The Complex Litigator is here at CAALA, bringing you information selected from the best (my opinion) that the conferences have to offer. First up is e-discovery developments presented by the Hon. Lee Edmon.
- The scope of e-discovery in California will soon be comparable to the scope allowed by the Federal Rules. Judge Edmon suggests that practitioners start looking at federal cases for guidance.
- The demanding party will be able to demand the format of a production, including in native format, pdf, tiff, etc. (CCP section 2031.030(a)(2).)
- Protective Orders shift the burden onto the objecting party to show that information is from a source that is not reasonably accessible because of undue burden or expense. The parties must meet and confer. Judge Edmon believes that these "meet and confers" will be very important: learn how and where documents are stored so that you know the cost of compelling the production. You may have to do discovery specifically for the purpose of deciding whether data is inaccessible, the cost of retrieving it, and options.
- Even if a party establishes that Electronically Stored Information (ESI) is unavailable due to the burden, the Court can still order the production if the requesting party establishes good cause for production.
- Courts can limit ESI discovery if information is available from alternative sources.
- The new law will allow a safe harbor for ESI inadvertently destroyed through the normal operation of an electronic system.
- Send a preservation letter regarding ESI to the opposing party at the earliest opportunity to do so.
- Responses: If no format is specified in a demand, the producing party can specify the form, including form in which it is kept and a form that is reasonably usable. Federal cases have held that placing production in a form that is not text-searchable is insufficient. If a party objects that requested information is not reasonably accessible, the party must specify details as to why.
- Data translation costs provision, CCP section 2031.280(e), allows responding party to translate, at requesting party's expense, productions into a reasonably usable format.
- In the case of inadvertent production of privileged material, a new procedure will require prompt notification to the requesting party of the inadvertent production. If the requesting party claims waiver, the requesting party will have to move within 30 days to retain the material and adjudicate the claim of waiver.
- Many of these new procedures will also apply to subpoenas for ESI. To protect third parties, courts and requesting parties must try to
- CRC Rule 3.724 will now require the initial conference of counsel to address topics regarding conferring about ESI issues (form of production, clawback provisions, protection issues, and allocation of costs).
- Judge Edmon believes that the new ESI provisions are going to be very complicated for Courts to apply.
- If these measures are implemented, we will probably see them on January 1, 2008 (law was delayed by California budget crisis issues).
I will try to update this post later to elaborate on some of the points raised by Judge Edmon. Please excuse any typos as I post from a conference ballroom.