The California Judicial Council proposed amendments for the California Rules of Court with regard to electronic discovery (ediscovery) in 2005 and 2006. However, because amendments to the federal rules were scheduled to be released in 2006, the state of California decided to delay the implementation of their own amendments. This was done in order to observe how the federal rules of civil procedure (frcp) would be implemented and to determine what kind of guidance would be provided regarding how to handle this new distinction in discovery. The 2009 California changes to law with regard to esi. California, on the other hand, was falling behind the other states in its efforts to bring its own regulations into conformity with the new federal regulations. In the process of defining its regulations regarding esi, a state that is a leader in technology and the home of Silicon Valley had slipped behind almost twenty other states, putting the legal landscape in the western region in a condition of considerable disorder. The effort to adopt new regulations (assembly bill 926) in 2008 was unsuccessful because Arnold Schwarzenegger, who was serving as governor at the time, used his veto power on September 27 of that year. The reason that was given was that he was “only signing bills that are the highest priority for California.” By this, he meant that he wanted California to concentrate primarily (and almost solely) on its budget process, and he vetoed the majority of legislation that did not deal directly with the budget. “eliminate uncertainty and confusion regarding the discovery of electronically stored information” (“esi”) and “minimize unnecessary and costly litigation that adversely impacts access to the courts,” that is the goal of the California Electronic Discovery Act, which was passed by the state legislature. The California Judicial Council, which was desperate for clarification, once again recommended changes to the civil code in the state of California. Due to the fact that it was presented as an urgent action, the law was scheduled to go into effect as soon as it was signed. In spite of the fact that budget discussions were experiencing the same level of stagnation as they had in 2008 (and in a great number of subsequent years), Governor Schwarzenegger signed the measure, and on June 29, 2009, it received force of law. There were various changes made to the California Rules of Court as a result of the California Electronic Discovery Act. These changes brought the state’s rules to a degree that was comparable to the federal modifications that were made in 2006, but there were also notable differences. There is a possibility that further adjustments may be necessary as quantum computing becomes more widespread… A party may object to the discovery of electronic evidence in California “on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense,” according to the new rules that have been implemented in the state. These rules provide clarification regarding what constitutes “reasonably accessible esi.” Presently, it is necessary for the party that is responding to “identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible” and, as a result, “preserve any objections it may have relating to that electronically stored information.” An interesting aside is that the law that was vetoed in 2008 did not contain this clarification to deal with the issue of resisting discovery. In contrast to the state standards, the federal guidelines declare that “a party is not required to give discovery of electronically stored material from sources that the party describes as not properly accessible because of excessive hardship or expense.” When it comes to esi, it would seem that the norms of the state make it somewhat more difficult to fight the process of discovery and production. As a result of the proliferation of technologies in the fields of e-discovery and computer forensics, the creation of esi is becoming more uncomplicated in many instances. This makes it more challenging to resist production in some instances. Instead of using the clawback provisions in rule 26 of the frcp to protect “privileged information,” the ccp provides that if a producing party accidentally produces privileged information, it may notify the receiving party. The receiving party is then required to “immediately” sequester the information and either return it or present it under seal to the court within thirty days for the purpose of determining whether or not the privilege issues have been resolved. Very similar to the frcp, the ccp gives a court the authority to restrict the amount of esi that may be discovered or the frequency with which it can be discovered if the court determines that any of the following requirements are present: is it possible to obtain the esi from a different source that is more convenient, less costly, or less stressful than the original source. under the condition that the esi is too cumulative or redundant. whether the person making the request has been given sufficient time and opportunities to find the information that is being requested. if it is probable that the burden will be greater than the reward. According to the ccp, the responding party has the explicit right to object to or petition for a protective order on the grounds that the esi that is being sought is “not fairly accessible because of excessive difficulty or cost because of the circumstances.” Whenever there is an objection (rather than a protective order), there must be a written response that identifies the “types or categories of sources” that it asserts are not reasonably accessible. The term “accessibility” is primarily determined by the expense or burden of converting, restoring, or manipulating the data in order to produce it in a form that is reasonable. As of right now, the respondent is the one who is responsible for proving that a certain esi is not fairly accessible. This gives the impression (to this author) that the court is more inclined to consider the data to be “accessible.” As long as the esi was lost, damaged, changed, or overwritten as a consequence of the ordinary, good faith operation of an electronic information system, the ccp makes penalties for destroyed data a bit less probable. This is the case as long as the esi was lost, damaged, altered, or overwritten. It is possible that penalties will not be enforced in the same manner as they would be in the case of intentional destruction or spoliation of electronic evidence if the evidence was lost due to an accident or a mistake. The requesting party has the ability to specify the form of production, within certain limits, just like the federal rules do. However, if the requesting party does not specify the form of production, the ccp stipulates that the responding party must produce the esi in the form in which it is typically maintained or in a form that is reasonably usable. More than one form of it is not required to be produced by it. Lastly, according to the new California guidelines, if it is fairly expected that esi will be a part of the case, the parties are required to meet and confer within forty-five days prior to the case, although first case management sessions might be performed within thirty days. When considering the fact that every document begins on a computer as information that is electronically saved, the 45-day rule seems to be applicable in an ever-increasing number of instances. Sections 2016020, 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 were among the sections of the California Code of Civil Procedure that were modified. Additionally, sections 1985.8 and 2031.285 were added to the code. It is necessary for the rules of civil process to continue to evolve in order to keep up with the ever-increasing pace of technological advancements in the legal system. This is necessary in order to ensure that the rules remain relevant to the cases that are brought before the court. There is little doubt that the modifications that were mentioned before are not the final ones. As a matter of fact, discussions are already taking place on modifications that may be implemented in December of 2015. Some of the modifications that are being suggested would make it much more difficult to implement punishment for the loss of evidential esi. In the subsequent part of this series, we will talk about some of the upcoming proposed revisions to the civil code of the state of California. Stephen Burgess is a technology writer and speaker who works independently. He is also a practicing computer forensics specialist and the principal of Burgess Forensics. Additionally, he is a contributor to the text “scientific evidence in civil and criminal cases,” which is in its fifth edition and was written by moenssens and others. It is possible to get in touch with Mr. Burgess by calling Burgess Forensics or sending an email to steve@burgessforensics.com.
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