Governor Last Signature Needed To Pass Amendments on E-Discovery Law
Thursday, July 2, 2009 at 11:53AM Passed the Senate and Assembly, Waiting Governor’s Signature
Important new amendments in California’s AB-5, already passed through Senate and Assembly, make Email Archiving and Instant Message Data Recovery vital to most companies and institutions, by placing much of the onus of recovery on defendants in civil actions. The full senate analysis and documents follow, but some important highlights include:
• Supports previous laws that required production of electronic data, emails, instant messaging and other recoverable data in civil actions, while clarifying obligations for expense of recovery.
- Maps out acceptable methods for obtaining electronically stored information in discovery
- Reinforces the obligation to provide e-documents including email, instant messages and other data, including internet data, relevant to a case
- If a party objects to the expense of recovering data (usually because they don’t have a searchable email archive or data) the onus is on the objecting party to prove it is too expensive. “This bill provides that if a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense, and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By so objecting and providing the identifying information, the responding party would preserve any objections it may have relating to such electronically stored information.”
• “This bill provides that a party is seeking a protective order, or a party objecting to or opposing a demand for, the production, inspection, copying, testing, or sampling of electronically stored information, on the basis that the information is from a source that is not reasonably accessible, because of the undue burden or expense, shall bear the burden of so demonstrating. If it is established that the electronically stored information is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to specified restrictions in specified circumstances.”
Bill AB 5
BILL NUMBER: AB 5 CHAPTERED BILL TEXT CHAPTER 5 FILED WITH SECRETARY OF STATE JUNE 29, 2009 APPROVED BY GOVERNOR JUNE 29, 2009 PASSED THE SENATE JUNE 15, 2009 PASSED THE ASSEMBLY MARCH 12, 2009INTRODUCED BY Assembly Member Evans (Coauthors: Assembly Members Feuer and Tran) (Coauthors: Senators Corbett and Harman) DECEMBER 1, 2008 An act to amend Sections 2016.020, 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 of, and to add Sections 1985.8 and 2031.285to, the Code of Civil Procedure, relating to civil discovery, anddeclaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 5, Evans. Civil discovery: Electronic Discovery Act. The Civil Discovery Act permits a party to a civil action toobtain discovery, as specified, by inspecting documents, tangiblethings, and land or other property in the possession of any otherparty to the action. Existing law requires the party to whom aninspection demand has been directed to respond separately to eachitem or category of item by any of certain responses, including astatement that the party will comply with the particular demand forinspection by the date set for inspection pursuant to a specifiedprovision. This bill would establish procedures for a person to obtaindiscovery of electronically stored information, as defined, inaddition to documents, tangible things, and land or other property,in the possession of any other party to the action. This bill wouldpermit discovery by the means of copying, testing, or sampling, inaddition to inspection, of documents, tangible things, land or otherproperty, or electronically stored information. The Civil Discovery Act permits the party demanding inspection andthe responding party to agree to extend the time for service of aresponse to a set of inspection demands, or to particular items orcategories of items in a set, to a date beyond that provided in aspecified provision. This bill would permit the parties to agree to extend the date forinspection, copying, testing, or sampling beyond those provided inspecified provisions. The Civil Discovery Act requires any documents produced inresponse to an inspection demand to be produced as they are kept inthe usual course of business, or be organized and labeled tocorrespond with the categories in the demand. The documents are to beproduced on the date described above or as agreed to by the partiespursuant to an extension. This bill would make this provision applicable, in addition, todocuments produced in response to a demand for copying, testing, orsampling. The bill would furthermore provide that if a partyresponding to a demand for production of electronically storedinformation objects to a specified form for producing theinformation, or if no form is specified in the demand, the respondingparty shall state in its response the form in which it intends toproduce each type of information. In general if a demand forproduction does not specify a form or forms for producing a type ofelectronically stored information, the responding party would berequired to produce the information in the form or forms in which itis ordinarily maintained or in a form that is reasonably usable, butneed not produce the same electronically stored information in morethan one form. The bill would also provide that a party seeking a protectiveorder regarding, or a party objecting to or opposing a demand for,production, inspection, copying, testing, or sampling ofelectronically stored information, on the basis that the informationis from a source that is not reasonably accessible because of theundue burden or expense shall bear the burden of demonstrating thatthe information is from a source that is not reasonably accessiblebecause of undue burden or expense. If it is established that theelectronically stored information is from a source that is notreasonably accessible because of undue burden or expense, the courtmay nonetheless order discovery if the demanding party shows goodcause, subject to specified restrictions in specified circumstances. Existing law requires the court to impose a monetary sanction, asspecified, against any party or any attorney of a party for specifiedviolations. This bill would generally provide that, notwithstanding the aboveprovision, the court shall not impose sanctions on a party or anyattorney of a party for failure to provide electronically storedinformation that has been lost, damaged, altered, or overwritten asthe result of the routine, good faith operation of an electronicinformation system. This bill would declare that it is to take effect immediately asan urgency statute.THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. This act shall be known as the Electronic DiscoveryAct. SEC. 2. Section 1985.8 is added to the Code of Civil Procedure, toread: 1985.8. (a) (1) A subpoena in a civil proceeding may require thatelectronically stored information, as defined in Section 2016.020,be produced and that the party serving the subpoena, or someoneacting on the party's request, be permitted to inspect, copy, test,or sample the information. (2) Any subpoena seeking electronically stored information shallcomply with the requirements of this chapter. (b) A party serving a subpoena requiring production ofelectronically stored information may specify the form or forms inwhich each type of information is to be produced. (c) Unless the subpoenaing party and the subpoenaed partyotherwise agree or the court otherwise orders, the following shallapply: (1) If a subpoena requiring production of electronically storedinformation does not specify a form or forms for producing a type ofelectronically stored information, the person subpoenaed shallproduce the information in the form or forms in which it isordinarily maintained or in a form that is reasonably usable. (2) A subpoenaed person need not produce the same electronicallystored information in more than one form. (d) The subpoenaed person opposing the production, inspection,copying, testing, or sampling of electronically stored information onthe basis that information is from a source that is not reasonablyaccessible because of undue burden or expense shall bear the burdenof demonstrating that the information is from a source that is notreasonably accessible because of undue burden or expense. (e) If the person from whom discovery of electronically storedinformation is subpoenaed establishes that the information is from asource that is not reasonably accessible because of undue burden orexpense, the court may nonetheless order discovery if the subpoenaingparty shows good cause, subject to any limitations imposed undersubdivision (h). (f) If the court finds good cause for the production ofelectronically stored information from a source that is notreasonably accessible, the court may set conditions for the discoveryof the electronically stored information, including allocation ofthe expense of discovery. (g) If necessary, the subpoenaed person, at the reasonable expenseof the subpoenaing party, shall, through detection devices,translate any data compilations included in the subpoena into areasonably usable form. (h) The court shall limit the frequency or extent of discovery ofelectronically stored information, even from a source that isreasonably accessible, if the court determines that any of thefollowing conditions exists: (1) It is possible to obtain the information from some othersource that is more convenient, less burdensome, or less expensive. (2) The discovery sought is unreasonably cumulative
BILL HISTORY 2009
• June 29Chaptered by Secretary of State - Chapter 5, Statutes of 2009.
- June 29 Approved by the Governor.June 18 Enrolled and to the Governor at 10:30 a.m.June 15 In Assembly. To enrollment.
- June 15 Read third time. Urgency clause adopted. Passed and to Assembly. (Ayes 36. Noes 0. Page 1296.)
- June 10 Read second time. To Consent Calendar
- June 9 From committee: Do pass. To Consent Calendar. (June 9).
- Apr. 30 Referred to Com. on JUD.
- Mar. 12 In Senate. Read first time. To Com. on RLS. for assignment.
- Mar. 12 Read third time. Urgency clause adopted. Passed and to Senate. (Ayes 74. Noes 0. Page 558.)
- Mar. 5 Read second time. To Consent Calendar.Mar. 4 From committee: Do pass. To Consent Calendar. (March 3).
- Feb. 5 Referred to Com. on JUD.2008
- Dec. 2 From printer. May be heard in committee
- January 1.Dec. 1 Read first time. To print.
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