

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