Summary of Proposed California Electronic Discovery Act

January 1, 0001


California Assembly Bill 5, also known as the Electronic Discovery Act (the “Act”), has been passed by the Legislature. If signed by the Governor, the Act would amend the California Code of Civil Procedure to add provisions specifically addressing electronic discovery. The Act is nearly identical to the proposed electronic-discovery amendments passed by the Legislature and vetoed by the Governor last year in Assembly Bill 926. One notable difference, however, is that the Act contains an urgency clause; once signed by the Governor, the Act’s provisions will be effective immediately.

The Act’s provisions largely track the electronic-discovery amendments to the Federal Rules of Civil Procedure, which took effect in 2006. The Act defines “electronically stored information” (“ESI”) as “information that is stored in an electronic medium” and defines “electronic” broadly as “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.” The Act makes explicit that parties may inspect, copy, test, or sample ESI in the possession, custody, or control of any other party to the action. Other significant provisions of the Act include:

  • Form of Production. When requesting the production of ESI, the requesting party may specify the form in which the information is to be produced. If no form is specified or agreed to between the parties, the responding party may produce the ESI in the form “in which it is ordinarily maintained or in a form that is reasonably usable.” The responding party need not produce the same ESI in more than one form.

  • Extent of Production. Similar to the Federal Rules, a party does not have to produce ESI that “is from a source that is not reasonably accessible because of undue burden or expense.” The responding party must state in its written response to the discovery request which sources it will not search because they are not reasonably accessible. In a significant departure from the Federal Rules, however, the Act places the burden on the responding party to seek a protective order and demonstrate that the requested ESI “is from a source that is not reasonably accessible because of undue burden or expense.” The Federal Rules, by contrast, put the onus on the requesting party to move to compel if the responding party claims that ESI is not reasonably accessible because of undue burden or cost (see FRCP 26(b)(2)(B)). The Act also allows the court to order production of ESI for “good cause” even if the responding party establishes that the ESI is not reasonably accessible. In such circumstances, however, the court may “set conditions” for the production from sources that are not reasonably accessible, including shifting the costs of production to the requesting party.

  • Limits on Production. The court may impose limits on the discovery of ESI if one of a number of conditions exists, such as the information is able to be produced from a less-burdensome source, the discovery sought is unreasonably cumulative or duplicative, or the likely burden or expense of producing the ESI outweighs the likely benefit.

  • Sanctions Safe Harbor. Similar to the Federal Rules, the Act provides a “safe harbor,” stating that “the court shall not impose sanctions” against a party for ESI that is lost “as a result of the routine, good faith operation of an electronic information system.” The Act extends the safe harbor slightly further than the Federal Rules, however, providing that ESI that is “damaged, altered, or overwritten”—in addition to “lost”—is subject to the safe-harbor provision (compare FRCP 37(e)).

  • Privileged Information. A party that inadvertently produces ESI that is subject to a claim of privilege or attorney work product protection may seek the return of the ESI by notifying the receiving party. Upon such notice, the receiving party must sequester or return—and may not use—the ESI the claim of privilege is resolved. The receiving party may file a motion within 30 days of the notice to contest the producing party’s claim of privilege over the ESI.

  • Third-Party Subpoenas. Third parties responding to subpoenas are subject to the same rules as parties to the action responding to discovery requests.

The full text of the Act may be found here.