2009 CHANGES IN CALIFORNIA DISCOVERY

RULESThe California Electronic Discovery Act

Batya Swenson

E-discovery Task Force

bswenson@hansonbridgett.com

BACKGROUND

• Federal courts and 20+ states have already codified discovery rules for electronically stored information (“ESI”)

• ~95% of all business data

• 100 billion

California’s E-Discovery Rules

• Let’s just call it the EDA for now (Electronic Discovery Act)

• The EDA modifies existing discovery provisions to specifically account for ESI discovery

• EDA's provisions set out the manner for requesting, responding to and producing ESI, including subpoenas for ESI.

Been there….

• Since 2006, federal courts have specifically addressed the discovery of ESI

• EDA is similar to the federal rules

• EDA establishes ESI’s importance in state court litigation

THE EDA

• Why is it important to you?

• What key concepts may affect you?

• What’s new and different?

WINNING CASE AND AVOIDING SANCTIONS

• Attorney is often an outsider and needs your help– New client, New department, New type of case– Gathering evidence, imposing hold, responding to discovery

• Sanctions mandatory as always for discovery abuses– No more excuses for failure to manage and preserve ESI – Monetary, Evidence, Issue Sanctions

• NEW - Safe Harbor Rule – Does not avoid preservation obligation– Routine, good faith operations of IT systems – Retention policy/program

• Discrepancy or consistency in implementation? – Corruption of data

PARTIES MUST ACT EARLYTO AVOID LOST ESI

• Not a new concept in discovery but more developed and codified with respect to application to ESI

• Where Records Managers are most likely very involved

• Preservation Obligation – “Reasonable anticipation of litigation”– What does this mean? Claims; Demand letters; Complaint– Who decides if the obligation has been triggered?– Be proactive – no sanctions for too much care and attention

• Litigation Holds – Initial Analysis (Relevant ESI/Custodians/Sources/BackUp/Retention Program)– Implementation – Who’s the point person– Communication and Buy In – Confirmation by staff– Oversight – Duration of litigation– Attorney’s Role – As required by courts

NEW - FORM OF PRODUCTION• Form of ESI identified in discovery

Result: requests more sophisticated requests in state court matters

• RESPONSESAs requested OR Ordinarily maintained & reasonably

usable

• OBJECTIONS: “must identify the types or categories of sources of ESI that it asserts are not reasonably accessible”

NEW - EARLY MEET AND CONFER REQUIREMENT

• Pre-CMC Meet and Confer Conference Topics– Preservation – Form(s)– Timing– Scope – Privilege (Clawback Agreement)– Confidentiality (Protective Order)– Cost allocation– Catch-all; Discovery plan (Phased)

NEW - THE STANDARDWHAT COUNSEL WILL FACE IN A DISCOVERY MOTION

• NOT REASONABLY ACCESSIBLE – BURDEN OF PROOF• “UNDUE BURDEN OR COST”: BALANCING TEST

– Less expensive, more convenient source– Unreasonably cumulative or duplicative– Ample opportunity to obtain the information through discovery– Burden/expense v. benefit

• amount in controversy• parties’ relative resources • importance of the issues in the litigation• importance of the requested discovery in resolving the issues

• YOUR ROLE– Helping counsel gather the facts– Tracking investment of staff time and other hard expenses– Declaration under penalty of perjury – PMK Depositions

• COURT CAN ORDER PRODUCTION BUT REALLOCATE COSTS

NEW - SUBPOENAS

• Issuing party must take reasonable steps to avoid undue burden or expense on non-party

• Similar rules in terms of form apply• Responses in requested form• Burden still on objecting party on issue of

reasonable accessibility• Court can order production but reallocate costs

– Track expenses

BEST PRACTICESFOR RECORDS MANAGERS

• Will vary with size and type of organization– subpoenas, repeat litigation, other responsible staff and support

• Implement retention policy if it exists– consult with counsel about the policy or writing one

• Inform yourself of IT structure, data management and destruction processes

• Educate and assist counsel • Act early and stay invested when a matter arises• Understand scope of matter, key players & potential

exposures• Communicate with internal case contact, IT and/or

attorney • Monitor implementation of hold internally

EXAMPLES

• Back-up tape recycled and Inbox of former employee lost

• Key employee laptop hard drive not searched

• Text Messages not captured

• Automatic email deletion program