It is no secret that the Federal Rules of Civil Procedure (FRCP) were amended at the end of 2006 to specifically address discovery of information stored electronically. Not to be outdone, the Judicial Council of California has proposed its own amendments to its Code of Civil Procedure (CCP) to deal with electronic discovery issues. The Council has requested public comment on its proposed amendments. If the proposed amendments ultimately become law, lawyers practicing in state court in California will have new rules to follow, and parties will face new burdens.
While the amended FRCP stayed clear of providing a precise definition of what constitutes electronically stored information, it does cover information "stored in any medium" so far as it can be "retrieved and examined." In this way, the amended FRCP avoids any specific definition that later could be outstripped by advances in technology.
The proposed CCP amendments take a different approach, referencing information that is stored in an electronic medium and relating to technology having "electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities." While this comes across as quite broad, the federal, general definition might be better, as it later may be less capable of evasion by a new technology.
The proposed CCP amendments differ markedly from the FRCP amendments when it comes to inaccessible information. The federal approach is that a party seeking discovery must seek leave of court to force a party to produce information that the latter deems inaccessible.
Under the proposed CCP amendments, however, a responding party would have to seek a protective order from a court to avoid producing information on the grounds that it is inaccessible or unreasonably burdensome. This approach increases risk for responding parties.
Still, even the CCP amendments, like the FRCP amendments, do allow for cost-shifting if production is burdensome and expensive, and also allow for relief from production if the information sought is available from less intrusive sources, is cumulative, or its value is far outweighed by the burden of production.
The proposed CCP amendments also are like the FRCP amendments in that they allow a requesting party to specify the form of production.
The proposed CCP amendments are more clear than the FRCP amendments in providing an actual safe harbor for information that has been "lost, damaged, altered, or overwritten" because of the routine and good faith operation of an electronic information system. This is good news. Lawyers and clients live in mortal fear of death-knell sanctions resulting from the failure to preserve and produce information. The proposed CCP amendments seem to supply added protection on that front.
Taking a somewhat different approach than the FRCP amendments, the proposed CCP amendments do not explicitly set forth a formal "claw back" procedure when it comes to privileged information that has been inadvertently produced. Rather, the proposed CCP amendments allows the producing party to notify the receiving party of the problem, and then the receiving party must immediately sequester the information either for return or for court determination.
It is likely that at least some form of the proposed CCP amendments will become governing law for cases in California state courts. There is no question that the world is becoming paperless, and discovery of evidence in lawsuits necessarily entails electronic discovery. Accordingly, courts must develop rules to deal with electronic discovery. There should not only be rules for cases in federal court, but rules for state court cases as well.
While rules developed by states such as California in some instances might work some advantages over previously developed federal rules, it would be helpful if state and federal rules did not differ too much. It is advantageous for parties and counsel to be able to abide by relatively uniform legal obligations when it comes to issues of importance, such as electronic discovery issues.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at [email protected]. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.
This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.