California Governor Signs into Law New Electronic Discovery Act

On June 29, 2009, California Governor Arnold Schwarzenegger signed into law California’s Electronic Discovery Act.  The new law, which became effective on June 29, 2009, establishes new procedures for parties requesting production to obtain discovery of electronically stored information (ESI) and offers, for the first time, specific definitions of what constitutes electronically stored information.  Other key provisions of the Act include:

1. Requesting Party Can Specify the Form of Production – Under the new law, the party requesting production of ESI can specify the form in which the responding party must produce the requested information.  If however, the form is not specified in the request for production, the responding party must produce the ESI either in the form that it is ordinarily maintained or in a form that is reasonably usable.
2. Discovery of Inaccessible Information – The Act permits parties to seek discovery of ESI that is from a source that is not reasonably accessible and unlike the federal rules, the burden is on the responding party to bring a motion for a protective order or to make written objections to such a request, i.e., that the requested information is from a source that is not reasonably accessible because of undue burden or expense.
3. No Sanctions for Lost, Damaged, or Altered Data – Absent exceptional circumstances, the Act prohibits the court from imposing sanctions on a party for failure to provide ESI that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.
4. Subpoenas – The Act expressly provides for the use of subpoenas to obtain ESI from nonparties to the suit.                

This bill is significant because it provides needed guidance on the discovery of ESI in California state court litigation and in particular California whistleblower litigation.  To read the bill, click here.

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